Guns

Bystander's Defensive Shooting of Titusville Shooter Has Nothing to Do with "Stand Your Ground"

As often happens, news reports misunderstand what "stand your ground" laws mean.

|The Volokh Conspiracy |

It appears that an "unidentified vendor with a licensed, concealed weapon" critically wounded—and, more importantly, stopped—someone who had been shooting at a "Peace in the City" event yesterday at a Titusville, Florida park. Florida Today (J.D. Gallop) and Spectrum News 13 have reports (which should, as always, be taken with an extra grain of salt because the shooting is so recent).

According to police, the man who fired shots, had been involved in a fistfight with another person at the park. He left and returned minutes later with a gun and opened fire.

The unnamed vendor then shot the shooter, whose own shots had, fortunately, missed everyone.

If the facts are as described, the vendor deserves great praise; and the Florida shall-issue law, which lets pretty much any law-abiding adult get a license to carry concealed deserves praise, too. (One can, of course, debate whether on balance shall-issue laws are a good idea or a bad one, but this seems to be an example of its working as intended.) Right now, over 40 states are shall-issue (or don't even require a license); but when Florida shifted to shall-issue in 1987, it was just the 10th state to take such an approach, and many credit Florida for helping launch the movement.

But Florida's well-known "stand-your-ground" law (which also represents what is today the majority view among the states) is not relevant here, contrary to what the Florida Today story says, and what I expect others to say (again, given the history of media misreporting of this). Stand-your-ground laws generally resolve an important but narrow legal question that has been debate in the U.S. for over 200 years:

  • If you are threatened with deadly force (or rape or kidnapping or, in some states, some other serious crime)
  • outside your home (or, in some states, your workplace)
  • but you can avoid the threat with complete safety by retreating,
  • are you allowed to use deadly force to stay where you are and defend yourself (that's "stand your ground")
  • or do you not have the right to use deadly force because you can retreat (that's "duty to retreat")?

You can imagine situations in which this might arise, e.g., if you're in a car and someone is running at you with a knife, so you can just drive away, or if you're threatened by someone who you know won't attack you if you do retreat. But it only arises if retreating will avoid the threat with complete safety, so that (in theory) it's not "necessary" for you to use deadly force, since you have a nondeadly alternative (retreat).

But this is almost never in play when you are threatened by someone with a gun (unless it's the rare situation when you're sure he won't shoot you in the back if you leave). And it's likewise not in play if you're defending others from death or serious injury (as you are legally allowed to do), since your retreating won't prevent the threat to them (again, setting aside some rare scenarios, such as if they're all in the car with you and you can drive away). In the Titusville case, the defender is protected by the general law of self-defense, which in this respect is present in all the states; in Florida, the provision says,

A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

The defender does not need the "stand your ground" version of the law, which in Florida adds, "A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be."

Florida self-defense law does have an extra provision that is sometimes swept (confusingly, I think) under the "stand-your-ground" umbrella: The provision in Fla. Stat. 776.032 that lets defendants who claim self-defense get their prosecutions dismissed before trial, unless the government can persuade the judge that the self-defense claim is very likely unsound:

(1)?A person who uses or threatens to use force as permitted in [the substantive self-defense provisions] is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened ….

(3)?The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

(4)?In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

But, if the facts are as the news stories describe, the bystander who shot the shooter would have acted legally in all states, with or without Florida's specially self-defense-friendly provisions (however useful those provisions might be, substantively or procedurally, to criminal defendants who claim self-defense).

Thanks to InstaPundit for the pointer.

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  1. “The provision in Fla. Stat. 776.032 that lets defendants who claim self-defense get their prosecutions dismissed before trial”

    I don’t think that provision would be necessary if (a) Florida required grant juries in such cases (I’m not sure if it always does) and (b) if grand jurors only indicted people whom, after investigation, they actuallybelieved to be guilty. I know (b) does not describe current reality.

    1. You forgot (c): The grand jury conducts the investigation, instead of being spoon fed by the prosecutor.

      1. That would certainly help.

        I won’t say “in an ideal world,” because in an ideal world there would be no crimes for them to investigate – but in a more constitutionally faithful world.

