Cases where deadly force has been used - and self-defense is claimed - are drawing publicity and intense public reaction.
Florida is the epicenter of controversy. The Tampa Bay Times is analyzing cases where shooters explicitly claimed an SYG defense. Its conclusion:
Seven years since it was passed, Florida's "stand your ground" law is being invoked with unexpected frequency, in ways no one imagined, to free killers and violent attackers whose self-defense claims seem questionable at best.
Cases with similar facts show surprising — sometimes shocking — differences in outcomes. If you claim "stand your ground" as the reason you shot someone, what happens to you can depend less on the merits of the case than on who you are, whom you kill and where your case is decided.
• Those who invoke "stand your ground" to avoid prosecution have been extremely successful. Nearly 70 percent have gone free.
• Defendants claiming "stand your ground" are more likely to prevail if the victim is black. Seventy-three percent of those who killed a black person faced no penalty compared to 59 percent of those who killed a white.
• The number of cases is increasing, largely because defense attorneys are using "stand your ground" in ways state legislators never envisioned. ...
Part 1 of this
Study Series on the Use of Deadly Force covered early common law principles (i.e. law from court decisions as opposed to being decreed in the legislature's statutes) of self-defense.
Part 2 covered the evolution of self-defense and described Stand Your Ground statutes, now the law in more than two dozen states. This Part 3 discusses cases with variations on the themes.
Once again: These diaries resort to broad generalizations. State laws vary significantly. Given cases are dependent on the facts of each situation, not to mention the prosecutor, judge and jury. That said ...
... let's talk about real life-and-death cases and trials beneath that funny little orange whatever.
Disclaimers. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
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Do the results in real cases follow the traditional principles of self-defense, or the new ones influenced by SYG ... or what?
- Threat: Said various ways, it must be present, immediate, imminent, unavoidable, depending on state law.
- Response: Proportionate to the threat. So, even though deadly force is to be used only where deadly force is threatened, the key issue is - What threat is perceived?
- Retreat: This aspect has changed the most over time. Many jurisdictions relaxed this for one's home. In SYG states and some others, there is no longer any duty to retreat from any place one has a right to be.
- No provocation, no pursuit ... or no protection for self-defense.
- Objective standards: What would a reasonable person have done under the circumstances seems to be morphing into whether the shooter acted reasonably by his or her own lights.
- Burden: On the shooter to raise self-defense and allege facts that he or she acted in self-defense. But then, the burden shifts.
Sidebar. Two kinds of "burdens" are operating here. (1) It is up to the shooter to assert self-defense and with a burden to come forth with some support for it. When an accused does so, in almost all states today (unlike the strict early common law), (2) the burden of proof is on the state to undercut or disprove the defense as part of its burden to prove guilt beyond a reasonable doubt. For more on this, see a detailed article (and don't miss the comments!) in the Volokh conspiracy.
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Self-defense is heavily fact-dependent territory. If the prosecutor makes a determination in the investigation stage that self-defense is warranted, the facts may never be tested at trial. That is what accounted for George Zimmerman not being charged soon after the shooting but was charged upon later reconsideration, and it is a prime objection to the way Florida's and Georgia's SYG law is being interpreted.
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Here are six recent cases made prominent by media coverage.
Trayvon Martin/George Zimmerman. George Zimmerman admitted that after he called 911, he tracked Trayvon Martin. It is likely that Trayvon's reasonable perception was that he was being followed, pursued by an unknown person for an unknown reason. After all, Martin knew that he had a right to be where he was and there was no evidence George announced that he was acting as a neighborhood watchman or carrying a weapon. Trayvon couldn't testify, so we were left with George's description (in a statement the prosecutor introduced!). Zimmerman insisted that Trayvon became an aggressor ... in a scenario where two people each had confrontational rights to stand their ground and protect themselves and each apparently believed he was fighting for his life.
Should greater judgment be expected of someone who has a loaded weapon at his or her hand? To exercise restraint? To avoid or try to forestall confrontation?
Jordan Davis/Michael Dunn. Michael Dunn fired ten or more shots into a car of teenagers listening to music. Dunn was found guilty of three counts of attempted second-degree murder by shooting at the car while it was parked at a Jacksonville gas station and then as the four youths tried to drive away. The jury apparently found no reasonable claim for self-defense under those facts. (Dunn was also charged and found guilty of one count of firing into the car.)
