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The recent controversy over the Drejka shooting in Clearwater Florida, involves a shooter invoking 'stand your ground'. As I understand the matter, LEOs (law enforcement officers) are forced to make a decision of whether or not to arrest and charge a shooter based on available evidence \ testimony. The Sheriff decided not to arrest the shooter.

I understand that burden of proof has been shifted to the state to prove that unreasonable force was exercised: is this true only in a court of law where the shooter has been charged, or is it also true in the course of LEO's evaluation of events to decide whether to arrest and charge the shooter? Put another way:

Do LEOs need probable cause comprising a conclusion that unreasonable force was exercised to make an arrest / charge once 'stand your ground' is invoked?

I realize that this is a highly charged topic and no inference should be drawn regarding my position regarding the matter.

  • Could you define LEO? – hszmv Aug 14 '18 at 16:55
  • Law Enforcement Officer – gatorback Aug 14 '18 at 16:57
  • In criminal matters, the burden of proof has always been on the state. Why do you say it has "shifted"? – phoog Aug 15 '18 at 8:57
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So first things first, whether or not Stand Your Ground is in play, the burden of proof is always on the State to prove any crime did happen and any defense does not.

Another thing that I think you confused in your question is it seems apparent that you think Stand Your Ground is Self Defense. This is not true.

In the United States, self-defense is always a legal right for a victim of a potential crime, regardless of if your state has Stand Your Ground or Duty to Flee laws. Self-Defense typically can include justifiable homicide as you are not privy to the intent of the bad actor.

Under Duty To Flee laws, you cannot claim self defense if you could reasonably get away from a criminal action safely... if given the choice between fight or flight, you must flee the scene.

Stand Your Ground contradicts this and says that if you are in a public place and a criminal is trying to make you a victim, you have every right to defend yourself without any duty to remove yourself from the situation first... basically at this point, you can make either choice and not worry about losing justifiable Homicide.

Making a criminal arrest of a Stand Your Ground claimant at the seen is not necessarily required. While the claim may be disputed, in the case of firearms, using an illegally owned weapon is typically ground for arrest regardless... (probably not in cases where the illegal gun was introduced to the scene by the dead criminal... and the victim picked it up in a scuffle... though this requires some measure of sorting out). Legal Fire Arms are very well documented and the fire arm in question will be confiscated as evidence. If it is found that it was not a justifiable homicide, the person in question is probably at the address tied to the gun.

Now, again, Stand Your Ground only applies to steps needed for Self-Defense, it is not self-defense itself. Self-Defense authorizes only the amount of force needed to safely resolve the situation, up to and including leathal force, but it does not require you to kill the perpetrator in every instance it is invoked. For example, if merely pointing a gun at a perpetrator is enough to stop the crime, you do not get to pull the trigger. That flips it back into homicide. Similarly, if I pull my gun and the guy advances anyway, I may fire and if the guy is on the ground and out cold (thus, no longer a threat), I don't get to walk up, and put a second bullet between his eyes, execution style. This too is murder.

As a bit of anecdotal evidence, when I was living in Florida, I worked for a man who just recently purchased a firearm for self-defense (in the home only) and he said that when he was filling out paperwork with the police, the cop looking over his paperwork said, "Now remember, if you have to use that, shoot to kill. It's less paperwork for us."

Now, I wasn't there when to cop said it, I don't know what his tone was. I took it as the cop being a little funny, but maybe a little inappropriate. I cannot speak to how much that is indicitive of FL Police culture. It was hearsay on my part... I just thouht it was funny and... demonstrates the attitude towards self-defense. Essentially, by the time cops arrive at the scene, they HARD PART is over... they merely have to collect evidence and take witness statements. If the shooter is cooperating and his story checks out, it will look very bad if they detain a crime victim who defended himself. It's just bad PR. Ultimately, his job is to collect all evidence, not determine if the case should go to trial. As I mentioned, the gun was legally owned in the specific case, and more than likely the CCTV tape is collected, but not yet viewed. Hindsight may be 20/20 but at the time, I do not think it's fair to say that the cop knew this might not be such a clear cut case.

In such cases, the cop may not make an arrest because there is not any crime that he can charge the man with and he is cooperating. And keep in mind that in the heat of the moment for the shooter, he may not even realize he did something that might break his self-defense case.

Cops can detain a person claiming Stand Your Ground for just about any legitimate reason, even suspicion of homicide that the detainee will claim is self-defense.

  • +1: Also, note: The shooter has since been arrested on charges of manslaughter(abcnews.go.com/US/…) – sharur Aug 14 '18 at 17:40
  • @sharur: Correct me if I'm wrong, this is the one where the shooter was talking to the guy's wife in the parking lot and the guy came out and pushed him and he pulled the gun? – hszmv Aug 14 '18 at 17:49
  • it appears so, yes. (I had not heard of the shooting until this question was posted). – sharur Aug 14 '18 at 18:11
  • @sharur: I thought so, but didn't look into it. Again, I'm not pushing opinions, but if you look at the people who support Stand Your Ground laws and gun rights, most of them were very vocal in that the shooter is not justified. I don't know why this took so long to reassess, but I try to look to the better nature of all and my only guess is that the police and prosecutors wanted to make sure the evidence was there for a charge before the made another call on the matter. A dot the I's and cross the Ts check will always take more time. – hszmv Aug 14 '18 at 18:19
  • The amount of effort is appreciated, however, I do not think that the question has been addressed. In the interest of clarity, I have bolded the question. Thanks – gatorback Aug 14 '18 at 18:53
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IANAL

To make an arrest, a Law Enforcement Officer (hereafter LEO) needs to have probable cause to detain a person. Probable cause includes, but is not limited to the subject being involved in or a suspect of a crime or perceived crime as per Title 47 Statute 901.15. Even after Stand Your Ground (hereafter SYG) is invoked, a LEO has the ability to arrest and detain a person for whatever local/state statute allows (usually just a matter of hours), as SYG does not meaningfully impact a LEO's ability to arrest (though it may make the LEO less likely to arrest in the first place). When arrested, if the person is not charged (the second point of your question), they have the right to go after a certain amount of time (again, dependent on local jurisdiction).

Charging a person with a crime is not affected by SYG. I can claim SYG as a defense, and still be charged with homicide. SYG comes into effect in the courtroom if I'm charged, as a reason for my actions being within the law.

To answer your question in short, LEO's can arrest a person when they feel the person is in some way tied to a (possible) crime. A person can also be charged with a crime based on the word of a LEO alone. The prosecutor must still prove that the crime was committed by the person being charged in a court of law, following due process (barring a confession).

As a followup, here is Title 46 Statute 776.012 which details justifiable use of force for self defence, and includes the SYG clauses. Note the lack of any decision for arrest/charge given. Also note that SYG only protects someone who

is not engaged in a criminal activity and is in a place where he or she has a right to be

Which includes harassment as detailed in Title 47 Statute 901.15 (linked above).

  • Ok, I'm done editing, I promise! – GOATNine Aug 14 '18 at 19:38

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