  2. The amount of lying the media (along with leftist agitators) do with respect to “stand your ground” is truly remarkable. They’ll often say things like, “The shooter only has to feel threatened.” This is blatantly false. Every state, including Florida, requires that the fear be of death or serious bodily harm and that such fear is objectively reasonable. Another common one is (ominously) stating that one guy is now dead and not around to tell his side of the story. This, of course, has nothing to do with the duty to retreat, and is an indictment of self-defense in general.

    Liberals are truly sick, demented, perverted people.

    1. Putting words in liberals mouths and then declaring them sick. Classic strawman. Nice work

      1. Everything I posted is fact. If there are stupid words coming out of liberals’ mouths, that’s on them.

        1. You might well have the evidence to support that — but your argument would be more persuasive if you actually offer that evidence (with links, preferably).

          1. Fair enough. Below are a few.

            1

            2

            1. Two links to the same case. A case where a man, who didn’t seem to be in real jeopardy, shot and killed another man and was not charged under “stand your ground”.

              I’m not sure how this is evidence of your claims.

              1. If you read the original post, my claim is that leftists dishonestly state that one only need to “feel threatened” to use deadly force.

                1. So I grant those two articles do state the standard as “feel threatened” which is a debatable though not completely indefensible reading of the standard. For instance, the standard could require the other person be armed, or in the process of an assault.

                  The fact that it’s a perceived threat seems to allow for these instances where a person escalates a confrontation till the point they feel threatened, and then they get to shoot the other person.

                  You also said duty to retreat has nothing to do with it, but getting rid of duty to retreat is the whole point of stand your ground.

                  1. No, it’s completely indefensible. It makes it sound as though someone can just shoot someone because he subjectively feels like it, which is not the case.

                    My point is that the duty to retreat has nothing to do with this case, and had nothing to do with the shooting of Thugvon Martin.

                    1. Well objectively speaking, the articles didn’t say the wording of the law was “feel threatened”, they said the law allowed people to use deadly force if they “feel threatened”.

                      Which, by the shooters release without charge, is an accurate description.

                      And yes “duty to retreat” is relevant since when the confrontation became physical he would have been obliged to retreat.

                      And I’m done since there’s not much point engaging with someone who feels the need to write “Thugvon Martin”.

                    2. No, the duty to retreat is not relevant because he could not have retreated, lying on the ground after being assaulted by McGlockton. Zimmerman couldn’t have retreated either while Thugvon had him pinned on the ground.

                    3. To be honest, Zimmerman was *safe in his truck* and had been ordered by the police to *stay put*. No one has ever been able to offer me a good reason *why he got out of his truck* to where Martin could attack him.

                    4. He was not in his truck when the dispatcher (not police) told they didn’t need him to follow Martin.

                      He had left his vehicle because he was looking for the street sign to describe where he had seen Martin go.

                      Of course, most rational people don’t expect others to jump out of the bushes and begin punching them or banging their head into concrete. This is a (mostly) civilized country, after all.

                    5. It’s really incredible how you people are incapable of not lying. He was not “ordered” to “stay put.” The dispatcher said, in response to a question about whether he was following him, that “we don’t need you to do that.” To interpret that as an “order” requires either abject stupidity or intellectual dishonesty. Which is it?

                  2. Among other things, stand your ground eliminates the defendant having to prove that safe retreat was impossible.

                    The drive to eliminate “duty to retreat” started with battered-woman cases, such as a woman who retreated to a bathroom, locked the door, and when her abuser broke down the door, shot him. The prosecutor argued she could have climbed out a small almost vent-like window in the bathroom and she went to prison for murder.

                    Safe retreat if possible is good self defense strategy. But if a prosecutor, grand jury, trial judge, or trial jury decides the defenders fear for their life or limb was reasonable, then it is not necessary, under most stand your ground laws, for the defender to further prove in court that safe retreat was not an option.

                    Another point of stand you ground in Florida means that, if the preliminary investigation by police shows it is likely lawful self-defense, you can stay out of jail until the case is adjudicated further up the judicial system.

                    I followed the Tampa Bay Times data base on Florida stand-your-ground cases; about two-thirds were eventually acquitted. 30% of the defenders cleared were black; blacks are only 15% of the Florida population but are twice as likely to be crime victims and need to defend themselves than whites. They don’t have to go to jail, post bail, and likely lose their job and home, when the initial police investigation decides it was probably self-defense.