But the charge of first degree murder of Jordan Davis - three shots that Dunn fired hit Davis - ended with a hung jury and a mistrial. (A retrial is reported likely.) Dunn said he saw a gun pointed at him from inside the car, but no gun was found at or near the scene. By his own account, Dunn left a place of safety to encounter the youths. He was a guy with a gun complaining about teenagers' loud music ... and somehow standing his ground, then hitting and running from the scene of the murder.
Ronald Westbrook/Joe Hendrix. In Chickamauga (north Georgia), 71 year-old Ronald Westbrook, who had Alzheimer's, wandered off into the early morning hours. He wound up at the front door of a nearby house with a porch light and knocked repeatedly. Getting no response, he walked around the side of the house. Joe Hendrix and a girlfriend were occupants of the house. Hearing that the police (who his girlfriend called) might be five minutes away, Joe went outside into the back yard. He said he called to Westbrook, who began walking toward him, silhouetted and with "a cylinder" in his hand (which turned out to be a flashlight). When Westbrook did not stop walking toward him, Hendrix shot him three or four times with a .40-caliber handgun, killing him.
His girlfriend reportedly warned Hendrix that the stranger appeared to be a confused old man who she perceived not to be any threat. Prosecutors declined to charge Hendrix, saying they could do so only if they could prove Hendrix was not acting in self-defense when he pulled the trigger.
Wait ... what?
With police acknowledging they were on the way, Joe Hendrix disregarded the assessment of his companion (who saw Westbrook!), went to get his gun and leaving the house, a place of safety, went outside to confront the person who was in the yard and put himself at risk. Nothing in the facts supports a credible threat of bodily harm or violence to Hendrix or to his girlfriend. Nonetheless, where the unarmed victim is dead, there are no other witnesses to the shooting and the shooter asserts facts that led him to use deadly force, the result does seem more likely to be no criminal charge whenever the police and prosecutor believe that in spite of other factors, they have to disprove self-defense in the investigation phases of a shooting.
This case appears to me, to be based entirely in the eye of the beholder.
Chad Oulson/Curtis Reeves. Seventy-one year-old retired Tampa Bay police captain Curtis Reeves fired one bullet from his .380 semi-automatic pistol into the chest of fellow moviegoer Chad Oulson in the next row. Reeves had complained of Oulson texting his children's babysitter. He first told police Oulson got out of his seat and punched him in the face. According to Reeves' attorneys, Oulson threw "an unknown dark object" they asserted might have been a cell phone. Footage from a surveillance camera picked up Reeves' actions but little of Oulson other than thrown objects that could have been the popcorn that eyewitnesses described.
Here, the likely key is Reeves' perception, in the dark, of what was thrown at him that he claims warranted his almost shoot-from-the-hip response.
Reeves pleaded not guilty to counts of second-degree murder (which, unlike murder in the first-degree, does not involve premeditation) and aggravated battery.
Jazzmen Bryant/Youseff Abdel-Gawad. This appears to be an attempted robbery in a home in Huntington Station, Long Island. As reported (there was a surveillance tape), five intruders entered the back yard of a house at night which was occupied by Abdel-Gawad, his brothers and parents. One allegedly shot a pellet gun at the glass of the door. The brothers moved outside to chase the intruders. Youseff pursued one who ran into a neighbor's yard, fired two blasts from a shotgun and hit Bryant in the back and killed him. Abdel-Gawad has been charged with manslaughter and criminally negligent homicide.
Here, the decision to prosecute may be based on the pursuit issue. Reports do not indicate how long the yard invasion and danger at the back door persisted. The intruders were - at least at the moment of the shotgun blasts - running away from the premises and trespassing on a neighbor's property. Generally, a motive to discourage intrusions would not alleviate criminal charges, for that is an area (like retribution and punishment) left to law enforcement and the justice system. On the other hand, the intruders were armed and had fired at the house.
Sidebar. These cases present issues of degrees of homicide. First degree murder typically requires premeditation. From there, however, the "degrees" of murder and lesser charges depend on the defendant's conduct and state of mind such as intentionality, recklessness or negligence amounting to manslaughter. Almost all self-defense cases fit in the "lesser" degrees of homicide. As for which charges to bring and press, prosecutorial discretion reigns nearly supreme.
