Don't know if this constitutes prohibited "general political discussion." If so, just delete it; I won't be offended.

The topic here is as follows:

You can have the most permissive, un-infringed laws imaginable with regards to gun sales and CCW issuance. It doesn't mean much if the right to self-defense is not recognized in the criminal justice system. And in 49 out of 50 states, that right is not recognized.

Florida not long ago became to first state to fully implement the right to defensive use of a firearm. The new law states that if you brandish or fire a gun in what you claim was an act of self defense, and you are arrested and charged as a result, the burden is on the prosecutor to make a showing that you are guilty. This means a special pre-preliminary hearing takes place where the prosecutor has to make a showing that you were not acting in legitimate self-defense.

Everywhere else that I am aware of, this is not the case. I have worked in criminal defense for 20 years. In my experience (admittedly in California), if you defend yourself using a firearm, you will be charged with, at a minimum, Assault with a Deadly Weapon.

Self defense? Fine, tell it to the jury. Meanwhile, you will be out 10% of your bail, and fees for your lawyer and private investigator. And you could easily lose the trial. Even if you win, you will be out a minimum of $200,000 if you caused your attacker to die ($100,000 for your 10% of bail, $100,000 for your attorney (and that's cheap!). Oh yeah, plus $20,000 for me, your private investigator.

What kind of right is that?

I have a client doing Life Without Possibility of Parole because he killed a Crips gang member WHO SHOT AT HIM TWICE before my client ever drew his weapon. The appelate lawyers and I have been working on his case for 10 years and, God willing, we will eventually get him out.

The sticky thing of it is, and I am not trying to sow division, but in Florida, law enforcement and the prosecutors are vehemently against the new laws that fully protect the right of self defense.

Don't get me wrong, LE's position is definitely understandable; the new Florida law potentially makes it harder to prosecute a murderer. But still, without the new law as described above, the right of self defense is weak indeed.

Putting the burden of proof on the prosecution, before allowing a case to proceed to trial, seems good to me. But I recognize that Florida is the only state in the Union with this law. Maybe I'm not seeing the whole picture.

Any law enforcement, prosecutors, or civilians who want to weigh in?

Maybe I'm misunderstanding. I'm a civilian. I don't live in Florida or California and I'm not a lawyer.

My state has statutes for when it's justified to use deadly force to defend yourself or others (including whether you have duty to retreat or not). It doesn't matter if it's with your fists, a crowbar, or a pistol.

There's a different set of statutes for who's permitted to own a firearm and and another set for who's permitted to concealed carry a handgun.

The way I understand it, if you aren't permitted to have a pistol, but used one in what was determined to be a valid self defense shooting, you wouldn't be charged with murder or assault for protecting yourself with the firearm, but you could be charged for possession of a firearm you weren't permitted to have. I believe unless you're a felon in possession, that's a misdemeanor.

Like I said, not a lawyer, but that's how I understand it where I live.

I was an FBI agent for 25 years, and I only worked violent crime. I spent 17 of those years on Indian reservations, where all felonies go through federal court. I worked a lot of assaults and murders.

In the federal system, self defense is an affirmative defense. You can claim it at trial. In reality, if there is a whiff of self defense the U S Attorney’s Office (the federal prosecutors) will decline the case. Its not worth their time. “Lack of prosecutive merit.”

A couple of examples. Guy A is pissed at Guy B, and throws rocks at his securely locked house. Guy B slides open a window (barred), pokes a shotgun through the bars, and kills Guy A stone dead. Since Guy A was the aggressor, they declined. Luckily Guy B was a felon and the shotgun was sawed off on both ends, so we were still able to put him in time-out for a couple of years. (But no murder charge - just the 922 stuff.)

Just down the road, Fella A showed up at Fella B’s house, screwed the front door shut, and began to paint the word SNITCH on the front. He had an AR over his shoulder. He got halfway through the T (so it read SNIL) when Fella B opened up through the door with his own AR. Fella A staggered off and laid down in the yard. So far, so good. Then Fella B’s nephew came out and administered a coup de grace of the .45 variety through his head. No charges for anyone. (I’ve told this story before if it sounds familiar. I arrested Fella B six days later for shooting a different guy. B sat in the pokey a while, then the second victim crawfished and B was free again.). Nobody even considered charging the juvie. They didn’t start it.