                    1. ActualRightWingPatriot|8.5.18 @ 10:19PM
                      Liberal media lying about SYG causing shootings

                      ABent|8.5.18 @ 10:31PM|
                      calling strawman, putting words in liberal’s mouth

                      ActualRightWingPatriot|8.5.18 @ 10:37PM
                      “Everything I posted is fact.”

                      Eugene Volokh|8.5.18 @ 11:01PM
                      Evidence?

                      ActualRightWingPatriot|8.5.18 @ 11:53PM
                      Huffington Post: Stand Your Ground Parking Lot Shooting
                      NBC News: Florida’s Stand Your Ground Law Incentivizes Violence

                      aluchko|8.6.18 @ 2:01PM
                      “Two links to the same case.”

                      Well, duh. Two links to two separate liberal sources using the SYG talking point on the same case. It would take little research to find Huff Post and NBC News articles/op-eds blaming the Trayvon Martin shooting on the SYG law. Would that be four instances, or just two?

                      I don’t always like ActualRightWingPatriot but this is ridiculous. For years anti-gun and anti-self-defense activists have blamed SYG in cases where (a) the defender did not cite it as justification, and (b) SYG did not apply anyway.

    2. They’ll often say things like, “The shooter only has to feel threatened.” This is blatantly false. Every state, including Florida, requires that the fear be of death or serious bodily harm and that such fear is objectively reasonable.

      Sure. Unless the shooter is a cop, in which case the fear need not be even remotely plausible. The person need not even be armed, or facing the cop. He can be handcuffed, or five other cops can be sitting on him holding him down on the ground.

      1. You’ll get no argument from me on that. I think the abuse of qualified immunity and the refusal of citizen juries to hold cops responsible for flagrantly criminal shootings (like that of Castile in Minnesota and of Shaver in Arizona) are a stain on America.

        1. Amazing that cops get qualified immunity, while the private sector gets the Park doctrine.

      2. Come on, you know that “gun control” laws never apply to cops!

    3. If Florida wants people to think the standard is “the fear be of death or serious bodily harm and that such fear is objectively reasonable”, they should probably stop letting people get away with SYG defenses for shooting unarmed people that are running away.

      1. Can you please cite an example?

        1. I ought to check to see if Tampa Bay Times still maintains the database they maintained on Stand Your Ground cases during the Trayvon Martin case.

          I recall no cases of a civilian defender shooting an unarmed assailant who was running away.

          If EscherEnigma wants to claim ” people get away with SYG defenses for shooting unarmed people that are running away” I think it ought to be on him to cite at least two cases.

  3. Regarding the Clearwater shooting, there is one legitimate argument, that McGlockton was retreating when he saw the gun and therefore, the shooting was unjustified.

    The stupidest one is that he was justifiably “defending” his girlfriend against Drejka. No. No matter how much the black community may want it, a white man mouthing off to your girlfriend doesn’t justify body slamming him.

    1. It may be a legitimate argument but it is not a conclusive one. Stepping back two or three steps is hardly in line with “retreating”. He could have merely been lining up for a better placed kick to the head of his victim.

      After having been knocked down by a vicious attack, and likely at least partially stunned, it is not fair to require the victim within scant moments of time to come to a decision about what his attacker is doing, especially when tunnel vision kicks in during such a situation.

      1. I don’t think he should have shot, but I’d like to see anywhere in America where a cop wouldn’t have walked after shooting in the same circumstances. Not that a cop couldn’t lose his job over it, but he’s not going to jail.

        1. A cop isn’t going to jail over it, a cop isn’t losing his job over it, a cop probably isn’t even losing a civil suit over it.

      2. Right, I’m agreeing with you. I’m inclined to give Drejka the benefit of the doubt because he had just been violently assaulted. But at least that argument is legitimate. All of the others are not.

      3. Oh bullshit.

        McGlockton was clearly moving backwards, and had no gun. This was willful homicide, justified by the idiotic Florida law.

        1. How did Drejka not know that he wasn’t moving backward to get a running start and charge at him again? After all, McGlockton had already shown his propensity to violence.

