Sunday, September 10, 2006

When Can You Stand Your Ground?

Hello. In this episode we’ll discuss several questions regarding criminal law and thanks to listeners who have posed some of the questions. We’ll talk again with Criminal Law expert Paul Bergman, a Professor of Law at the UCLA School of Law, and the co-author of The Criminal Law Handbook: Know Your Rights Survive the System from Nolo.

We’ll start with a question about ‘Stand Your Ground’ laws. Every state has always had some form of ‘Stand Your Ground’ law. These laws are based on what’s known as the “Castle doctrine,” that is, “a man’s home is his castle,” and that if an intruder broke into a home, the resident of that home could use deadly force against the intruder provided the citizen had a reasonable suspicion that the intruder would inflict serious physical injury. As a general principle in most states, outside the home you could only use deadly force if you were threatened with physical injury and were unable to retreat from the criminal. This was known as the “Duty to Retreat.”.

In October 2005, Florida enacted new a type of Stand Your Ground law. Now, Florida residents can use deadly force in their homes even if they don’t fear physical injury. They can fire on anyone who unlawfully, forcibly enters their home. And the definition of ‘home’ now includes vehicles, so a Florida resident can use deadly force against anyone who forcibly unlawfully intrudes in their car or on their boat.

The Florida law also extended ‘Stand Your Ground’ rights beyond the home and car. A Florida resident outside their home can now use deadly force if they have a reasonable fear that someone is about to use deadly force against them. In other words, in Florida, outside your home, there is no longer a duty to retreat when faced with deadly harm.

When we say that resident can use this law, we mean that the resident can invoke it as a defense from prosecution. And if law officers disagree, the person can be charged with a crime and will have to prove their ‘Stand Your Ground’ defense in court. For example, the owner of a Florida towing company invoked the law to justify shooting a man whose car was impounded. Police disagreed and charged him with murder. At trial, the owner will have to prove that he feared being hit by the driver, who drove off without paying the impoundment fee.

In addition, to shielding Florida citizens from criminal charges, the law also shields citizens from civil lawsuits for money damages brought by the person who was shot.

South Dakota and Indiana have also passed Stand Your Ground laws similar to the Florida law and fifteen other states are reportedly considering similar Stand Your Ground laws.

Opponents argue that these laws – which they refer to as “Shoot First” laws or “Make My Day” laws -- encourage vigilantism, and that they encourage a shooting range mentality, allowing you to shoot people who cut through your backyard if you feel threatened.

Proponents of the law argue that it reflects today’s crime realities, that criminals are intent on causing physical harm and that the days of the gentleman thief are over.

Legal experts like Anthony Sebok at Findlaw, argue that the laws send a “very confusing message” because they often are not really clear when you can use lethal force without being prosecuted. For example, in Kentucky’s first case under that state’s new home intruder/Stand Your Ground law, the judge hearing the case, said that the law was “confusing, vague, poorly written.” One of the drafters of Kentucky’s penal code called it “the worst legislation I have ever seen.”

Stand Your Ground laws will stand their ground legally unless successfully challenged on grounds that they violate the constitution. And that’s one of the questions that we’re posing today. We asked criminal law expert Paul Bergman whether he felt that Stand Your Ground laws would be held to be unconstitutional.

PAUL BERGMAN: It’s unlikely that I think that they’re going to be held to be unconstitutional. There might be some claim that somebody’s life was taken away without due process of law, but it would have been taken away by an individual, not by the state, in most cases. So it’s not going to amount a constitutional problem. The real issue is whether or not it’s good policy, does it make sense, how far will people push this and how will prosecutors and juries react. Are people really using deadly force in situations that the law wasn‘t meant to apply to. I would say we’re going to have to see how the interpretation of the rule plays out before we make any judgments. If there are problems with the rules, they won’t amount to violations of the Constitution, I don’t think.

NOLO: We’ve had a few other questions about criminal law and one of them is about what to do when questioned by a police officer. Should you respond to all questions in order to show your willingness to cooperate? Should you stay quiet until you know whether this has anything to do with a criminal charge against you? Does refusing to answer questions make you more suspicious in the eyes of the police officer? We asked Paul Bergman what’s a recommend course of action for someone who’s stopped and questioned by police?

PAUL BERGMAN: That’s a pretty individual judgment. I’d say that if the person is at all uncomfortable, they should first, ask whether they’re under arrest, or whether they are free to leave. And if they are free to leave, they should say something like “Look, I’m willing to talk to you”, if you are, “but this really isn’t a good time.” And make an appointment for another time. Even if you don’t have a lawyer present, you will at least have an opportunity to think about it, be in a more comfortable setting where you’ll be more relaxed and able to provide accurate information.

If the officer says you’re not free to leave, more or less, you ARE under arrest. Then I think people out to not talk until they have access to a lawyer.

