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Posted: 4/7/2006 11:54:59 AM EDT
[#1]
Sorry, but this is BS. A shooter doesn't have to "prove" their innocence. Current ARS statutes already prevent civil liabilites for a justified use of deadly physical force. Current ARS statues also allow for the use of deadly physical force in situations where there is the threat of serious physical injury or death from another unlawful use of deadly physical force. All that is needed is to show what is "reasonable".
From ARS statutes: 13-405. Justification; use of deadly physical force A person is justified in threatening or using deadly physical force against another: 1. If such person would be justified in threatening or using physical force against the other under section 13-404, and 2. When and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force. 13-404. Justification; self-defense A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. B. The threat or use of physical force against another is not justified: 1. In response to verbal provocation alone; or 2. To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or 3. If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and (b) The other nevertheless continues or attempts to use unlawful physical force against the person. 13-411. Justification; use of force in crime prevention A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of arson of an occupied structure under section 13-1704, burglary in the second or first degree under section 13-1507 or 13-1508, kidnapping under section 13-1304, manslaughter under section 13-1103, second or first degree murder under section 13-1104 or 13-1105, sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, child molestation under section 13-1410, armed robbery under section 13-1904, or aggravated assault under section 13-1204, subsection A, paragraphs 1 and 2. B. There is no duty to retreat before threatening or using deadly physical force justified by subsection A of this section. C. A person is presumed to be acting reasonably for the purposes of this section if he is acting to prevent the commission of any of the offenses listed in subsection A of this section. 13-413. No civil liability for justified conduct No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter. This bill doesn't "protect" anyone. Whomever wrote the email is neither stating the facts, or representing the bill correctly. They are following the Brady camps alarmist methodology. |
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Posted: 4/7/2006 2:20:05 PM EDT
[#2]
Nobody is debating the content of ARS. That is not the issue. The fact is that under current statutory and case law, you, the defendant, are required to prove your claim of justification in court by a preponderance of the evidence. No one is denying this, not even the prosecutor's lobbyists that I butt heads with every day down at the capitol. Why are you? ETA: Before someone asks ... 13-205. Affirmative defenses; burden of proof A. Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence, including any justification defense under chapter 4 of this title. B. This section does not affect the presumption contained in section 13-411, subsection C and section 13-503. AZ case law requires that before you can claim a justification defense, you must first admit to the underlying criminal conduct. Perhaps you ought to re-read "Legal Issues Relating to Use of Deadly Force" by Mike Anthony? AZ DPS bases their recommendations on it. Just FYI, Mike is advising us on the nuances of this bill and the language therein. As one of AZ's lead "gun lobbyists", I have some small inkling of what I'm talking about here. I've been lobbying this bill since it was dropped in the hopper, I've testified in favor of it in front of two committees, and I've sold it to more legislators than I care to count. I've researched the statutory and case law behind it for more hours than I'd care to track as well. No one is being alarmist here. Someone, however, is sticking their head in the sand. Care to guess who that would be? NRA, who we are working closely with on this one, is getting an alert ready as well. We, being smaller, just move a bit quicker. Perhaps when theirs comes out you will believe it? |
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Posted: 4/7/2006 3:50:13 PM EDT
[#3]
In order for someone to go to trial for use of deadly physical force several things must happen. First, the investigating agency (police) must feel there is engough evidence to refer it to a charging agency for criminal charges. The charging agency (DA, AG) must feel that they have enough evidence to win the case before they either file a criminal complaint or puruse a grand jury indictment. I've seen grand juries refuse to indict persons where the prosecutor was ceratin of guilt. Only after a criminal charge has been brought is this even an issue as to "affirmative" defenses or not. In any regard, it is MUCH easier to prove justification, than it is for the prosecutor to prove that the actions were unreasonable. The prosector has the burden of proof, not the defendant.