I had to testify in ABQ a couple months ago on an old rape case. I was talking to an old friend AUSA who had just been no-billed at the grand jury on a deal where a guy heard someone messing around near his horse trailer at midnight. He got out his trusty Marlin Model 60 and cracked off a few rounds. He said he was aiming in the air, but he managed to hit a 19 year old girl in the head. Lights out for her. The AUSA told the agent she would take it to the grand jury, but it would probably end there. It did.

The right of self defense is alive and well, at least in the federal system. The sky ain’t fallin’ where I sit. But the idea of it does sell a lot of CCW insurance and magazine articles.

__________________
“What you got, ain’t new.”

The difference lies in who has the burden of proof.

In most states, when you claim self-defense, you are admitting that you committed the crime, so the prosecutor doesn’t have to prove anything more for you to be found guilty. It is the defendant’s responsibility to prove that the required elements of self-defense were met and therefore the crime was “justified”.

With Florida’s new law, the prosecutor must prove not only that the crime happened but that it was not self-defense.

Even in my country where carriage of any weapon (knife, firearm, impact weapon or anything modified to be used as a weapon) for self defence is prohibited by various laws self,defence of yourself and another is protected in law.

There is a twofold test to determine if self defence is relevant in a given situation. Objective, what you believed, and subjective, what any other reasonable person would believe, in the same circumstances (have I got that the right way around?).

So, it's not about the 2nd amendment. It's about use of deadly force. That makes sense.

__________________
Vegan by proxy.

Decades back there was guy in NYC of all places that used a illegally owned gun carried illegally who defended himself on a subway. The only charges that stuck were the firearm possession charges. In anti gun states there is a good chance of being arrested, and put through the wringer. Usually though the juries have seen through the bias, and voted for the truth.

Unfortunately the premise of the OP is just, well false. There are 24 states with "Stand your Ground" Self Defense laws. Most States allow you to defend yourself in your own home.

Heck, even in Illinois here, an otherwise not as friendly place for firearms, allows for deadly force in your house against someone committing a forcible felony.

All but Ohio, the burden of disproving self defense lies with the state.
The Problems of Ohio’s Current Laws on Burden Shifting in Self-Defense Cases | Buckeye Firearms Association

http://www.ncsl.org/research/civil-a...ur-ground.aspx

States That Have Stand Your Ground Laws - FindLaw

This is not the case. Self-defense is legal and often the person will not be charged, but if they are it is them who have to prove it was “justifiable”. In Virginia, as well as many other states, self-defense is what is known as an “affirmative defense” which means by claiming self-defense, the accused is confessing to the charge. It is then the responsibility of the accused to prove that their actions were either “justifiable” or “excusable” to then be found not guilty.

This is supported by Virginia case law:
McGhee v Commonwealth, 1978
Johnson v Commonwealth, 1949

Thank-you for your concern. Along with a healthy serving of awareness, avoidance, and common sense, I'm good.

Arizona Revised Statutes Title 13. Criminal Code § 13-411. Justification;  use of force in crime prevention;  applicability

A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of arson of an occupied structure under § 13-1704 , burglary in the second or first degree under § 13-1507 or 13-1508 , kidnapping under § 13-1304 , manslaughter under § 13-1103 , second or first degree murder under § 13-1104 or 13-1105 , sexual conduct with a minor under § 13-1405 , sexual assault under § 13-1406 , child molestation under § 13-1410 , armed robbery under § 13-1904 or aggravated assault under § 13-1204, subsection A , paragraphs 1 and 2.

B. There is no duty to retreat before threatening or using physical force or deadly physical force justified by subsection A of this section.

C. A person is presumed to be acting reasonably for the purposes of this section if the person is acting to prevent what the person reasonably believes is the imminent or actual commission of any of the offenses listed in subsection A of this section.

D. This section includes the use or threatened use of physical force or deadly physical force in a person's home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be.

__________________
Ad Astra Per Aspera

That does it. I'm tired of this retirement ****, sitting around at the club all day playing poker and drinking adult beverages. I'm going to law school, and I'm going to make it all better. I promise.

Wonder if they'll let me carry in law school?

