Stand Your Ground

The New York Times Knows Florida's Self-Defense Law Is Bad but Can't Figure Out Why

The dismissal of a manslaughter charge against a sheriff's deputy gives the paper another opportunity to misrepresent Florida's law.

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WPLG

Yesterday a Florida judge dismissed a manslaughter charge against Peter Peraza, a Broward County sheriff's deputy who in 2013 shot and killed Jermaine McBean, a black man carrying an air rifle. Peraza won the dismissal under a provision of Florida's self-defense law that allows a defendant to seek a pretrial hearing at which he can try to persuade a judge it is more likely than not that his use of deadly force was justified. That provision is unusual, and prosecutors argue that it should not apply to police officers. But as it typically does, The New York Times zeroes in on the wrong aspect of Florida's supposedly benighted law, which it says "makes it easier for people to claim self-defense if they have a reasonable belief that their lives are threatened, whether the threat proves real or not."

A similar standard applies throughout the country—even in New York, where the use of deadly force is legal if "the actor reasonably believes that [the] other person is using or about to use deadly physical force." In this case, Peraza and other deputies were responding to multiple 911 calls about a man walking down the street with a gun. Peraza testified that McBean ignored repeated commands to drop the "weapon" and instead pointed it at the cops. "I've never been so scared in my life," Peraza said, adding that he saw McBean as a threat not only to him and his colleagues but to "women and children in the pool area" of McBean's apartment complex, which he was approaching.

It turned out that McBean, who had just bought the camouflage-colored air rifle at a pawnshop and was heading home with it, was listening to music through earbuds that may have prevented him from hearing the cops' commands. But Peraza said he did not know any of that at the time and took the action he thought was necessary to protect himself, his colleagues, and the bystanders. Legally, that belief could have been reasonable even though it was based on a threat that proved illusory, as the judge apparently concluded. But Peraza could have mounted the same defense in New York or any other state.

The difference is that in New York he would not have had that opportunity until he went to trial. In Florida, by contrast, someone who uses deadly force in self-defense has "immunity from criminal prosecution," which the Florida Supreme Court has interpreted to require the option of a pretrial hearing like the one Peraza had. Florida legislators added that provision in 2005 as part of the same law that eliminated the duty to retreat for people attacked in public places. But the latter provision was not relevant to Peraza's defense (just as it was not relevant to George Zimmerman's defense) because by his account he did not have the option of retreating. Times reporter Niraj Chokshi is therefore misleading his readers when he says Peraza "invoked the state's so-called Stand Your Ground law as a defense." What actually happened is that he invoked a standard defense, a defense he could have used in a state without a "stand your ground" law, but did so in an unusual setting—a pretrial hearing instead of a trial.

The rationale for such hearings is that someone who claims he used deadly force in self-defense should not have to go through the rigors of a full trial unless the prosecution has a strong case—stronger than the usual minimum requirement of probable cause. If the defendant prevails by a "preponderance of the evidence" standard at the pretrial hearing, it is hard to see how the prosecution could have proven him guilty beyond a reasonable doubt in a trial. Assuming that the jurors' understanding of the law and view of the evidence would have been similar to the judge's (which may or may not be a reasonable assumption), this option should not change the outcome—just the amount of time, effort, stress, and money required to arrive at that outcome.

But the Times is in no position to report on or pontificate about the controversy over the legal provision that Peraza used because it does not seem to understand which provision that was, and its confusion about Florida's law is not limited to one reporter. In a 2012 story about Zimmerman's shooting of Trayvon Martin, reporters Lizette Alvarez and John Schwartz said that "under Florida's lenient self-defense law…any person who perceives a threat to his life is not required to attempt a retreat and has a right to use a weapon." That description is incorrect, since the law requires a reasonable belief; a mere perception will not do. Mentioning the duty to retreat in this context is also misleading, since the absence of such a duty played no role in Zimmerman's defense, as Times reporter Cara Buckley conceded a few months later, even while insisting that the case was "spotlighting Florida's Stand Your Ground law."

In a 2013 editorial about Zimmerman's acquittal, the Times incorrectly asserted that Florida's self-defense law is unusual because "a person may use deadly force if he or she 'reasonably believes' it is necessary to prevent death or great bodily harm—a low bar that the prosecutors in this case fought in vain to overcome." That "low bar" is no higher in New York or any other state. In 2014 Alvarez claimed "the 2005 law makes it easier for people to claim self-defense if they have a reasonable belief that their lives are threatened, whether the threat proves real or not"—the highly misleading gloss echoed by Chokshi in his story about the Peraza case.

