Another Self-Defense Case In Florida

This one didn’t involve a gun, but a knife. This is another case where I think the application of the 2005 law, in this case by a judge granting the defendant immunity,  is questionable. There’s a few things here worth covering:

The law also bestowed immunity from prosecution and civil suits on people who are deemed to have acted in self-defense. The Florida Supreme Court has said that the question of whether the immunity applies in each case should be decided by a judge, not a jury.

What Was Common Law Self-Defense?

Lots of people are bandying “common law” around in regards to self-defense, especially suggesting that Florida’s laws are a departure from common law. Anyone who is suggesting this is ignorant of what the common law on self-defense really was. First, a brief history of what common law is. Common law is essentially judge made law, or customary law, that is built up by precedent over time. For many years, much of the laws of England were done this way. The Romans brought us the idea of civil law, where everything is written down by statute. Self-defense traditionally was a common law justification for certain crimes such as murder, manslaughter, and assault. These justifications were, for a long time, not codified in most states. Codification didn’t generally begin until fairly recently, and some states, such as Virginia, still use common law self-defense. So what was common law self-defense? To understand that, we go back to the authority on the common law, which is William Blackstone, who wrote Commentaries on the Laws of England. But to summarize:

• Under common law, it was legal to use deadly force against a person who was committing a felony. Not only was it legal, it was considered a civic duty to do so.
• It was legal to use deadly force against anyone breaking into a house at night. It was not considered acceptable to do this during the day, unless robbery was a motive.
• Duty to retreat only applied, under common law, to someone who was defending himself against an assault in an “affray” or “brawl,” and with the exception that there was no duty to retreat “in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law.”

As the common law evolved in the United States, Americans never had a particularly liking for the duty to retreat, and it worked its way out of the common law in many states, including New York, who included no such requirement from common law when they codified their self-defense statutes. Many states, when they codified their self-defense statutes, ignored common law and essentially created this duty even when presented with someone committing a felony. Pennsylvania, for instance, does not allow for deadly force to prevent commission of a felony. That was dropped during codification. But the idea that the common law created a duty to retreat in all circumstances is just plain false. Many of the “stand your ground” or “castle doctrine” laws more closely match common law practices than do statutes of states that require retreat even when faced with a felonious attack.

One can see that even with the recent Zimmerman case, that whether a duty to retreat would apply under common law would hinge on whether “certain and immediate suffering would be the consequence of waiting for the assistance of the law,” rather than some absolute duty, as some have made it out to be. Also worth noting that in Blackstone’s time, law enforcement was considered a duty of every citizen, and people were more civically minded back then. With the advent of professional policing in the 19th century, individual citizens have become more removed from looking out for the safety and well-being of their own communities.

George Zimmerman, a lone, self-appointed neighborhood watch captain, would not have been in the tradition of Blackstone’s time. But neither would a neighborhood full of people who hear someone screaming for help, and don’t bother to act until a shot is fired.

An Interesting Part of Florida Law

Our opponents have been busy all weekend tweeting to anyone who does or doesn’t want to listen to them that George Zimmerman is out on the street because of the dangerous NRA shoot first law, which legalizes murder, you know. Aside from the hyperbole, the section of Florida Law at issue here, which was part of the Castle Doctrine law passed not terribly long ago is as follows:

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

I am going to argue that this passage is relatively meaningless. Standard procedures would be to take the shooter into custody for questioning, which was done in this case. Zimmerman was then released because no probable caused existed to hold him. The standard for an arrest or to be charged with a crime has always been probable cause. So what does this change really? It seems to me all this does is codify what’s already generally law.

