Stand Your Ground | The Zelman Partisans

Understanding use of force law is pretty important if you’re going to carry a gun, whether lawfully or unlawfully. And we’ve identified another attorney you really don’t to defend you in court because defense attorneys should know that, too.

KC parade shooting suspects may pursue ‘stand your ground’ defense
The man accused of firing the first shots at the Kansas City Chiefs Super Bowl rally told authorities he felt threatened, while a second man said he pulled the trigger because someone was shooting at him, according to court documents.
[…]
Trial attorney Daniel Ross described the stand your ground law as a “formidable defense” that he and many other Kansas City defense attorneys anticipate will be used in Mays’ and Miller’s cases. He said the law puts the onus on the prosecution to disprove claims that a shooting is lawful self-defense.

Ross needs to, you know, actually read 563.031, Missouri’s “Stand Your Ground” law. “Felt threatened” is not sufficient.

1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

Reasonably believes the use of force is necessary to defend against an imminent threat. The problem with that appears to be this:

When interviewed by law enforcement in the hospital, Mays said he drew his gun first and began firing first. When asked why he advanced on the group of people to begin with, Mays said, “Stupid, man. Just pulled a gun out and started shooting. I shouldn’t have done that. Just being stupid.” He claimed that someone in the group had told him “I’m going to get you,” which he took as meaning “I’m going to kill you.”

So Mays approached them first, drew first (if his opponent hadn’t drawn, that seems to leech some of the “imminent” from the situation), and shot first. Let’s look at the first exception to the 563.031 defense.

(1) The actor was the initial aggressor

Mays’ own words seem to indicate that he was the initial aggressor. Mean words don’t necessarily count. For a SYG defense, Mays would have to explain why he reasonably believed that “I’m going to get you,” was both a credible death threat and imminent. And why those words from an unknown “someone” justified targeting Miller, or was it the whole group. We really don’t know that part yet.

And that would only justify the use of force against the second shooter, Miller, or possibly the two unnamed minors arrested, if they were shooting at Mays. It would not be a defense for the innocent parade attendees who were not involved to the alleged dispute who were also shot (with one killed).

Miller might have a SYG defense for shooting at Mays; but again that doesn’t apply to the bystanders shot.

Even when the use of deadly force is appropriate, you have a legal obligation not to kill innocent bystanders; that’s at least manslaughter. Merely wounding the innocent is assault.

As yet, we’re only seeing a couple of second degree murder charges. I think those are just placeholders while the forensics folks sort which of the 23 people were each shot by whom. I expect Mays, at least will be facing multiple attempted murder charges (for the group he seemed to be firing on). At best, whoever killed the DJ will see a manslaughter charge, and everyone who wounded the others will see assault charges.

There were at least four guns located, and quite a few rounds fired, so sorting that out is going to take a while.

The Florida Supreme Court has ruled that “Stand Your Ground” (SYG) self-defense protections extend to police officers, as well as civilians. I’m going to make two points about this.

1. DUH!

Police officers are persons, too. Of course they’re entitled to the same rights as any other person. That’s a no-brainer.

2. This police shooting was not a SYG situation.

SYG — despite common mischaracterizations in the anti-rights media — is not a “shoot first any time you panic” defense. All it does is two things.

The first: If you are in a situation in which you would otherwise be allowed to use defensive force, you don’t have to try to outrun the bad guy — or his speeding bullets — before defending yourself.

The second: By invoking SYG, the defender no longer has to prove his innocence. It becomes up to the prosecution to prove his guilt. For those who slept through history and government classes, the latter assumption of innocence unless proven guilty is how every other “criminal” case works. It’s embedded in the American legal system, and hearkens all the way back to English common law which is the original basis of American law.

So why do I say this wasn’t SYG?

Deputy Peter Peraza claimed he was defending himself against Jermaine McBean. McBean had a rifle across his shoulders, which Peraza claimed McBean lowered from his shoulders and aimed at him, and McBean ignored orders to drop it. He specifically claimed that there was no reason for McBean to not hear the instructions.

The facts and witnesses say otherwise.

The “rifle” was an unloaded air gun. 911 callers merely said the person was carrying it, not brandishing. At least one witness to the shooting stated that the air gun remained across McBean’s shoulders and that he never pointed it at the officer.

The claim that McBean should have been able to hear instructions — and therefore he willfully ignored them — came into question. Police noted that McBean was not wearing the earbuds which were tucked into his pocket.

And then crime scene photos came out. Immediately after the shooting, pictures show the earbuds still in the deceased’s ears. His family said he was in the habit of listening to music as he walked. But somehow, the dead man managed to remove his earbuds and place them in his pocket, conveniently supporting the officer’s version of events.

Other officers also gave conflicting and contradictory accounts of the incident. The original judge who dismissed charges simply declared the police conflicting statements were due to a difference of perspective, but the civilian just wasn’t credible.

Apparently neither were the photographs showing that someone tampered with evidence to support the police shooting. If you have to lie about why you shot, and tamper with evidence to support the lie, the shooting was probably not good.

Stand Your Ground applies to valid self defense. This wasn’t that.

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