Hold on a second. I'm in my bed, a meth-crazed freak with three teeth and pupils the size of pin points breaks in, starts ransacking my house; I catch him and he begins attacking me with some sort of weapon in spite of the fact that two big Rottweilers have ahold of him; I shoot him, kill him, and I've committed a crime? Horse pucky.

Not in NC.

__________________
642-1, M&P15 TS

Not exactly. You are admitting you committed the ACT, not crime. In the law, words matter.

__________________
“What you got, ain’t new.”

As does intent. And the circumstances of the act.

__________________
642-1, M&P15 TS

The OP has lead a sheltered life in Cal. As already stated self defense in legal in AZ and if you claim it, the police must prove otherwise before they can charge you. While New Mexico law is less clear, case law does support SD and rarely will you be charged if the investigation shows you acted in self defense.

Sent from my XT1254 using Tapatalk

__________________
Support your Police, & NRA

Nor in Oklahoma.

To say that you shot someone in lawful self defense is not the same as admitting to a crime. Not by a long shot.

__________________
America First

I'm glad I'm roostin in the Commonwealth...…Where right is still right.


.
Kentucky Revised Statutes
KRS Chapter 503


503.085 Justification and criminal and civil immunity for use of permitted force -- Exceptions.

(1) A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(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) of this section.

Effective: July 12, 2006 History: Created 2006 Ky. Acts ch. 192, sec. 6, effective July 12, 2006.

.

__________________
"IN GOD WE TRUST"

Well, OK. As long as it is in a nice holster.

Hmmmmm..............

Last time I checked, in North Carolina, you have a perfect right to defend yourself.

Now I think this depends on your definition of when, where, how, and under what types of conditions you can apply deadly force.

__________________
Un-Reconstructed Southerner

Just remember, folks -- if you are charged with a crime and need a legal defense, the person to talk to is a LAWYER, and NOT a private investigator...

__________________
Pisgah

__________________
America First

In the situation you mentioned, the prosecutor would probably choose not to press charges, because of the belief that it is clear self-defense.

However, I am talking about the situations where the prosecutor decides to charge the person acting in self-defense. If your state has a “Stand Your Ground” or “Castle Doctrine” then you are in a better position. If not then it becomes a matter of whether the act was “justified” in order to be found innocent. By claiming self-defense you are admitting to killing the man. It is then you and your lawyers responsibility, in most states, to prove that you were “justified” by showing that the elements of self-defense were met. If the jury feels that you did not prove self-defense, then you will most likely be found guilty of murder because by your own admission you killed the man.

I never give legal advice, and I don't think there was any advice contained in that post. It was just a heads-up about how things go down in State court, and how FL is the first and only state to give you the opportunity to claim self defense, before you are in trial.

That has always been my understanding of the law, and it is certainly what I have seen play out in the courts. Everywhere but Florida, the burden is on the defendant to prove self-defense, and the only place to do that is at trial. Self defense will not reliably prevent you from being prosecuted. The decision to bring charges is solely at the discretion of the prosecutor.

As the other poster said, it's true that the Feds don't often charge self-defense homicides as murder. But that's because the Feds don't prosecute simple murder cases in the first place. Homicides fall to the States: "Murder . . . is a quintessential example of a crime traditionally considered within the States' fundamental police powers." US v. Drury

Just wanted people to know that stand-your-ground does not give you an opportunity to claim self-defense until you are actually in trial. And then the burden is on you and your attorney.

Definitely hire an attorney if you have ANY legal problem. He'll worry about the investigator.

And no, I'm not shilling for CCW insurance. Just relating the experience of clients who have been gob-smacked to discover that their only chance to assert self-defense is at trial, and that the burden of proof will be on them, not on the State.

Anyway, some wiser forum members than I have advised me to give the topic a rest, so I'll drop it and go back to thinking about Smith & Wessons.

I know that.

Not going to get into a back and forth discussion on this. North Carolina has Castle Doctrine.

Your statement is that someone who shoots in self defense is admitting to a "crime". That's the term you used, and it's wrong. You didn't phrase it as "admitting to killing the man". As someone else says, words matter when it comes to the law. I wouldn't be admitting to any such thing as a crime, no matter which state I live in, but in this case, I am referring to my state of North Carolina and none other.

