MORE THOUGHTS ON STAND YOUR GROUND

Since the much-ballyhooed enactment of Florida’s “Stand Your Ground” law (SYG), I have received numerous calls from newspeople who wanted me to voice my opinion on various cases where someone has gotten shot or stabbed. They seem to think that SYG somehow makes dramatic changes to the dynamics of how a case is tried before a jury. The law has, of course, been modified, but as far as how a case is tried to a jury, there should be little difference from the way it was tried before SYG. Here is a somewhat oversimplified explanation:

In the context of a jury trial, SYG simply means that the defendant doesn’t have to back up or try to run away before using deadly force in self-defense. Formerly the defendant had a duty to retreat if he could do so safely. In many armed confrontations retreat is not an option, and the law prior to SYG allowed you to stand your ground in such situations. I don’t know many people who can outrun a bullet.

The  major change that SYG made in Florida’s self-defense law deals with pretrial matters. It gives the defendant the option to try to prove to a judge before trial that he acted in self-defense. Before trial the defendant can file a motion to dismiss the case and get it dismissed if he can prove he acted in self-defense. Unless the defendant has an ironclad self-defense case, he would be foolish to file such a motion. At an SYG hearing the burden of proof is on the defendant to show that he acted self-defense. At a jury trial the burden of proof is on the state to disprove self-defense.  In order to prove that he acted in self-defense, he has to give the state a pretrial preview of his defense strategy, and if he loses, the state is prepared to meet his defense at trial. Additionally, the defendant will more than likely have to take the witness stand and be cross-examined at an SYG hearing. The defendant has to prove that he was in fear of death or great bodily harm, and the only sure way to do that is to take the stand and testify that you were in fear. If you lose the SYG hearing, the state now has the transcript of your testimony at the hearing which they can use against you at trial. 

In the final analysis, SYG is more something for reporters and pundits to emote over than anything else. In many cases where you hear the media bellowing about SYG, it is a non-issue. Take the Zimmerman case for instance. Zimmerman’s defense was that he was flat on his back with Martin sitting on top of him beating him to death. If Zimmerman’s defense was true, under pre-SYG law he had no duty to retreat. Although a lot of ink was spilled over SYG in the Zimmerman case, it was really a non-issue for that case.

Having said all that, I feel compelled to close by saying I think SYG is a bad law because it gives people a license to kill in situations where killing isn’t necessary. I worked a lot of homicides in my 32 years as a prosecutor and defense attorney, and I saw lots of killings which were legally justified. I also saw lots of legally justified killings which could have been avoided if the killer had used better judgment. A justifiable homicide is not always a necessary homicide. SYG will increase the number of justifiable homicides which are not necessary homicides.

My advice to anyone is that if you’re attacked and you can safely retreat, do so. It may damage your self-image as macho guy, but it will save a life (maybe yours). In the words of a martial arts instructor I once knew “If somebody comes after you, walk away. If he follows you, run. If he catches you, kill him.”

BRINGING SOME SANITY TO "STAND YOUR GROUND"

In previous posts I have made it clear that I think "Stand Your Ground" (SYG) is wrong-headed and promotes needless killing. The political climate is such that it is highly unlikely it will be repealed any time soon, but there are some hopeful signs that some of the excesses of SYG will be repaired in this session of the legislature. Here are a couple of Senate bills which speak to the issue:

SB 136 does several things:

 (1) It repeals the current language in the statute which warns the police against making arrests when SYG is invoked by the shooter. If the police believe they have probable cause to make an arrest, they would be free to do so without fear of running afoul of the SYG law. This seems to me to be a sensible improvement.

 (2) It makes it clear that if you start a fight, you cannot stand your ground. This seems to me to be a common-sense amendment to the current law.

(3) It makes it clear that although you have a duty to retreat, you have no privilege to attack. It strictly prohibits chasing people down to shoot them while "standing your ground." If they run away, you have won, no need to kill them. This makes perfect sense to me.

(4) It sets up a commission to collect data on SYG cases and regularly report their findings to the legislature. Again, this seems sensible. If the data shows people are being needlessly killed, then the law can be further amended.

You can read SB 331 at http://www.flsenate.gov/Session/Bill/2013/0136/BillText/Filed/HTML

 Red language in the statute is language that is being removed. Green language is language that is being added.

SB 362 proposes some needed changes to SYG as well.

(1) It makes it clear that the person you shoot has to be doing something aggressive toward you beyond frowning and yelling insults.

(2) It allows innocent bystanders who get shot to sue the shooter. Now they arguably can't because the law gives the shooter immunity from civil suit.

 You can read the bill at http://www.flsenate.gov/Session/Bill/2013/0362/BillText/Filed/HTML

There are similar bills pending before the House, and I heartily endorse them.

HOWEVER there is at least one proposed SYG amendment that is so far out in left field that it is no longer in the ballpark. HB 799 proposes some changes to the law which are obviously unconstitutional.

(1) Whenever a shooter who kills someone claims self defense, he MUST be carried to jail.