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Posted: 4/7/2006 6:35:24 PM EDT
[#4]
Tell that to Harold Fish. He is currently under indictment in Coconino county for a shooting that the investigating officers felt was a clear case of self-defense. The CA, under intense pressure in a very liberal community to produce a prosecution, disagreed. Many thousand of dollars later, he has still not been able to present his case, as that is not allowed until trial. The multitude of evidence showing that his attacker was mentally unstable is inadmissable. And all the other evidence in his favor is controlled by the state, who are, as one could probably guess, not exactly cooperative. Want to tell me again how easy it is to prove justification? The prosecutor's only burden is to prove the criminal charge, which the defendant must admit to before he can claim self-defense. Real tough job, that. As noted previously, AZ law requires that the defendant prove the justification defense. That is what we're trying to change. No amount of waffling on your part is going to alter that fact. There is an old saying in criminal law circles ... "A good prosecutor can get a grand jury to indict a ham sandwich." Any lawyer has heard that saying, and it exists for a reason. I'm curious, which prosecuting attorney or law enforcement agency do you work for? I ask only because it seems so obvious ... |
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Posted: 4/7/2006 7:02:45 PM EDT
[#5]
Will this law keep people from being indicted, even if they aren't faced with a gung-ho prosecutor? Will this law keep honest citizens from spending every dollar defending themselves? No. Your argument above is moot. Mr. Fish would still be in the exact same position in that he would still be facing criminal charges brought by a county attorney who felt that since the case went public he must look like he is doing something. The case was in jeopardy from the start, to include proceedural misconduct by the prosecution during the grand jury phase, and possibly includes perjury. If Mr. Fish is ever convicted, I would be greatly suprised. The end result of this law is going to be one thing. Less plea bargans from the gang bangers, thugs, and dregs of society who are the ones facing charges FAR more often than someone wrongly charged. Even worse, it could result in hung juries or acquittals for these scum. |
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Posted: 4/7/2006 7:19:04 PM EDT
[#6]
Well said Joe_Blacke. The Arizona statutes regarding justification are just fine as they are. The standard of proof in a criminal case is "beyond a reasonable doubt." That burden never shifts in a criminal case. The State always has to prove each element "beyond a reasonable doubt." That is an extremely high standard. There are many, many cases in which the suspect is guilty; however, because there is not a reasonable likelihood of conviction due to this high burden, the prosecuting agency must decline to file charges. Many criminals escape being brought to justice because of this. Our laws here in Arizona regarding firearms and self-defense (justification) are very favorable toward people who properly act in self-defense. The above proposed legislation favors criminals and criminal defense attorneys. The author of this post is trying to alarm people into thinking if they use self-defense to protect themselves in their own home, or in other legitimate situations, they will somehow be prosecuted. That's false. Arizona law is already very pro self-defense. No police agency in Arizona would submit charges to a prosecuting agency recommending criminal charges for someone who was protecting themselves in their own home or on their own property. Prosecuting agencies are busy enough prosecuting real criminals, they are not interested in messing with people who legitimately defend themselves in their own homes or on their own property. The Arizona statutes afford great protections for such persons in such situations. One cannot claim self-defense unless they elicit some evidence of that. Self-defense is an affirmative defense. To claim justification, one must present some evidence to make that claim. "Preponderance of the evidence" is a nothing standard. It means more likely than not. 50.0001 % vs. 49.9999% is proof by a preponderance of the evidence. Violent people who assault others with weapons and/or cause serious physical injury or death to their victims, love to claim self-defense. Defendants who are caught for such offenses almost always assert bullshit self-defense claims hoping stupid jurors will fall for it. This legislation would make it much easier for them to do this and get away with it. Defendant (violent criminal) assaults Victim AR15.com member/CCW holder who's minding his own business, causing serious physical injury or death. When the police inventory the victim's property, they find his firearm lawfully carried pursuant to a CCW permit. The firearm is listed in the police report as being found on the victim's person. Defendant never even knew that Victim had a gun at the time of the crime. But, he knows it now, after the State must disclose the police reports. Defendant and defense attorney now decide to go with self-defense at trial, saying that Victim threatened him with the gun (that he never knew about) or was reaching for the gun, which is using deadly force against Defendant. Weak new self-defense statute now makes it even easier for Defendant to walk in this situation. Whenever one claims self-defense, they have to admit using force or deadly force as part of their defense. That is the nature of self-defense. It has nothing to do with current Arizona law. That would still be the same under this proposed legislation. So, that is a non-issue. Our statutes with regard to the justification of self-defense are fine as written. We don't need any further changes that would make it easier for violent offenders to commit violent acts. |
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Posted: 4/8/2006 10:15:30 AM EDT
[#7]
Sometimes one must get one's nose out of the books.