The Times knows "Florida's contentious self-defense law" is bad. It just can't figure out why.

[This post originally misidentified Chokshi as a woman. Sorry about that.]

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  1. That belief could have been reasonable even though it was based on a threat that proved illusory, as the judge apparently concluded.

    Only if carrying a rifle and nothing more means that you can “reasonably believe that [the] other person is using or about to use deadly physical force.

    Which, I suppose, means that anyone at all could have stepped out and blown the guy away. People in passing cars, people seeing him walk down the sidewalk – every single on of them could have gunned the guy down in justifiable self-defense.

    No, the NYT didn’t miss the point that every state has the same standard as Florida. They missed the point that the cop walks on a double standard.

    1. With the mood of the country, I’m surprised they can’t make that leap right now.

    2. You ignored this:

      Peraza testified that McBean ignored repeated commands to drop the “weapon” and instead pointed it at the cops.

      Whether the cop was lying or not is a different story. But I would say anyone who points a gun at anybody else can reasonably be perceived as an imminent threat and dealt with accordingly. I would also say that if some doofus buys a gun (even an airgun) and walks down the street pointing it around for no reason, I will shed no tears at their removal from the gene pool.

      1. I did ignore that, because I regarded it as an obvious lie.

        Which is it – the guy couldn’t hear a thing and wasn’t aware of the cop because of his earbuds, or he turned on the cop that we wasn’t aware of and pointed a gun at him?

        Naturally, if you assume that the cop’s rote recitation of the necessary magic words to absolve himself is the truth, he did the right thing.

        The only way the cop’s version of events makes any sense at all is if this was a case of suicide by cop. Otherwise, you have to believe that the dead guy intentionally pointed a toy gun at cops, which only makes sense if you want the cops to kill you.

        So, there is a scenario that the cop isn’t lying, but I have little reason this is the scenario that actually obtained.

        1. It’s a little like that massive roundhouse punch Micheal Brown managed to land without breaking the front windshield of a cop car. The cops says that what happened, the DA refused to question him about, so that is obviously what must have happened.

          1. As I recall, he supposedly had the stolen cigars in the hand he was throwing punches with, yet miraculously the cigars weren’t crushed or mangled.

            1. And Wilson knew they were the stolen cigars, despite testifying later that he hadn’t received the report about the robbery and was not looking for Michael Brown.

        2. I will admit this:

          I don’t know if there was any corroborating testimony (which does not include testimony by other cops). It sounds like there were some potential witnesses around. Did anybody who isn’t a cop (or dead) witness this interaction? Was there even an attempt to find them? If there were witnesses, what do they say?

        3. you have to believe that the dead guy intentionally pointed a toy gun at cops

          No, you can also believe that the guy was just blindly swinging the rifle around like a doofus and was unaware of his surroundings.

          The world isn’t one way or the other. There’s lots of differences between extremes. Whether the cop is lying is another question, but if you want to assume that, go ahead, jsut don’t take it that reality conforms to your biases.

          1. No, you can also believe that the guy was just blindly swinging the rifle around like a doofus and was unaware of his surroundings.

            Did anybody say that’s what he was doing? Or did the cop say he pointed the gun ‘at them’?

            Peraza testified that McBean ignored repeated commands to drop the “weapon” and instead pointed it at the cops. “I’ve never been so scared in my life,”

            See, its critical that you say the magic words “I feared for my life”. To set up the exculpatory incantation, he said the guy pointed the gun at him. Which leads me to believe either (a) the guy pointed the gun at the cop or (b) the cop is lying. Option (c) – he was pointing it randomly around doesn’t seem to be on the table, does it?

            1. What’s the difference? If some nut is walking down the street sweeping cars, houses, and people, does it matter whether he’s actually pointing it or is just oblivious? if the guy doesn’t understand the basic four rules, or even common sense, he can be just as dangerous.

              Your black and white world doesn’t correspond to reality. You are as nuts as this guy for pretending reality doesn’t apply.

              1. What’s the difference?

                The difference is that you posit a scenario that there is zero evidence for, and I am looking at what the cop actually said that got him off, and pointing out how unlikely it is that shit actually went down that way.

                I agree, if this guy actually was pointing his toy gun at people at random, this would be more defensible. But people don’t usually get off on charges based on scenarios that there is no evidence for.

        4. He’s coming right for us!

        5. I did ignore that, because I regarded it as an obvious lie.

          What exactly was “obvious” about it, your own confirmation bias aside?