That was my point. There is no crime in a legal case of self defense. Case closed, far as I'm concerned.

There has to be more to the OP original story of a man defending himself from a gun wielding attacker. Care to elaborate? Even in kommifornia, you have SD rights in your home or in public. A man shooting at you in either location is a good SD shooting, unless there was something eklse involved? Like maybe your client was carrying illegal &/or maybe a convicted felon who could not posses a firearm??
I agree,carrying a gun or having a gun at home for sd is a huge burden not to be tacken lightly. Ig I ever have to defend myself or family, I will assume a poop storm & litigation, it is the way things go in most of the US.

__________________
NRA Cert. Inst. IDPA CSO

I’ve put a few dozen people into federal prison on federal murder charges.

Title 18 USC Section 1111.

The feds do indeed prosecute murders, even simple ones.

Also, if you are charged in a homicide your lawyer will have ample opportunity to let the prosecution know you are going to claim self defense. Phones calls, preliminary hearings, pre-trial conferences, and the like. In my cases I would tell the AUSA’s upfront before a charging decision was made. Clear cut cases weren’t charged, and (as noted in my previous post) even very shady ones were often declined, too.

__________________
“What you got, ain’t new.”

The only witness to the shooting, other than our client and the decedent, was the best friend (and fellow gang member) of the decedent. Naturally, he had no desire to help our client by testifying as to what he saw take place, so when the original trial took place, he went into hiding.

I was brought in after our client lost the trial. It took me a year to find the witness, and two years of pursuing and cajoling him, to get him to write out a sworn declaration that his buddy had fired twice at our client.

The attorney successfully used the declaration to convince an appellate court to throw out the jury verdict. That took another 7 years. Now the client sits awaiting a new trial.

The prosecutor has a copy of the statement. He knows the truth about what happened. But he's doing everything he can to protect his guilty verdict and keep the client in prison. No one likes to admit he was wrong and locked up an innocent man.

That's why it's frustrating when my fellow CCW holders are so complacent and believe that Stand Your Ground, etc. will automatically protect them.

I wasn't trying to troll the forum with all this. I just wanted everyone to know about the enhanced right that we CCW's have won in Florida, and to know that those of us outside FL still don't have a FULLY protected right of self-defense. That way maybe we can advocate for this right to be expanded to other states.

Link to a news story about the new law:

Senate OKs 'stand your ground' change - Orlando Sentinel

Total thread drift. Since you mentioned the years you spent on indian reservations as an fbi agent, how does that work with tribal police and tribal court? Do they get the misdemeanors and the feds get the felonies?

__________________
Vegan by proxy.

Yep, because the state has no jurisdiction on most Indian reservations felonies go through federal court and misdemeanors go through tribal court. This applies when one party is an Indian. If two non-members duke it out on the rez, the county gets them.

Investigations are usually done by the FBI, though in some cases BIA Special Agents are the primary. I always worked my cases jointly with a Criminal Investigator from the tribal police. I needed them more than they needed me. Its pretty hard for a white boy to get anything done on the rez without help.

__________________
“What you got, ain’t new.”

Off topic...

...I was co-located with the Tribal Police while training at the former academy in Marana, AZ which was on BIA land.

They were an awesome bunch. I was probably the only white boy to hang with them and play basketball most days in our off hours. (We did not train with them as the classes were "agency only".)

It was odd, (even if understandable), that they weren't permitted to enter or drink at the pub located on the base. (Even though it was their base.) We had several discussions on the subject and I totally got it...but it was still an odd feeling. As I say, a great bunch. I had many enjoyable days with them over those couple of months.

...Back on topic.

__________________
642-1, M&P15 TS

That's preposterous.

__________________
Stay protected my friends.

Here in Alabama, you would probably be chastised by the police if you had the means at hand to dispatch an intruder and failed to do so.

The 2A and "self defense" are two completely separate things that occasionally overlap.
The 2A is all about not allowing the government to regulate when, where and who can own or carry a firearm and says nothing about how or if it's used.
With that out of the way, back to the OP.
In PA we now have "Stand your ground" along with a version of "Castle doctrine". Our SYG law is very similar to FL, the only difference being the definition of the level of threat (bad guy threat) required to use SYG. PA says the aggressor must have a weapon for us to use SYG.
There have been numerous cases in PA where victims have not been charged or arrested for SYG and other fatal uses of self defense.
FL is not alone in states that allow you to defend yourself and not be charged with a crime or at least puts the burden on prosecution.