NOLO: What about your home? If your home is your castle, do you have to answer questions posed by a police officer who comes to the door? Should you let the officer in your house?

PAUL BERGMAN: Well, people should understand that they have a right not to allow a police officer in their house unless the officer has a warrant. You should always ask to see the warrant first. If the officer says, “I don’t have one, but I’d like to come in. If you’re not guilty you have nothing to be afraid about”, you DO have the right to say no and if you do allow the police officer in, then it’s voluntary and anything the police officer sees may be properly seized and used as evidence. All of these are individual judgments, but as a general rule, people at least ought to know that they have a right to say no to a police officer coming in the house unless that officer has a search or arrest warrant.

NOLO: Another question that we have for Paul Bergman is a basic one -- but it’s still an interesting one. What exactly does it mean to be ‘under arrest’? We asked Paul Bergman for an explanation.

PAUL BERGMAN: Well, what it means to be under arrest is that you can’t go wherever you’d like to go. It’s kind of a physical control, where you can go is determined by the police officer. Your freedom is restricted, that’s basically what it means to be under arrest.

NOLO: Can you be charged with a crime without being arrested?

PAUL BERGMAN: Well, you CAN leave. . You can be given a citation---people who get traffic tickets, for example, are given a citation, and then they leave. The police may also be unable to arrest you, they may have a probable cause to believe that you committed a crime, and you may be charged with a crime, but before you’re arrested. Usually the charge doesn’t come until the arrest takes place, but it’s theoretically possible for a charge to be made assuming they have probable cause without having the person in custody.

NOLO: A listener asked the question ‘What is circumstantial evidence and why do attorneys for defendants always criticize evidence when it is circumstantial? Isn’t it as good as other evidence? We asked Paul Bergman.

PAUL BERGMAN: Circumstantial evidence is often derided. We hear that all the time in movies…”that’s just a bunch of circumstantial evidence.” But in fact, most evidence offered at trial IS circumstantial and legally, there’s no problem with it

Its counterpart is direct evidence, and the only difference is, in direct evidence, you do not need an inference to connect the evidence to a crime. With circumstantial evidence, you do need to infer. That’s kind of a common thing we do all the time. If you see somebody smiling, you might infer that they’re happy. Well, that’s the same as we do in court. But circumstantial evidence can be quite powerful. There’s this legal saying that there is nobody who wouldn’t accept dog tracks in the snow as evidence that a dog had passed by, against the sworn affidavits of ten people that it had not. So circumstantial evidence, in that case, the dog tracks, can be quite powerful.

Actually, DNA test results and most scientific evidence, is simply a form of circumstantial evidence. The fact that the blood, let’s say, appears to have the same DNA characteristics as the blood left at a crime scene, is simply circumstantial evidence that the person whose blood was at the crime scene is the person whose blood was taken for the purpose of the DNA test. So scientific evidence is really just another form of circumstantial evidence. Circumstantial evidence has pretty much gotten a bad rap.

NOLO: The Fourth Amendment of the U.S. Constitution guarantees that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …” The Fourth Amendment is basically about privacy – that is, which details of your life shall be revealed to the public and the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement.

However, the Fourth Amendment does not protect against searches initiated by nongovernmental people, such as employers, landlords, and private security personnel, unless the search is made at the request of a law enforcement authority.

As a general rule, however, the police may override your privacy concerns and conduct a search of your home, or car, or office, or personal or business documents, bank records, even your trash if:

• the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or

• The police search is proper without a warrant because of a variety of circumstances.

In 1961, the U.S. Supreme Court established the exclusionary rule. That states that evidence seized in violation of the Fourth Amendment cannot be used as evidence against defendants in a criminal prosecution. Many commentators still criticize this rule on the grounds that it unfairly “lets the criminal go free because the constable has erred.”

We asked Paul Bergman one final question. Knowing what we know now, would the drafters of the Constitution have written the Fourth Amendment in the same way today?

PAUL BERGMAN: Well, from a civil liberties point of view I’d like to believe that it would be written the same way. I think there’s still a consensus in the country that it’s a good idea for police not to have a right to arrest people on a whim, a hunch, that it’s a good idea for police officers not to simply enter somebody’s house or apartment, or property, on a whim or a hunch. That right, at the base of the Fourth Amendment, states a value that everybody believes in. That’s why I believe the Fourth Amendment WOULD be enacted. Now there are times when it may hamper the police, but the courts have been quite creative in creating exceptions to the warrant requirement, or for example, police can pursue a suspect into a house when they’re in hot pursuit. They’ve created opportunities for police officers to get warrants at all times of the day, there’s

NOLO: Thanks to Paul Bergman for his assistance. Much of the information for this episode came from Paul’s book, The Criminal Law Handbook.





Kentucky Case

Wiki Self Defense

Wiki Stand Your Ground

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