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Posted: 1/27/2006 10:13:58 AM EDT
What say you - do you agree with the current statute, the "milder version" or the "gang-bangers repreive"???

Story can be found in today's East Valley Tribune.




Right to use deadly force widens under 2 bills

By Howard Fischer, Capitol Media Services
January 27, 2006
State legislators are moving to let Arizonans shoot to kill when someone invades their home or car, without fear of prosecution or civil suit.

The House Judiciary Committee adopted a proposal Thursday that says a person is justified in using deadly physical force when someone forcibly and unlawfully enters a home or vehicle and the person believes he or she or someone else is in imminent danger of death or serious injury.

Rep. Russell Pearce, RMesa, said HB2392 makes it absolutely clear in Arizona law that there is no duty to retreat if the offender has invaded the home or car.

But that’s the milder version of the measure. A more comprehensive proposal crafted by Senate Majority Leader Tim Bee, R-Tucson, would spell out in state law that when a person claims he or she killed someone in selfdefense, no matter where that occurs, it is up to prosecutors to prove otherwise.

Now the burden falls on the person who did the shooting to prove that it was justified.

That provision has alarmed prosecutors. Rick Unklesbay, chief criminal deputy Pima County attorney, said it could result in people getting away with murder.

He said that virtually every gang shooting involves the survivor saying that the other person made some sort of threatening gesture or gang sign that left the person in fear for his or her life. Unklesbay said the nature of these crimes would make it difficult — if not impossible — to overcome that person’s claim of self-defense.

Ed Cook, lobbyist for the Arizona Prosecuting Attorney’s Advisory Council said these kind of situations generally have only two witnesses, “and one of them is dead.’’

Bee dismissed those concerns as alarmist, saying 45 other states have the same requirement on prosecutors to overcome a claim of selfdefense. He also noted that’s the way Arizona law read until lawmakers changed it a decade ago.

Unklesbay countered that proves his point. He said that, under the old law, “people were walking away from charges when they shouldn’t have because we couldn’t prove it wasn’t self-defense.’’

State law already says people may use deadly physical force if they believe it is immediately necessary to protect self or others against unlawful use of physical or deadly force. Pearce said those existing provisions are insufficient to protect innocent victims who opt to stay and fight instead of retreat.

The no-retreat concept bothered Rep. Ted Downing, D-Tucson. “Fleeing is a lot better than fighting,’’ he said.

Pearce said that may be true, but not in every circumstance. He said that choice should be left to the home or vehicle owner — and that person should not have to worry that a decision made to confront an invader will land them in legal trouble.

Downing said the law should spell out that people have an obligation to withdraw whenever possible.

Home and vehicle invasion

Current law: Deadly physical force can be used when a person reasonably believes it is necessary to prevent certain crimes, including murder, kidnapping, arson, rape, robbery or aggravated assault. There is no duty to retreat.

Proposed additions to law:
Individuals may use deadly physical force if they reasonably believe the other person had or was in the process of illegally and forcibly entering a home or vehicle. The action is presumed reasonable by virtue of the other person having entered illegally and forcibly. There is no duty to retreat.

Self-defense

Current law: A person charged with homicide must prove by a preponderance of the evidence that he or she was justified in using deadly physical force in self-defense.

Proposed law: A prosecutor has the burden of disproving the claim by a defendant charged with homicide that he or she was acting in self-defense.

Link Posted: 1/27/2006 1:27:32 PM EDT

Originally Posted By Ocorvo:
What say you - do you agree with the current statute, the "milder version" or the "gang-bangers repreive"???

Story can be found in today's East Valley Tribune.




Right to use deadly force widens under 2 bills

By Howard Fischer, Capitol Media Services
January 27, 2006
State legislators are moving to let Arizonans shoot to kill when someone invades their home or car, without fear of prosecution or civil suit.

The House Judiciary Committee adopted a proposal Thursday that says a person is justified in using deadly physical force when someone forcibly and unlawfully enters a home or vehicle and the person believes he or she or someone else is in imminent danger of death or serious injury.

Rep. Russell Pearce, RMesa, said HB2392 makes it absolutely clear in Arizona law that there is no duty to retreat if the offender has invaded the home or car.

But that’s the milder version of the measure. A more comprehensive proposal crafted by Senate Majority Leader Tim Bee, R-Tucson, would spell out in state law that when a person claims he or she killed someone in selfdefense, no matter where that occurs, it is up to prosecutors to prove otherwise.

Now the burden falls on the person who did the shooting to prove that it was justified.

That provision has alarmed prosecutors. Rick Unklesbay, chief criminal deputy Pima County attorney, said it could result in people getting away with murder.

He said that virtually every gang shooting involves the survivor saying that the other person made some sort of threatening gesture or gang sign that left the person in fear for his or her life. Unklesbay said the nature of these crimes would make it difficult — if not impossible — to overcome that person’s claim of self-defense.

Ed Cook, lobbyist for the Arizona Prosecuting Attorney’s Advisory Council said these kind of situations generally have only two witnesses, “and one of them is dead.’’