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Posted: 4/9/2006 11:46:32 AM EDT
[#8]
While I certainly appreciate your lawyer's trick of putting words in my mouth to make your case </sarcasm>, that is exactly NOT what I'm saying. The vast majority of people defending themselves legitimately are going to run into problems outside their homes, ala Mr. Fish, and current law encourages both bad prosecutions and plea bargains, so that those bad prosecutions never make the stats. Convenient for you guys, huh? Not to mention, who in the hell left it up to the cops and prosecutors to decide that it was OK to limit the rights of the citizens of AZ to defend themsleves inside of their own homes, but nowehere else? Those balls of yours have grown mighty large, and are in danger of overflowing your trousers. Best to rein them in before they outgrow their home ...
Ah yes, "Trust us!". I've been hearing that quite a bit from you guys down there. Again, talk to Mr. Fish, as I don't think he's buying it. Talk to the young Hispanic gentleman down in Pima county that was about to be run through the meat grinder some months ago for defending himself with a knife in a parking garage. After all, Ms. LaWall, prosecutor and AGS member must have reasoned, no young Hispanic male defends himself against other young Hispanic males with a knife. He was all set to go up the river. Until, that is, a surveillance tape was discovered that bore out his story. Lucky for him, eh? Of course, if the state had to prove that he did not act in self-defense, they would have had to actually seek out evidence like that. But given the current standard, he had to locate it at his own expense, even though the state is the existing collector and guardian of evidence under any circumstances. But sure, that's fair. If you say so ...
And you measure that ... how, exactly? If that is not a subjective standard, I have never seen one. Perhaps you should re-read In Re Winship, the US Supreme Court's opinion on why the "reasonable doubt" standard exists, and why not using it is a violation of our right to due process? Oh, I know, you're going to say that Martin v Ohio says our standard is Constitutional, but that's BS, and you know it. Its a narrowly drawn exception that applies to Ohio, which does not require the defendant to confess top the underlying criminal conduct, and especially given the recent Biggs decision from the 9th Circuit, I wouldn't want to rely on it if I were you. But hey, whatever floats your boat. Not to mention that SB1145 would remove "self-defense" from the category of "affirmative defenses", which is exactly what you guys are afraid of. But you all can keep ducking that point, I don't mind. I keep pointing out the fact that you all are ducking it to legislators, and they notice.
Now we venture into the realm of the nonsensical. But I do have to say, I really appreciate it, as this argument has been the single easiest to destroy with every legislator I talk to. Are you guys serious with this? Do you honestly want to maintain that a criminal is going to do this? ... Option 1) Criminal trial for murder: Defendant is charged with murder. He pleads innocent. The state must prove the charge "beyond a reasonable doubt". The defendant is not responsible for producing any evidence. He may obtain an attorney at public expense if he so desires. His attorney must only refute evidence presented by the prosecution to the point that he creates a "reasonable doubt" in the minds of ONE juror, which is sufficient to prevent conviction. If this "reasonable doubt" can be created, defendant walks. Option 2) Same trial, self-defense justification under SB1145: Defendant is charged with murder. He claims justification of self-defense. Under proposed change, he must still admit to the underlying criminal conduct (e.g. "I shot that person"), and must still present evidence that he was justified (e.g. "Person was charging me, as shown by the position of the body, entry wounds, etc."), just as under current laws. However, instead of having to prove his own case to the jury, the state would now have to prove that he was not justified by the same standard as above, i.e. "beyond a reasonable doubt", just as in 48 other states, and just as it was here in AZ from Territorial Days until 1987. yet they are all surviving, and so did we through nearly one hundred years. So you are asking people to believe that a criminal is going to choose Option 2, where they have to confess to a crime and provide evidence in their own case, over Option 1, where they just sit back and let the state's case live or die on its own merits? And you all wonder why you're losing the battle of words at the legislature? You're joking, right?