          In any case, how did the Florida law contribute. Please be specific.

          1. How did Drejka not know that he wasn’t moving backward to get a running start and charge at him again? After all, McGlockton had already shown his propensity to violence.

            By that “logic” anyone retreating after an attack can be shot. How does anyone know that a random person on the street does not intend to attack?

            In any case, how did the Florida law contribute. Please be specific.

            WTF appointed you to give me grades?

            Anyway, Drejka may get away with murder, literally, as a result of the Florida law. Nothing like vigilante justice, right? A guy being dead for no reason other than macho fantasies doesn’t trouble the gun nuts at all, apparently.

            1. I asked you to explain how the Florida law will lead to Drejka getting away with murder.

            2. “A guy being dead for no reason other than macho fantasies doesn’t trouble the gun nuts at all, apparently.”

              I’d note that McGlockton would undoubtedly still be alive if he hadn’t assaulted Drejka. So, you’re referring to McGlockton’s macho fantasies, I assume?

              I seriously doubt I’d have shot under those circumstances, but let’s not pretend McGlockton was innocent in this. He walked up to a man who was just talking, and assaulted him. And now he’s dead.

              Can’t we take the lesson from this that it’s a bad idea to assault people?

              1. Liberals don’t think blacks have any obligation to follow society’s rules. That’s what this comes down to.

              2. McGlockton was wrong to escalate a verbal confrontation into a physical one.

                Drejka was wrong for murdering someone who shoved him.

        2. I don’t know what “willful homicide” means.

          The shooter is entitled to use deadly force if he is in fear of death or grievous bodily harm. The assailant took some steps back, but didn’t disengage. The shooter had just been violently assaulted, he was on the ground with his assailant standing over him, and a reasonable man might believe him if he said he was in fear for his life.

          You may have decided not to shoot?but this guy thought it was necessary.

          1. I don’t know what “willful homicide” means.

            Get a dictionary. Look up “willful.” Then look up “homicide.”

            The shooter is entitled to use deadly force if he is in fear of death or grievous bodily harm.

            You left out the word “reasonably.” You could look that up as well.

            The assailant took some steps back, but didn’t disengage.

            What does that mean?

            this guy thought it was necessary.

            Too bad. That isn’t, or shouldn’t be, enough. You don’t get to kill someone because you “think it is necessary.”

            WTF is wrong with you people?

            1. You don’t get to shove them to the ground, either.

              That’s where this started to go wrong. Drejka was engaged in free speech. McGlockton responded to it with assault and battery.

              My take away from this is don’t escalate arguments into fights. Keep it at a verbal level.

              1. Well, that’s good advice, but that doesn’t justify the shooting.

                1. Because McGlockton appeared to step back? Is that what you’re basing your conclusion on?

                2. Assault actually does justify the shooting. The question is whether it adequately justifies it.

                  If McGlockton hadn’t attacked Drejka, we wouldn’t even be having this conversation; Either McGlockton would still be alive, or we’d have a clear cut case of murder on our hands.

                  The assault changed a situation where shooting was utterly inappropriate, into one where whether it was appropriate was a judgement call.

              2. Drejka was engaged in free speech. McGlockton responded to it with assault and battery. My take away from this is don’t escalate arguments into fights. Keep it at a verbal level.

                If someone calmly and respectfully inform your 18-year-old daughter — perhaps while she is sitting in a booth, dining with you at a restaurant — that he wished to impregnate her and bring her indescribable physical bliss, that would be free speech.

                If that person also tells her — perhaps from the sidewalk, or from a new BMW, as you sit on your porch — that her father is a bigoted yahoo from a no-count backwater town and that she should leave home to pursue education, opportunity, and modernity, that would be free speech. As would be urging her to renounce backwardness, bigotry, superstition, and conservatism (perhaps while she is ascending the steps to your church), and to embrace reason, education, tolerance, science, and progress.

                Would you limit your response to a verbal level, and refrain from escalating a discussion — likely not even an argument, because your 18-year-old daughter could be expected to be receptive to those messages — into a fight?

                Otherwise, if you pushed that person, he would be justified in shooting you in the heart . . . right, Brett Bellmore?