Just drawing and defending yourself can cost $10,000 plus loss of wages for almost a year.

How much does it cost to not defend yourself? That's the real question.

Your posts are full of simply wrong information. Perhaps you should expand your scope of ‘knowledge’ beyond your insular area of whatever it is you do.

Be safe.

Yep. 1984...Bernard Goetz aka "The Subway Vigilante". I remember it very well. Lots of news media did man-in-the-street interviews with New Yorkers, asking their opinion. The vast majority sided with Goetz and made disdainful comments about the city's mayor and police force (particularly the Transit Police) for failing to protect people who depended on and used mass transit.

We're beginning to see hints of mass transit violence here in my city. Our expanding light rail system is prime territory for assaults and robberies, and quite a few have already taken place.

At least here, we have concealed carry and the opportunity to protect ourselves...unlike other major metropolitan areas.

Bernard Goetz is now seventy-years-old, and living an ordinary life. But he'll always be remembered as someone who stood up for himself and stood up instead of standing down when confronted with street punks.

You still didn't answer why was your client there & was he legally carrying a gun?
We all know eye witness accounts are suspect, especially those of criminals, so I still think something more to this story. 100s of people defend themselves annually & are not convicted of anything, so gotta be more, even in kalif.

__________________
NRA Cert. Inst. IDPA CSO

The issue with the Goetz shooting was the illegally carried & possibly owned handgun. Knowing how diff it is to get a ccw in kalif, I think the op client was carrying illegally. Most prosecutors here will not stand for that, especially if the person illegally carrying is also a criminal or convicted felon.

__________________
NRA Cert. Inst. IDPA CSO

Pretty sure the OP has a misunderstanding of self-defense prosecutions in 49 of the 50 states. In Missouri, you can legally defend yourself with a firearm while drunk, and will not be charged, provided you have complied with applicable firearms possession and carry laws . . .

__________________
Wisdom comes thru fear . . .

Same in Florida, but I'm sure it would be an uphill battle without undeniable evidence to support one's SD claim.

I guess I'm missing something. I thought the the point of the OP was on who has the burden of proving the shooting is self defense, the shooter or the prosecutor. It was not if you had the right to shoot to defend yourself. In FL the burden shifted to the prosecutor from the shooter. Big difference.

A part of that law,if i'm correct on that law, also said that if the shooting was justified then there could be no civil suit filed. That part of the law was overturned by the FL Supreme court.

All you really need to do is create a "reasonable doubt . . . "

__________________
Wisdom comes thru fear . . .

And pray that the jury adheres to the rules...

__________________
642-1, M&P15 TS

In my experience, having interviewed jury members after trial, when a jury member, or even a whole jury, strays from the rules in a criminal case, the result is overwhelmingly for acquittal . . .

__________________
Wisdom comes thru fear . . .

If the glove don't fit...

__________________
642-1, M&P15 TS

OP posting from a different country known as CA.
Plus the case he mentioned says nothing about the circumstances.
Did the shooter Go into a gang infested neighborhood looking for drugs or a fight?
Then gets into a shooting session? Prob incomplete self defense.
And the majority of cases get nailed in the civil suit, not prosecution.

This is what the prosecution must prove in California.

CHAPTER 1. Homicide [187 - 199] ( Chapter 1 enacted 1872. )


187.

(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

I have heard of, does not mean they don't exist, of any cases where the prosecution took second stage at the opening of a trial. They will take the lead with what evidence they have, and if SD is claimed will try to disprove the claim.

The defense only has to make the claim pre trial. If the prosecution sits back, and makes no attempt to prove it wasn't probably will lose.

It would depend on where you live & if you can legally own that firearm. Why I think the case the op put forth has more to it. As I noted, ccw permits are pretty rare in kalif. So if he was carrying outside his home, that is an issue. If he was in possession of a gun illegally, that is an issue. If he was deemed to provoke the shooting, that is an issue. More to it for sure.

__________________
NRA Cert. Inst. IDPA CSO