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We can be critical of the discretion prosecutors have. But like it or not, they necessarily employ it at every stage of a criminal matter from the investigation, to selection of charges, presentations to a grand jury, in plea bargaining, strategy and tactics at trial and on appeal. The criminal justice system and its rules of law depend on prosecutorial judgments to make it work, for better and worse.
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Domestic Violence
Cases of abusive domestic relationships where women are almost always the victims raise acutely troublesome issues. The factors that contribute to women being in abusive relationships and staying in them challenge settled principles of self-defense. In many cases, complaints are dismissed for want of prosecution because the complainant decides not to follow through, yet there are frequently repeat offenses. Advocates for battered women cite police for lack of awareness and attention to domestic violence, ambivalence toward the crime and for making meaningful investigations and reports too low a priority.
Battered women may share the same home as their abuser. They are aware of the assailant's past history and have a strong motive to resist further violence against their person or against others such as children in the house. Yet the likelihood of a physical attack based on prior experience might not be a threat sufficient under the law to validate any pre-emptive action on their part.
The Rico Gray/Marissa Alexander case raises these concerns. It's a case of shooting, but with no injury or death resulting. Florida prosecutor Angela Corey (who led the state's cases against Zimmerman and Dunn) is pursuing a re-prosecution of Marissa Alexander for, as she argues, firing shots to ward off her previously abusive estranged husband. The charges are three counts of aggravated assault with a deadly weapon, which would put her in prison for 60 years, an exceptionally long term when there was not even a wounding.
Alexander has already been in jail for two years from an earlier prosecution. It was reversed on appeal for faulty jury instructions. (According to the Florida Times-Union, the trial judge told the jury the burden of proving self-defense was on Marissa Alexander. It isn't; see the sidebar above.) In the first trial, the judge denied a motion based on Florida's SYG law because Alexander went into an attached garage, got a gun from the car parked there and went back into the house, ostensibly leaving a place of greater safety to return to danger.
Apparently, Alexander rejected a plea deal and head prosecutor Corey has a history of trying rejected plea cases "hard." Corey insists she is protecting the husband's two children who were nearby and that Alexander's shot was at adult height, not a warning shot but bad aim. Gray, whose early statements supported Alexander's version of the facts, changed his story to say she was attacking him.
Should "domestic" violence in the setting of a house where all occupants, at least arguably, have a right to be, be treated any differently? May a woman raise a handgun menacingly toward her spouse who is threatening, but unarmed? If she was beaten in the past, does she have a right to fire the weapon if she reasonably feels menaced but before there is any current physical abuse?
Observations
A prime issue in many of these cases, although not all, is racial disparity. I screened the issue out in this series to focus on the elements of self-defense. However, racial impacts may well be what reforms - if not repeals - changes in self-defense standards and SYG laws in particular. For now, I raise these questions:
1. Should the law in Stand Your Ground states be revised to discourage confrontation? If so, how? If not, why not?
2. Should the "right" to carry a weapon in public places be treated as a conditional right that requires a higher standard of care for human life?
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When you hold a firearm, you have lethal power in your hands. A gun is not like a baseball bat or a knife or a lawnmower. It is a dangerous and powerful weapon readily used by the unskilled, the care-less, the trigger-happy. Carrying a gun enhances, empowers and enables the carrier.
Of course, it can be used at a shooting range or to hunt or decorate a wall. But used as designed, a gun is an inherently powerful and dangerous instrument. Responsible gun owners respect that and act accordingly.
I believe more responsibility should be imposed on those who carry a gun. Precisely because they are so empowered, and their natural ability (whatever it may be) is so enhanced, gun owners and carriers owe everybody else more judgment, more self-restraint and a great deal of common sense. Our laws should call to account anyone - police officer or civilian - who raises a weapon at another human being.
Self-defense must not shield the shooter who is stupid, misguided, negligent or willful. For these purposes, it doesn’t matter by what right, if any, one keeps and bears arms. There is no Constitutional question here. What matters is that we have lost so many of the traditional constraints on the use of deadly force. Today's laws of self-defense are too accepting of irresponsible uses of firearms.
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