                1. Yes, I would. I have never, and I will never, lay my hands on another person who has not done so (or threatened to do so) to me. Period.

                2. Yes, Artie, it would be free speech, and no, I would not haul off and punch them.

                3. leave it to ak to create a strawman by willfully confusing the difference between “pushing” someone and knocking someone down with a surprise blow to the head.

                  1. Did Art “create a strawman”? I thought he was moving the goal post by going from the situation of the altercation under discussion to a totally different set of circumstances.

  4. So SYG laws, which permit the use of deadly force in some situations, are widely misunderstood.

    Gee, what could possibly go wrong?

    1. Did you not bother to read this article?

    2. Not so much widely misunderstood, as widely misrepresented.

      The law has always permitted the use of deadly force in some situations. SYG laws just clarify which sorts of situations, by underscoring that you’re not obligated to flee when attacked in a place you had the right to be in the first place.

      1. Yup. But what the left really seeks is to discredit self-defense entirely. Which of course, is why they want us all disarmed. They want Democrat Party voters to be able to attack conservative Americans with impunity.

    3. Gee, look who’s consistently misunderstanding them and misreporting them. Wonder exactly why that is?

    4. Misunderstood? Stand Your Ground laws are misrepresented by gun banners and the media agitating against legal guns and lawful self defense.

      SYG were explained when I got my handgun carry permit.

      The local newspaper carried an op-ed against the handgun carry permit claiming all you had to do to get a permit was sit through a 45 minute videotape by the state attorney general. I had just been through the process. The video was part of the four hour class on self defense law. Plus a four hour class on gun safety. Both classes with a written exam. Then firing qualification at the firing line. Then filing application for permit, with fingerprint cards for state and federal bureaus of investigation.

      I don’t think there is anything like a misunderstanding at all. The anti-gunners and anti-self defense types consider themselves better, wiser, superior. They don’t misunderstand. They misrepresent in pursuit of their agenda.

  5. News reports that promote misunderstanding of gun control laws and gun control issues almost invariably point in one direction – promoting additional gun control and gun bans.

    I became a gun rights activist in 1994, prompted by the 1994 Federal Assault Weapons ban, its sheer dishonesty and the sheer dishonesty of the media that promoted it.

    In the time period of about 2000 – 2010, the media seemed to become a little more even handed in its coverage of the gun control debate.

    All of this changed after Sandy Hook in 2012, and I was astounded by the renewed shamelessness of the gun control media. They really hide behind the First Amendment to destroy the Second.

    1. Anyone who calls for a ban on “assault weapons” is either stupid or dishonest. There are no other options.

  6. Legal officials get this wrong too. The video-taped shooting in a parking lot the other week is a great example. There the legal question really was whether the shooter had a reasonable fear for his life, not whether he had the ability to retreat, so SYG never would have come into play, but the prosecutor still claimed they didn’t bring charges because of SYG.

    1. Part of that is because the same law that removed the duty to retreat also provided OTHER protections in the event of a self defense claim. But they’re separate. Even if the duty to retreat is restored (and thus, “SYG” repealed), the other protections would remain.

    2. “the prosecutor still claimed”

      so the problem is not what ordinary folks know, but what prosecutors let fall from their mouths in press conferences.

  7. One has a Ninth Amendment right to do one’s duty, and we have a duty, properly termed militia, to defend others, understanding militia as the activity to which one agrees by embracing the original, Lockean, social contract. See http://constitution.org/soclcont.htm

  8. I get it, a real shooting situation is just like this, it’s at close range, and over in a matter of seconds. That’s why training for citizens and police is so important.

    Shooting someone who is actively attacking you is one thing, shooting someone once the threat is reduced is another. The guy pushed him down on the ground then backed up reducing the physical threat. At this point with the guy backing up (in my opinion) he should have told the attacker he was armed or draw his weapon but not fire unless the attack continues.

    I hear all too often today about police shooting a fleeing suspect. People get the idea if it’s ok for police to shoot in certain situations, it’s ok for them.

    In Arizona when threatened you can “defensively display” your weapon. As a deputy sheriff I pointed my weapon at suspects on a regular basis, but in Arizona citizens can not draw your weapon and point it at the subject.

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