    3. Peraza and the other cops claimed McBean pointed the gun at them. That, combined with his failure to obey commands (which he apparently could not hear), created the perceived threat. I’m still not sure the perception was reasonable, but it involved more than merely carrying a rifle.

      1. Consider this – the command to drop the weapon wasn’t lawful in the first place.

        I mean, the guy had every right to walk down the street in broad daylight with a real firearm. The cops, rolling up on the scene, see only a guy walking down the sidewalk with a firearm slung. That’s it. Whatever was *reported* is kind of irrelevant here – the cops themselves have seen no evidence that this man is committing or preparing to commit a crime.

        So what do they do? Not assume that he’s a law abiding citizen and approach him and try to get his attention and briefly detain him in a Terry Stop. Not send one of their own (the expendable FNG or whoever’s got the lowest rank) to approach him while the others have him covered. Nope – they all draw down and start screaming.

        1. I would be willing to bet – and this is pure mean-spirited speculation – that a) no one was in charge at that scene and that all were screaming at him and had had not training for dealing with this situation nor any cross-training with each other and no clear chain-of-command on the scene. Not a *team*, just a bunch of individual cowboys. And b) that the suspect turned around and the gun swung with him and that the ‘pointed it at us’ is solely due to the guy having it in his hands as he turned when the cops got the attention of the guy they were trying so hard to get.

          In any case – having a right to keep and bear arms means that a cop telling you to disarm yourself is not a legal command except for a limited number of exceptions and every one of them involves the officer identifying himself, informing you that you are being detained and then demanding you turn over your weapons for the duration of the stop/arrest.

          1. Oh – and that’s not pointed at you Sullum, just that no one questions the *initial conditions* that lead to the ‘perception of danger’ that lead to this guy getting shot.

            If they had simply sent a dude ahead to get his attention (because for some reason, like with cameras, cops forget headphones and deafness are a thing) while the others covered him then the danger would have been minimized and likely *everyone* would have gone home that night.

          2. Aga, I think your scenario is by far the closest to reality.

            Another case of cops creating an apparent threat that they wind up killing somebody for.

        2. Who says the rifle was slung? The cops claim he pointed it at them. I don’t have much use for government cops, but I know plenty of doofuses who I can easily see not giving a second’s thought to walking down the street with an airsoft or other realistic rifle, swinging it around like a stick, because they know it’s a toy. They would never think that anyone else might worry about some nut playing loosey-goosey with a real rifle. I could also see said doofus catching a glimpse of motion and turning around with the rifle in his hands and not think it might look like he was pointing it.

          Did his body language say “doofus”? Should the cops have noticed he was just rambling along with earbuds in? I don’t know, neither do you.

          1. Sounds like some excellent issues to be examined by a trial.

          2. I can easily see not giving a second’s thought to walking down the street with an airsoft or other realistic rifle, swinging it around like a stick, because they know it’s a toy

            If only there was testimony that’s what he was doing . . . .

            1. You dismissed the cop’s word, I doubt you’d believe him any more if he were in court since they’ve long since lost my respect for telling the truth, and you seem to have even less. What testimony would you take?

              1. You dismissed the cop’s word,

                I’ve taken him at his word, and I’ve dismissed what he says.

                Neither presents a good defense of what he did, and neither presents any supporting evidence for your scenario.

                Honestly, I think Aga probably has something close to the right of it above – a mob of cops working each other into a frenzy, and one of them having a premature discharge.

        3. I mean, the guy had every right to walk down the street in broad daylight with a real firearm.

          That’s illegal in Florida, so leaving aside the obvious unconstitutionality of open carry bans, the cops had legal grounds for stopping him.

        4. In texas you can carry a rifle, but not in a threatening manner.

          Kid was probably walking down the street pointing it at people and pretending to shoot them.

          Because that is what kids do.

          For all we know the kid saw the cops and thought it would be fun to point the gun at them.

          This is why we need video cameras on cops.

    4. So, deadly force is justified when you can “reasonably believe that [the] other person is using or about to use deadly physical force”? Maybe I should look up the actual text of the law. Because that sounds like just about every f*cking police interaction ever — made doubly true by their inability to keep their damn fingers off the triggers in frightening situations like ticketing a school teacher for going 20 mph in a 15 zone, or pointing a toy truck at officers crouching behind vehicles 100 yards away or …

      Which, I suppose, means that anyone at all could have stepped out and blown the guy away. People in passing cars, people seeing him walk down the sidewalk – every single on of them could have gunned the guy down in justifiable self-defense.

      I don’t think this law is one the state meant to pass, if that it what it actually says.

