Tuesday, May 8, 2012

A deadly combination -- guns and 'stand your ground'

A deadly combination
By Mark NeJame

Mark NeJame is a CNN legal analyst and contributor and has practiced law, mainly as a criminal defense attorney, for more than 30 years. He is the founder and senior partner of NeJame, LaFay, Jancha, Ahmed, Barker and Joshi, P.A., in Orlando, Florida.

The famous, or infamous, Florida "Stand your ground" law:
Florida Statute 776.013 (3) states:
"A person who is not engaged in unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony."

Mr. NeJame makes some interesting and, I think, valid points regarding the Florida statute; there's a lot more in his article at CNN.com, but here's a quick look at his view of the problem with the law as it's written.

"This law applies a confusing blend of subjective and objective standards. Stand your ground is appropriate in many circumstances, but the lack of clarity in the statute needs to be addressed and re-evaluated, particularly when firearms are so readily accessible in public places.

The way the statute is written, an individual who observes a fistfight could conceivably shoot and kill the dominator in the fight if they reasonably believed that person was going to cause "great bodily harm" to the other.

Even if the two combatants knew that the fight was nothing more than a "good ol' boy" disagreement, the way the statute is written could allow a gun to be used if the observer reasonably and actually believed that great bodily harm could occur.

Moreover, merging the statute with overly relaxed gun laws could open the door for the guilty to walk away without consequence. Consider another gun-toting observer of the hypothetical fist fight, who is an enemy of one of the combatants."

I think it's worth considering the simple fact that in most states and U.S. jurisdictions a sworn peace officer does not have that amount of personal discretion over the use of deadly force, nor in my opinion should they. Do you want your police officers empowered legally to walk up to an altercation in progress and shoot one of the fighters without regard to the existence of a real deadly threat? Even more important, do you want everyone who can pass the legal requirements and monetary requirements for possessing a firearm to have that power by legal privilege. Our soldiers in Afghanistan don't have that degree of discretion over the use of deadly force.

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