(2) He must stay in jail until the Florida Department of Law Enforcement decides that he was justified in shooting.

(3) If the FDLE decides that he acted unlawfully, that finding can be used in evidence against the shooter at the criminal trial.

 You can read this bill at http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0799__.docx&DocumentType=Bill&BillNumber=0799&Session=2013

HB 799 is unconstitutional for the following reasons:

(1) It seems to mandate that someone who uses a firearm in self defense must be arrested regardless of whether the investigating agency feels the arrest is justified. The constitution requires that probable cause exist prior to arresting for a crime. The bill never mentions probable cause, thereby sanctioning the unconstitutional imprisonment of innocent people.

(2) It seems to usurp the power of judges to set bail by mandating that arrestees remain in jail until the Florida Department of Law Enforcement investigates the case and concludes that force was justified. Defendants have a constitutional right to bail, and this bill seeks to deprive them of it. Defendants have a constitutional right to have a neutral and detached magistrate determine whether they should remain incarcerated after arrest. The Florida Department of Law Enforcement, although a fine police agency, is not and cannot be a neutral and detached magistrate.

(3) It creates an unconstitutional exception to the hearsay rule by making the findings of the Department of Law Enforcement admissible at a criminal trial. A criminal investigation is not a judicial proceeding, and the hearsay findings of a nonjudicial agency (which has not allowed the accused to confront and cross examine the witnesses it has relied upon) have no place in evidence before a jury.  

These objections leaped out at me upon a cursory reading of the bill, I am sure a detailed reading will reveal further flaws.

The NRA probably won't kick me out of the association because I wrote this blog, but I wouldn't be surprised if they took me off the mailing list for their legislative updates.

An Open Letter to the Governor's Task Force on Citizen Safety and Protection

 I just posted an email to the Governor's Task Force which is reviewing the "Stand Your Ground" law. If you are interested in commenting on the law, you can post an email to CitizenSafety@eog.myflorida.com. You should do so before June 12, 2012, which is the date of the public hearing.  Here's what I had to say to the Governor's task Force:

It is my understanding that on June 12, 2012 the Governor's Task Force on Citizen Safety and Protection will meet and take public comment. I will not be able to attend, but I do wish to voice my strong opposition to Florida's "Stand Your Ground" law.

To abolish the duty to retreat places the value of human life below the value of self esteem. If someone can safely retreat from a confrontation without using deadly force, then a life is saved at the cost of the retreater being accused of cowardice. A small price to pay for saving a life.

To enact a presumption of reasonable fear places too high an obstacle to bringing people to account for killing. The absence of a duty to retreat coupled with the presumption of reasonable fear results in numerous killings which are both "justifiable" and morally reprehensible.

To put a cloak of both civil and criminal immunity about the shoulders of anyone who acts in "self defense" means that "Stand Your Ground" hearings are being held in misdemeanor cases. In this day of shrinking budgets and limited human resources, the court system cannot afford this additional layer of litigation to be added to an already overburdened criminal justice system.

The Tampa Bay Times has recently published a study of the Stand Your Ground law which is deeply troubling. I hope you familiarize yourselves with this study, which can be found at: http://www.tampabay.com/news/publicsafety/crime/article1233133.ece.

I was a prosecutor and a public defender for 32 years. In that time I handled hundreds of homicides and thousands of felonious assault cases. In my experience, under the law as it existed prior to "Stand Your Ground," people who truly acted in self defense didn't get prosecuted, and people who had a colorable claim of self defense didn't get convicted. There was no need for the law.

I would like to illustrate my point with two cases, one a real life case and the other a hypothetical. The real life case comes from Phoenix, and a full account of it can be found at http://www.usatoday.com/news/nation/story/2012-05-27/stand-your-ground-law-trayvon-martin/55208980/1.  It appears that a young man was walking his dog through a Phoenix Taco Bell parking lot and got into a verbal altercation with the driver of a motor vehicle. The driver shot the young man dead in "self defense." When asked why he didn't just drive off, he said the dog was in the way. Apparently the driver valued the life of the dog over the life of the dog's owner. Apparently the car was also missing a reverse gear. Or was it that the driver knew Arizona is a Stand Your Ground state and believed that he could sit in his car and shoot the man with impunity? If that is what he was thinking, then it looks like he was absolutely correct. It's been over a month since the shooting and he hasn't been arrested. 

Now for the hypothetical case: Let's say that I am a world class sprinter (I'm not) walking down the sidewalk. I see a 5'2" 350 pounder with a limp and a smoker's cough hobbling toward me on his cane. He obviously cannot run fast or far, but he has a club in his free hand and, between wheezing gasps for breath, he is shouting threats to brain me with the club. He's 30 yards away when I first see him. I can obviously save my life and spare his by turning around and running away. What should I do? Florida Statute 776.012 says that I am perfectly within my rights to "stand my ground" and shoot him dead without taking a backward step. And Florida Statute 776.032(2) warns investigating law officers not to arrest me.