Yeah, uh huh, that's why this is happening all over the 48 states where this is law now, and has been for two hundred years, right? How come you all can't produce any evidence of this? Not like we haven't been asking for it for months now ...
You are exactly right bout having to admit to it, and it has to do with case law, not statutory law, as you should well know. What one must do in court has nothing to do with the nature of anything, so let's not be disingenuous, shall we? Its interesting that the only people arguing against this bill are prosecutors and cops (who won't even admit to being same), and not even all of them are doing so. Maricopa County Attorney Andy Thomas is very much in favor of this bill, and several local LEOs and CA staff have told me privately that they want it too, but can't speak out for fear of reprisal. The prosecutor's lobbyists are choking themselves down there with mendacities, but that's OK too. As one legislator told me the other day, "We have long memories for things like that." Should make passage of next year's agenda that much easier. And for that I thank you all ... ;) |
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Posted: 4/9/2006 11:56:12 AM EDT
[#9]
Short answer ... yes, it will keep peoplel form being charged falsely. When the state must prove "No, you didn't", at its own expense, and actually do a little work for a living, instead of putting the defendant in the position of spedning his own money and time proving his own innoncence, it tends to dissuade said state from bringing nonsensical prosecutions. Thisd stands to reason, and is the whole purpose of the "reasonable doubt" standard to begin with. As noted to your lawyer friend, read In Re Winship. Its very educational. Now, if you'll excuse me, I can have these arguments at the legislature where they might actually accomplish something. The long and the short of it is, you can side with a few hundred prosecutors and cops, and keep the law the way it is, and hope like hell you never have to use that gun you carry. Or you can side with damn near everybody else, including the legal systems of 48 other states, and restore "innoncent until proven guilty" to AZ self-defense law. It really is just that simple. And oh, just a side note to the cops out there, this current law can be used against you too. There is no exception for LEOs. Now sure, you probably figure no prosecutor would ever do that. But when you have antis like Barbara LaWall in office, never say never. You have been warned. |
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Posted: 4/9/2006 12:55:48 PM EDT
[#10]
+1. |
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Posted: 4/9/2006 6:42:02 PM EDT
[#11]
Joe, if a person in AZ claims "Self Defense" to justify his actions, then in court he has the burden of proof. This is a fact. |
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Posted: 4/10/2006 10:08:03 PM EDT
[#12]
Wizard
You should have asked me about the reaction you'd get if you posted this here. I would have advised that you got what you have..but perhpas some lurkers have been educated that the cops and CA's love the current status. |
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Posted: 4/11/2006 6:05:17 AM EDT
[#13]
I don't see the harm in this proposed amendment to current ARS.
I hope it gets a pass and signature. Jay |
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Posted: 4/24/2006 4:58:20 PM EDT
[#14]
just read a NRA legislative alert. Gov Doubtfire signed it!!We got Castle Doctrine AND presumption!!
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Posted: 4/25/2006 10:15:02 AM EDT
[#15]
Does this apply in Cashun?
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Posted: 4/25/2006 4:30:17 PM EDT
[#16]
And you can thank the Arizona Citizens Defense League for a LOT of hard work to get all these passed.
Basically, the 4 BOD/Officers of the 84-member organization spent countless hours down at the legislature lobbying for these bills. Two of these officers live in Tucson and drove up here, many times, to work these bills. They need more members, so go join up: www.azcdl.org All politics is local. While the NRA won't live or die based on whether a couple of Arizona residents join them or not, AZCDL can use ALL the local members it can muster. They need help recruiting new members at the gun shows (about 4-hour stints, you get into the show free, I believe, but not parking). These guys busted their balls and missed a lot of family time to help right some of the wrongs done in past sessions. they worked in conjuntion with the NRA (whose lobbyist couldn't spend a lot of time in Arizona or on AZ bills...but who helped open some doors) to get this done. Now, they need your support. I've joined, and have donated products from Practical Tactical for future membership raffles/drives. Will you join? |
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Posted: 4/25/2006 7:01:39 PM EDT
[#17]
You silly. Of course not. Nothing ever applies to Cashion. Jay |
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