I was concerned at the time with the implications of such legislation, both for lawyers and on law and order in general. Two years later, when Texas did away with the duty to retreat, I posted my concerns again and used the phrase “free for all”. I received some criticism at the time and most of the comments echoed one common sentiment: you show up in my house; I kill you.
Being the peace loving, pot smoking, Grateful Dead listening type, this open invitation to engage in needless violence perturbed me, but I was assured by smarter people that it was not a concern. Now, 4 years later, it seems as though I’m not the only one vexed by such legislation. As this article from the Miami Herald illustrates, more than just a naive blogger from CT is vexed by the law and what to do with it.
I think this would be an appropriate time to state that as a criminal defense lawyer, I’d love this law. That a fear of imminent physical danger serve as a bar to prosecution would be a godsend from the purely adversarial scenario. But as a resident in our communities, I’m not sure that this is still a good idea. To remove an incentive to de-escalate conflict and prevent needless violence doesn’t strike me as very smart or desirable.
I think I would agree with her. None of the people who responded to my posts back in 2005 saw this as encouraging vigilantism or resulting in a large number of acts of violence. But as the cases in Florida demonstrate, there are more than a few:
The Fourth District panel upheld a trial judge’s decision to deny immunity to Ricardo Velasquez, clearing the way for Broward prosecutors to take the attempted murder case to trial. Velasquez, who claimed self-defense for his role in a Hollywood knife fight, eventually pleaded guilty.
In April, a judge denied immunity to a New York partygoer who fatally stabbed a homeless man in a South Beach alley. Lawyers for Nadim Yaquibe, 21, had argued the youth was acting in self-defense when he killed Roberto Camacho, 50, who was unarmed but had threatened to kill Yaquibe.
Circuit Judge Daryl Trawick did, however, reduce a second-degree murder charge to manslaughter. Both sides are appealing.
Another defendant, Damon Darling, 24, was accused of murder after he got into a gunfight with a rival in the courtyard of a Liberty City housing project, killing 9-year-old Sherdavia Jenkins in the crossfire.
Another self-defense case under close watch is that of Gabriel Mobley, 33. In February 2008, Mobley shot and killed two unarmed men, one of whom had punched a friend outside Chili’s Grill & Bar near Miami Lakes. Mobley holds a lawful concealed weapons permit.
In May 2008, Maurice Moorer, 25, shot and killed his ex-wife’s new lover, Eddy Moore, after a dispute that started earlier in the day at Moore’s house.
When Moore was killed, he was sitting in his car outside Moorer’s house. Miami-Dade police said Moorer had egged his rival on, luring him to his house, then walked out armed with a handgun.
But Moorer claimed he fired — some 15 shots — because Moore had been threatening him and might have been reaching for a weapon, defense lawyers Terry Lenamon and Kenneth Swartz say.
Of course, it is entirely debatable whether the existence of a duty to retreat may have prevented these killings, but it certainly is food for thought.
As a criminal defense lawyer, it is my job (and one that I tremendously enjoy) to protect the Constitutional rights of my clients, to hold the State to its burden of proof beyond a reasonable doubt and to represent my client zealously and to the best of my ability. But I do not agree that it is part of my job to condone violence or to be indifferent to it. Personally, I abhor violence. So while it may be an excellent defense to the crimes charged that a person has no duty to retreat and thus is immune from prosecution for the use of deadly force, you will not find me saying that I think this law is good. I think it’s bad and dangerous.
There are several areas that generally trouble me in self-defense cases. One is the rigid implementation of the prohibition against the “escalation of force”. Take, for example, the scenario of the bar fight. Two men get into a scrap at a bar and one gains the upper hand. This one man starts pummeling the other, raining him with fierce blows to the head and side of the body. The “victim” (soon to be defendant) cannot adequately fight back and is being beaten pretty badly. He fortuitously spies a knife on the bar, grabs it and stabs the attacker.
Since he had a duty to retreat, and since he “escalated” the level of force, we typically call it “imperfect self-defense”. That’s a misnomer and a legal fiction, in my opinion. To me, there’s no example of self-defense that’s more on point. The whole purpose of self-defense is to defend oneself. How is one expected to return reasonable force with reasonable force, when one is clearly incapable of doing so and thus being mercilessly beaten?
The test for self-defense, in cases such as those, needs to be modified. Currently, one is not permitted to go from reasonable force to deadly force without any legal consequences. I think that’s unrealistic. Juries should be permitted to reach the conclusion that at the time, the defendant saw no other way to escape his punishment than to use deadly force in order to make that retreat.
However, this exception should be limited to circumstances where the defendant is indeed incapable of making a getaway.
Granted, I have not looked at the intricacies of self-defense law in a while, but this is one thing that’s bothered me for ages. Do you have similar problems with self-defense laws? What would you change about it? And what of FL and TX’s removal of the duty to retreat? The forum is yours.
[Interestingly, FL is not the only jurisdiction wrestling with these concepts. Britain is also engaging in some debate over the "castle doctrine" and the presumption of imminent threat of deadly force during a home invasion, based largely on a case I briefly mentioned in this post a while ago.]
Because I love you all so much, I leave you with this heart-wrenching song:
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