  2. Welp, looks like Sullum turned into a dirty copsucker. There goes another one.

    1. Possibly you’re joking, but just in case: I am not endorsing the outcome, just explaining how it happened.

      1. I’m just trying to jump in before the pack of lunatics shows up to express this sentiment honestly.

        And also, can’t tell if I’m joking? Do you even H&R, bro?

      2. He was being snarky as hell.

        Talking crap about Sullum around here is so outrageous, it can only be meant as a joke.

  3. “The rationale for such hearings is that someone who claims he used deadly force in self-defense should not have to go through the rigors of a full trial unless the prosecution has a strong case?stronger than the usual minimum requirement of probable cause.”

    I’m not sure what is meant by “rigors of a full trial”, there.

    If getting competent defense counsel against criminal charges is difficult in Florida, or if they’re concerned about innocent people being routinely convicted, if innocent people being intimidated into pleading guilty to lesser charges is a big problem, or the conditions in the jails where they hold people for trial are so horrific, or if bail requirements are routinely set too high–then maybe the State of Florida should work on those problems rather than let accused murderers off in a preliminary hearing.

    Fair trials for accused murders is one of the few things I’d pay taxes for willingly.

    1. The ‘rigors of the trial’ are the uncertainty and the *expense* – nobody goes to the public defender because they’re *good* (no offense to any of the PD here – I’m not saying you’re bad, only that if you have money you hire your counsel personally and don’t play roulette with the PDO), they go because they can’t afford to retain council on their own.

      1. Like I said, if they’re making special laws because their own trial process is so difficult, needlessly scary, or uncertain, they need to work on fixing that.

        Fair trials for accused criminals may be the most essential responsibility of good government, and if they need to carve out exceptions because they can’t do what they’re supposed to with trials, then how pathetic is that?

        Same kind of thing happens in Los Angeles. As of a few years ago, the LA County jail was so bad, people would plead guilty just to get out of jail and go a state prison where it was safer. I’ve had people tell me they’d rather do a year in the pen than 30 days in the LA County jail.

        Meanwhile, they had to do an early release program that included violent offenders–like wife beaters, sex offenders, and such–because of overcrowding in the jail.

        http://tinyurl.com/jzz5hrb

        They can’t comply with federal judges ruling that the jail is so overcrowded, holding people amounts to cruel and unusual punishment–but they have money for outrageous government employee pensions and to build a bullet train!

        I guess letting sex offenders leave early because of budget constraints is better than never trying them at all because of a preliminary hearing, but . .. . maybe that’s next. If it works in Florida, you know, anything’s better than solving the problems with the jails, prisons, and trial system, I guess.

        1. Dead white men recognized over a hundred years ago that being put on trial was a serious hassle, which is why they put the Grand Jury clause into the 5th Amendment.

          This Florida law sounds like an attempt to provide the same sort of protection, but by a different means since today grand juries have been ham-sandwiched into uselessness.

  4. Some daily statism:
    http://www.reviewjournal.com/o…..the-police

  5. In my eagerness to point out how unlikely it is that this should have been dismissed based on a highly unlikely tale told by the cops, I neglected to point out that Sullum’s basic point here is spot on – the NYT is populated by idiots who don’t know the first thing about what they write about, or know and are willing to lie.

  6. Legally, that belief could have been reasonable even though it was based on a threat that proved illusory, as the judge apparently concluded. But Peraza could have mounted the same defense in New York or any other state.

    The difference is that a non-cop could not possibly have relied on that defense.

  7. How about this:

    Before anyone can be brought to trial for a serious crime, he must be accused by a panel of fellow-citizens. Then a *second* panel of fellow-citizens considers the evidence and convicts if it’s convinced of guilt beyond a reasonable doubt, otherwise it acquits.

    If the defendant claims self-defense, have the prosecutor persuade both citizen-panels that it was *not* self-defense.

  8. I would just point out that The New York Times knows nothing of the sort; it has no brain. The Times is a concept, not a human being.
    I don’t feel too sorry for it that you attack its reputation, because it has no feelings, either. One hopes the staff will learn from the critique.
    Even the publication, California Lawyer, once reported that prosecutors (anonymously) liked three strikes law because it allowed them to punish people again for the same crime, and because they could impose heavier penalties than were in effect when the crime was committed, without questioning the illegality of doing so. When a legal publication fails to comment on or question prosecutors who admit to violating our constitutional “ex post facto” and “double jeopardy” protections, you can hardly expect mere “journalists” to do better, unless and until consumers complain (as I did in the case of CA Lawyer and you do here). Thank you.

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