Legality of Drones

SayUncle asks and interesting question, in response to this story about an animal rights drone being brought down by shotgun fire, namely whether you own the airspace. Under common law, the answer was yes; you were regarded as owning, “from the depths to the heavens”. But the advent of air travel changed common law. Now the answer is yes and no, as to whether you own the airspace over your house. There’s a Supreme Court case regarding this, U.S. v. Causby (1946), where a chicken rancher sued the federal government over fighter planes flying low over his property. The ruling held the old common law could not survive in the modern world, but that landowners have the rights to the space over their houses that are essential for your enjoyment of the land.

“if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run” . . . Thus, a landowner “owns at least as much of the space above the ground as he can occupy or use in connection with the land,” and invasions of that airspace “are in the same category as invasions of the surface.”

As far as the FAA is concerned, objects like RC planes must be operated within line of sight, and not fly over 500 feet. This is federal, so state case law might be different. But the FAA only recently allowed military UAVs to operate in US airspace. There is no corresponding FAA regs for civilian UAVs.

So it would seem that if you have a UAV buzzing around your property operated by animal rights groups, you’re perfectly entitled to shoot it down, exercising your rights as a property holder to end the trespass of an object that’s interfering with your enjoyment of the land.

On Attorney’s Fees in Second Amendment Cases

Countertop explains, in a comment, how attorneys fees are generally awarded, which suggests that the 1.1 million award to Alan Gura is actually pretty good, considering. But it was important to go after as much as possible. Not only to reward good work, but also, and perhaps more importantly, to discourage other municipalities from resisting our cause when we file lawsuits. I am hoping that the 1.1 million award here is sufficient to accomplish that, even though I would have been tickled pink by a higher amount. The best outcome upon a municipality or state receiving a Second Amendment suit is to fold immediately. We’ve seen that happen already, and I hope the award here will further those results.

Does a Concealed Gun = Reasonable Suspicion?

Orin Kerr, who is the Volokh Conspiracy’s resident 4th Amendment Guru, talks about a recent decision in federal court in New Mexico. I was always under the impression that whether and officer has RAS for a stop if he spots a concealed handgun depended on the wording of the statute. If carrying concealed was generally unlawful, except if you had a permit, then an officer would be permitted to stop to ensure the person fell under the exception. Professor Kerr says otherwise:

The court’s analysis seems wrong to me. The officers saw a guy with a gun. A crime would be afoot only if the man lacked a proper permit. But the officers had no idea if the man had a permit to carry the gun at the time they made the stop: They didn’t inquire, and instead initiated the stop only upon seeing the gun. Obviously, if the officers had asked Rodriguez if he had a license before the stop, and he had said no, the officers would have had both reasonable suspicion and even probable cause to make the arrest. But I think they have to ask first and get evidence of the crime before the stop, not stop first and then get evidence to justify it.

This decision also is in contrast to a Pennsylvania Supreme Court decision which suggests that the presence of a firearm does not amount to RAS for an officer to conduct a stop. I’m glad Professor Kerr is making the case for this decision being wrong. I don’t believe the exercise of a constitutional right should be subject to stops from police. They should need to have RAS you’re committing a crime, and the mere presence of a firearm, concealed or otherwise, should not amount to that.

Bad Journalism on Private Sales

If I were running a high school newspaper, I would have sent this article back for rewriting. But this is what passes for journalism today, apparently, at least for the Cleveland Plain Dealer. This is perhaps one of the most juvenile editorials I’ve seen on the topic of private sales of guns, regarding a proposed bill in Ohio that would ban private sales, and direct everything through dealers for a ten dollar fee, fixed by the state.

This big problem routing everything through dealers is that it’s just a matter of who’s ox gets gored. If you let them charge market prices, you’re going to be paying anywhere from 30 dollars to 50 dollars for each firearm transferred. If you limit the fee to 10 dollars, you’re screwing the dealer out of his right to make a livlihood.

It’s amazing how many of these folks, who consider this whole background check thing an essential public service, don’t want the public to pay for it. As a matter of law, can anyone think of another instance where the government can force someone to provide a service for a fee set by the government? The only cases I can think of are being conscripted into military service, and being called for jury duty, both of which have deep roots in common law. Are there any other examples?