I recommend the repeal of the entire "Stand Your Ground" law. If you don't want to re-impose the duty to retreat, then repeal the presumption of reasonable fear and the immunity. At the very least repeal the immunity. The way the law is written now, someone could negligently kill innocent bystanders exercising his "right" to self defense and be immune to civil suit by the slain bystanders' relatives.

Sincerely,

George R. Dekle, Sr.

JUSTIFIABLE HOMICIDE

Years ago I went through a shoot-don't shoot exercise in a primitive form of "virtual reality" simulator. I had a laser gun and stood before a life size movie screen in which scenarios were enacted in front of me. I confronted a bank robbery, a traffic stop gone bad, and a rape in progress. I felt that I would do just fine on the drill. After all, I was a prosecutor and I could recite the law on self defense almost verbatim.

In the bank robbery, the bad guys attacked me and I shot them without shooting any innocent bystanders. In the traffic stop, I was able to talk the irate driver into dropping his weapon and submitting to arrest. Then I found myself in a dark parking garage confronting a rapist who had a knife to his victim's throat. I drew my weapon and called on him to let the victim go. We stood frozen in time for what seemed like an hour, then the victim twisted around and broke free from her attacker.

I waited until the victim got out of the line of fire and then shot the rapist between the eyes. "Good shot!" I thought. Someone else was not impressed. The stage immediately went dark, and the referee informed me that I had just committed premeditated murder. If I had been thinking with the reasoning part of my brain, I would have realized that the rapist was threatening nobody when I shot him.

Even if you intellectually know what to do in a crisis, you may not do it when the adrenalin starts pumping and you begin to think with the primitive part of your brain. You may make a mistake and get yourself or somebody else killed unnecessarily. And the authorities who will be second guessing you may not see things your way. They will be a whole lot more likely to let you go home instead of putting you in jail if your first reaction is flight rather than fight.

Private citizens have no duty to confront the goblins in our society, but police officers do. This means that the police do not have a duty to retreat, they have a duty to stand their ground. The wall at the National Law Enforcement Officers Memorial in Washington, DC, bears the names of many officers who gave their lives protecting the public by fulfilling the duty to stand their ground.

In Florida you, as a private citizen have a right to stand your ground outside your home. You also have a "right" to act irrationally. There is no wall honoring the myriads of people who died exercising their "right" to act irrationally. Most states impose a duty to retreat before using deadly force. I don't think of it as a duty, I think of it as a privilege. When confronted by danger, you can turn around and run--and spare not only your life, but the lives of your attacker and innocent bystanders.

A karate instructor whose name I forget (I'm doing that more often as I grow older) used to tell his pupils, "When threatened by another, walk away. If he follows you, run. If he chases you, run faster. If he catches you, kill him." I think I can word that last sentence a little better: "If he catches you, use sufficient force to neutralize the threat." It's not only the humane thing to do, it sounds better that way when you're testifying in court.

IF YOU CARRY A CONCEALED FIREARM

TOM TESTOSTERONE: I'm going to get a concealed carry permit. Then I won't have to take any crap off of anybody.

SAM SENSIBLE: No. If you're carrying a concealed firearm, you have to take MORE crap off of everyone.

A self-defense firearm is  not meant to be an argument equalizer. It is meant to be a life saver. Self defense is not retaliation, it is the administration of the minimum force necessary to ward off an attack by another. When you carry a concealed firearm, you have on your person a mechanism whereby you can end the life of another human being. Beyond the injury you will cause to that other human being, his friends, and his relatives, you will cause injury to yourself, your friends, and your relatives.

In action-adventure books and movies, it's all over when the bad guy gets killed. In real life, it is just beginning. Having investigated and prosecuted hundreds of homicides, felonious, excusable, justifiable, I have had the opportunity to watch the consequences men suffer after having taken another human being's life. In no particular order, they are: 

(1) The guilt. No matter how justified the killing may be, you will suffer guilt. 

(2) The interrogations. You will be questioned and re-questioned by various authority figures, and it won't be pleasant. You could always stonewall, take the Fifth, and avoid the interrogations, but you pay a heavy price when you do that. In a later blog I will discuss when you should talk and when you should stonewall.

(3) The prosecution(s). The authorities just might not agree with you about your need to kill. If they don't, get ready to spend some time in jail, some more money on a bondsman, and some more money on a lawyer. Get ready for an extended roller coaster ride and you experience the ups and downs of a criminal prosecution which could last for years. And if you get acquitted, you have not won. You have simply minimized your losses. 

(4) The lawsuit(s). Even if you are acquitted, you may very well get sued. Get ready to spend some more money on lawyers, and possibly more money in damages to the estate of the deceased.

(5) The Mark of Cain. Some people will never look at you the same again. They will point you out behind your back. They will whisper about you behind their hands. They will cast disapproving glances at you

I could probably extend the list a little further, but you get the point. If you have a chip on your shoulder, don't put a gun in your pocket. It's a recipe for disaster. If you wind up shooting someone, that chip on your shoulder, those harsh words you spoke, those confrontational actions you took will all be interpreted as mens rea (criminal intent) sufficient to support a charge of unlawful homicide.