Bee dismissed those concerns as alarmist, saying 45 other states have the same requirement on prosecutors to overcome a claim of selfdefense. He also noted that’s the way Arizona law read until lawmakers changed it a decade ago.

Unklesbay countered that proves his point. He said that, under the old law, “people were walking away from charges when they shouldn’t have because we couldn’t prove it wasn’t self-defense.’’

State law already says people may use deadly physical force if they believe it is immediately necessary to protect self or others against unlawful use of physical or deadly force. Pearce said those existing provisions are insufficient to protect innocent victims who opt to stay and fight instead of retreat.

The no-retreat concept bothered Rep. Ted Downing, D-Tucson. “Fleeing is a lot better than fighting,’’ he said.
Pearce said that may be true, but not in every circumstance. He said that choice should be left to the home or vehicle owner — and that person should not have to worry that a decision made to confront an invader will land them in legal trouble.

Downing said the law should spell out that people have an obligation to withdraw whenever possible.

Home and vehicle invasion

Current law: Deadly physical force can be used when a person reasonably believes it is necessary to prevent certain crimes, including murder, kidnapping, arson, rape, robbery or aggravated assault. There is no duty to retreat.

Proposed additions to law:
Individuals may use deadly physical force if they reasonably believe the other person had or was in the process of illegally and forcibly entering a home or vehicle. The action is presumed reasonable by virtue of the other person having entered illegally and forcibly. There is no duty to retreat.

Self-defense

Current law: A person charged with homicide must prove by a preponderance of the evidence that he or she was justified in using deadly physical force in self-defense.

Proposed law: A prosecutor has the burden of disproving the claim by a defendant charged with homicide that he or she was acting in self-defense.




Must hurt less to be shot in the back while fleeing
Link Posted: 1/27/2006 7:34:04 PM EDT
Let's say you take a nice little 115gr 9mm round flying down at say... 1200fps. If you were running toward it at perhaps, 10fps, the impact would be almost 1210fps. Now, compare that with running AWAY from the projectile, you'd be dealing with a very managable velocity of 1190fps. 1190, anyone can survive that, but you'd have to be 2 fries short of a happy meal to wanna tango with 1210.

h.gif
Link Posted: 1/27/2006 7:57:27 PM EDT
[Last Edit: 1/27/2006 8:02:41 PM EDT by Z06Kicks]
When are we adopting Texas' statute that I can shoot someone for breaking into my car?

ETA; The milder version is fine, but the other one is much better. You would think the "gang-banger"/reasonable version would be implied in a society that believes in "innocence before proven guilty". Now if only our society were really like that....
I have no reason to run like a little bitch when I am attacked on or in my property. That's what libs are for.
Link Posted: 1/28/2006 4:35:32 AM EDT

A more comprehensive proposal crafted by Senate Majority Leader Tim Bee, R-Tucson, would spell out in state law that when a person claims he or she killed someone in selfdefense, no matter where that occurs, it is up to prosecutors to prove otherwise.




This is the way it should be. A person shouldn't have to prove their innocence.
Link Posted: 1/28/2006 11:06:33 AM EDT
This isn't about being able to shoot someone trying to steal your car.

This bill helps, in a way, to correct the egregious wrong done about 10 years ago when the state legislature changed the law so that the DEFENDENT is required to PROVE INNOCENCE in cases where self-defense is claimed.

Prior to that, the prosecution had to prove guilt. Like it fucking well should be.

However, claims that "gang bangers are getting a walk" prompted the changes.

In our system of jurisprudence, it is supposed to be innocent until proven guilty. The current law negates that if you say "he tried to kill me."

Look at the Fisher case out of Flagstaff. Man attacked by a guy with a history of mental illness after hiker fires warning shot to scare off the 3-4 dogs the man had, off-leash, that were (allegedly) running toward him in a threatening way.

Dog-owner goes (allegedly) ballistic that this hiker (a 50-yr old retired school teacher) scared his dogs, so (allegedly) attacks him with a screw-driver. Hiker fires warning shots as guy is running toward him, but guy keeps coming, cause man to shoot, and kill, his attacker.

Sheriff investigators conclude it was a legit shoot. Coconino County (I believe) Attorney says "Nah...I don't like that" and charges the hiker. So, instead of the CA having to prove it was a bad shoot, the hiker is (still) having to prove it was a good shoot.

That is fucked up.

But that's what the law change did.

This bill helps overcome that.

If prosecutors can't convict gang bangers who shoot people, then maybe we need better prosecutors.
Link Posted: 1/28/2006 12:24:42 PM EDT
Link Posted: 1/28/2006 4:53:14 PM EDT
Despite some people's interpretation of this newspaper article, the State always has the burden of proving the Defendant guilty of the charge beyond a reasonable doubt. Under our Constitution, that burden never shifts.

Our justification (self-defense) statutes in Arizona are adequate as they are.
Link Posted: 1/28/2006 9:18:45 PM EDT
[Last Edit: 1/28/2006 9:19:44 PM EDT by wise_jake]

Originally Posted By napalm:

A more comprehensive proposal crafted by Senate Majority Leader Tim Bee, R-Tucson, would spell out in state law that when a person claims he or she killed someone in self-defense, no matter where that occurs, it is up to prosecutors to prove otherwise.