Collecting Your Own Rainwater

Clayton notes that it’s illegal in Utah, and I believe in many western states, to collect rainwater. People are weird about water in the West, because there’s not generally enough to go around, which I supposed is where the western phrase “Whiskey is for drinkin’, and water is for fightin’.” originated from. I suppose these were the rules, odd though they may be, that stopped people from killing each other over water rights.

The Truth About Fair Use

The blogosphere loves itself a good controversy, and it looks like we have yet another one generated by the folks at Truth About Guns, courtesy of Weer’d Beard, who also links to a thread over at Reddit. Once again, this involves accusations of appropriations of intellectual property, refuted with a claim of fair use.

There have been accusations of a similar type made against Truth About Guns that I do indeed think fall quite probably into fair use. Their use if Weerd’s banner, for instance, is arguably fair. I use the word arguably, because there’s a lot of room for that when it comes to the legal implications of this topic. It’s not nearly as cut as dry as TTAG’s responses would have you believe. Fair use is kind of like Justice Potter’s infamous statement about pornography, in that he knows it when he sees it. While their are some pretty sound guidelines as to fair use, what is and isn’t fair use is not so cut and dry that one can just declare it, and that is the end of it.

You will get no argument from me that the Internet implicates necessary adjustments to how our society thinks about intellectual property, and copyright laws in particular. But the law is what it is. We’ve all used bits of material derived from other works, at one time or another, in the course of blogging. This is not what I think is imprudent behavior on the part of TTAG. What is imprudent, among other things, is blowing off a copyright holder when he claims your use is infringing, with claims that it’s clearly fair. It’s not clearly fair, because the law doesn’t work that way.

The prudent reaction is “What can I do to make this better?” All the author may want is clear attribution, or some other minor concession, and you both get to walk away happy. Even if the demand is to cease using the work, it’s a one post loss. What’s it to you? A blogger should be willing to work with a copyright holder who claims his use of their material isn’t fair. The copyright holder has the upper hand in this matter legally. So why make an issue of it?

More on Searches

A commenter brought up an interesting point in regards to the search of Cemetery’s vehicle, from a lawyer who says the 4th Amendment is alive and well, and it’s still possible to win 4th Amendment cases:

Your real concern is that all other things being equal, police are going to be believed in court over citizens. Well, yea, and that’s always been true, and likely always will be. The advice to have your own camera rolling is well taken.

I think that is partly my concern. If I think about the issue a bit more, what I really think I have an issue with are the dogs. Don’t get me wrong, I have no issue with the use of dogs in police work, or even the use of dogs for their noses in police work. I do have an issue with dogs amounting to probable cause for a search. Let me explain.

It is conceivable that sometime soon, technology will allow us to replace the dog’s nose. In this instance, police will be able to circle your vehicle with a device that takes in air samples, and looks for signatures of contraband. The interesting thing about this technology is, I think it actually would enhance civil liberties. I can’t cross examine a dog to find out what was going through its mind when it “alerted.” I can demand the logs from the device, demand to see its service records, and examine the science behind its function.

Even if it ends up a matter of judicial notice that the devices are reliable, and a reading can amount to probable cause, the officer at least would have to induce a reading somehow if he wanted to act merely on his suspicion, rather than just read the tea leaves of a dog’s behavior.

What’s interesting about such a sniffing device is how it would be affected under Kyllo v. United States. Unless such a device was generally available, it’s hard for me to see how it would be distinguished from the Kyllo case, except that involved a residence, and this would only presumably involve a vehicle or personal effects such as luggage. Perhaps the court would rule you have a lesser expectation of privacy. But as it is, a dog sniff doesn’t even constitute a search for 4th Amendment purposes, but if I were to use a device the mimics a dog’s nose, it presumably would. This goes to show the court’s logic in this matter is not entirely consistent.