This is the way it should be. A person shouldn't have to prove their innocence.


This sounds a bit like the new presumption of "traveling" that recently became law here.

Contrary to popular belief, Texas hasn't been "The Wild West" for quite some time. We've been languishing under a bunch of oppressive, Reconstruction-era firearms laws since, well, Reconstruction.

Carrying a handgun "on or about one's person" was one of those laws. Illegal as hell. However, TX law carved out certain scenarios where a mere citizen might be forgiven their transgression (defenses to prosecution). But it was one of those deals where you *might* beat the rap, but not the ride. So, back in 1997, the lege changed "traveling" (essentially, driving in your car/truck) from a DTP to an area where the law didn't apply (nonapplicability). It didn't help much. The burden of proof was *essentially* (tip of hat to AZAtty) still on the defendant.

State Rep Terry Keel has a good article on it: Terry Keel Clarifies Right to Carry Handgun in Vehicle While Traveling.
Link Posted: 1/29/2006 12:21:34 AM EDT

Originally Posted By SinistralRifleman:

It is incredibly wrong that you have to prove your innocence in self-defense shootings. It would be nice to have a law passed as well that if the state charges you in a self-defense shooting, and you are found innocent or the charges dropped, the state must reimburse you for your legal fees.



If such a law were adopted, it would likely be hard for it not to end up eventually be spread to any legal scenario.
Then who would decide how much you could spend on your legal fees for reimbursment? The state. To me it seems that would end up being almost exactly the same as using a public defender is today.
Link Posted: 1/29/2006 1:58:25 AM EDT

Originally Posted By Z06Kicks:

Originally Posted By SinistralRifleman:
It is incredibly wrong that you have to prove your innocence in self-defense shootings. It would be nice to have a law passed as well that if the state charges you in a self-defense shooting, and you are found innocent or the charges dropped, the state must reimburse you for your legal fees.


If such a law were adopted, it would likely be hard for it not to end up eventually be spread to any legal scenario.
Then who would decide how much you could spend on your legal fees for reimbursment? The state. To me it seems that would end up being almost exactly the same as using a public defender is today.


Not that I'm one of the "we need more laws" guys, but if such a thing were to ever come to pass, they could just cap the amount of reimbursement at whatever a public defender would "charge" (for want of a better word).
Link Posted: 1/29/2006 7:44:20 AM EDT

Originally Posted By Z06Kicks:
If such a law were adopted, it would likely be hard for it not to end up eventually be spread to any legal scenario.
Then who would decide how much you could spend on your legal fees for reimbursment? The state. To me it seems that would end up being almost exactly the same as using a public defender is today.



I don't agree. if the state is having to pay buttloads of money because of bad prosecutions, then these bad prosecutions will stop. I should be able to hire anyone I wish as my defense attorney. If the state's case is so good, it shouldn't matter.

If it isn't, perhaps they should reconsider prosecuting me.

The main issue is that the government, at any level, has unlimited resources with which to attack/prosecute you. Given this, they should be responsible for my costs should they decide to go after me (or anyone) and failing. This would help eliminate the charge "stacking" they do in the hopes that they can get the person to plea down rather than face a bazillion years in prison. This practice increases their clearance/conviction rate while doing nothing, IMO, to promote real justice.
Link Posted: 1/29/2006 1:03:49 PM EDT

Originally Posted By TimW:

I don't agree. if the state is having to pay buttloads of money because of bad prosecutions, then these bad prosecutions will stop. I should be able to hire anyone I wish as my defense attorney. If the state's case is so good, it shouldn't matter.

If it isn't, perhaps they should reconsider prosecuting me.

The main issue is that the government, at any level, has unlimited resources with which to attack/prosecute you. Given this, they should be responsible for my costs should they decide to go after me (or anyone) and failing. This would help eliminate the charge "stacking" they do in the hopes that they can get the person to plea down rather than face a bazillion years in prison. This practice increases their clearance/conviction rate while doing nothing, IMO, to promote real justice.



I agree with your point, it's always hard to say how reality will actually play out. The point that stuck in my mind when considering the topic was the OJ trial......
Link Posted: 2/3/2006 11:22:41 AM EDT

Originally Posted By AZAtty480:
Despite some people's interpretation of this newspaper article, the State always has the burden of proving the Defendant guilty of the charge beyond a reasonable doubt. Under our Constitution, that burden never shifts.

Our justification (self-defense) statutes in Arizona are adequate as they are.



YOU ARE SO WRONG!!!!

I say your experience is not as complete or well rounded as you like to believe.
Link Posted: 2/3/2006 11:59:57 AM EDT
If you look up SB1145 and SCR1001 in the state legislature, the intention of defining the means and reasons of self defense usage are to stop prosecutors from pressing charges. Additionally, they are intended to stop the victim who used self defense to be persecuted in civil court.

Presumption of innocence when using self defense is only on the defendants side, the prosecution will use the presumption of guilt. May not be right, but that is how they play the game. This is why these new laws are being proposed.
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