A vex at your door: revisiting FL’s stand your ground law

Back in 2005, when this blog was in its infancy, I wrote a few posts about a new FL law which removed the duty to retreat before employing deadly force. The law, in essence, expanded the concept of the “castle doctrine” to, well, everywhere:

(3)  A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

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.

No one disputes that Maurice Moorer fired more than a dozen bullets to kill a rival sitting in a car in West Little River last year.

Moorer claimed self-defense. Police detectives begged to differ.

But prosecutors say they were forced to drop a murder charge against Moorer because of the controversial 2005 ‘Stand Your Ground’ self-defense law that broadened a citizen’s ability to use deadly force. “There is no law now that we can point to say Moorer should have backed off, that he should have avoided this,” said Miami-Dade Assistant State Attorney Kathleen Hoague, who says the new law “cheapens human life.”

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.]

H/T: CrimProf

Because I love you all so much, I leave you with this heart-wrenching song:

8 thoughts on “A vex at your door: revisiting FL’s stand your ground law

  1. Don Waggoner

    I cannot basically disagree with your thoughts. However, most of the situations you describe or cite where prosecutions are taking place are exactly the same type situations in which law enforcement asserts a privilege of self defense or necessity to preserve the peace, and for which law enforcement officers are rarely prosecuted and, when they are prosecuted, are rarely convicted. I wish, in addition to your thoughts and suggestions, that the ame rules applied to law enforcement that applies to the citizen in general.

    Reply
    1. Gideon Post author

      Don, we discussed this issue a few weeks ago in light an acquittal of a police officer who shot and killed someone he thought was pulling a weapon. That acquittal prompted a former prosecutor to write an op-ed calling for greater protections for officers.

      Reply
  2. LJS

    I think part of the problem is helping prosecutors, defense attorneys, and jurors understand the dynamics of a self-defense situation. Stress, the presence of a weapon, and normal reactions to life-n-death fear are known to cause problems with perception and memory. What seems like an obvious avenue of retreat to a prosecutor sitting in his or her office, a judge on the bench, or 12 jurors safe and sound in the deliberation room may literally not have been visible to a defendant affected by stress-induced tunnel vision and focus on the assailant’s weapon.

    Add to this the problems of reaction time, and that waiting to be sure of the opponent’s intentions may mean that it is too late and one has been stabbed, shot, or otherwise disabled. Today, there is a funeral in the Boston area for Surendra Dangol, a clerk who complied with every request of an armed robber, and was shot and killed anyway. There are times one may be able to avoid force, and others when it is not possible — and it is very hard to figure out which is which with hindsight.

    This is a tough area — and for the normal person, the psychological impact of harming or killing another person, even when perfectly justified, are extreme. I would hope that no one takes the possiblity of self-defense lightly, regardless of the heated rhetoric one may encounter.

    Reply
  3. Renaissox

    I would never have said that the law wouldn’t have resulted in these kinds of situations. Numerous people involved in criminal justice have claimed that the law addresses a problem that doesn’t exist because they have never prosecuted someone acting in self defense.

    This is because some of the people they deluded themselves and everyone else into believing were hardened criminals were really just acting in self defense. You can be sitting somewhere minding your own business and someone can run or drive up to you and scare the crap out of you in a threatening (but afterwards concealable) manner with aggressive behavior, and then if you yell at them “Hey cut it out or else” the DA can charge you with assault or a felony version and try to convince someone that you were being some terrorist ahole to yell back at the person.

    The whole point of the stand your ground laws is to inject minor elements of anarchy into our society such that people cannot with immunity threaten people or property in ways that cannot be prevented or detected by the police.

    I don’t believe the police should ever not look carefully at a claim of self defense, and between this and the progression to trial if the person actions are suspect are a deterrent against abusing the law. But this law couldn’t be more just in my opinion.

    Reply
    1. LJS

      No. The prosecutor is an idiot. She likely needs a class that talks about use of force and self-defense in the real world like this one.

      http://www.fbi.gov/publications/leb/2009/april2009/law_enforcement.htm

      Why is the prosecutor an idiot? “She argued McTigue resorted to deadly force unnecessarily – without firing a warning shot or displaying the gun to ward Palmer off.”

      Warning shots:
      No self-defense trainer advocates these. Many police departments forbid them as a matter of policy. Why, you ask?

      (1) The bullet goes somewhere — and can travel for a very long ways, thru objects, with enough force to injure or kill. You can’t just fire it into the air — it may come back down with enough force to injure or kill, or riochet off a branch or pole you didn’t see, or otherwise cause harm. That’s irresponsible and dangerous — the prosecutor shouldn’t be suggesting unaimed fire is a good idea, never mind legally required.

      (2) To safely fire a warning shot, the defender would have to look around for a safe backstop that could absorb the bullet without risk to others. That means looking away from the aggressor (with the risk that he’s going to do something while the defender is looking around)

      (3) The defender is wasting one of a very limited number of shots the defender may have. Remember that bullets aren’t one-shot killing devices — I’ve defended cases where the victim was shot 5 or 6 times in the torso with a medium caliber bullet and lived to testify against the client. (And had they been so minded, was physically capable of shooting or stabbing or fighting with the client after those shots.)

      That was a stupid argument. The prosecutor deserves to be mocked for it.

      As described in the article, the shots were fired when the men were still at fist-fighting range. That makes the second argument about displaying the firearm stupid.

      (1) Threatening someone with a firearm is usually a felony. Self-defense may apply, but usually under the same rules for actually using it — _imminent_ danger of death or serious bodily harm.

      (2) If you are actually in imminent danger, you don’t have time to fool around with displays and threats. Self-defense trainers often do demos talking about reaction speed and how fast an aggressor can cross even 20 feet to wrestle with you over the gun if you display and hesitate to see what they are going to do.

      (3) These guys aren’t at that kind of range — they are at fist-fight range, where the aggressor can grab and wrestle for the gun if it is merely displayed, putting both men at risk, as well as anyone in the area who might get hit with a stray bullet in the melee.

      Police act under different rules and have different tools when they say “Stop or I’ll shoot!” Generally, they are at range to do it safely. Many wear body armor, making the risk a bit less. They have training in avoiding gun grabs. They have training in how to hold a person at gunpoint. They carry handcuffs to secure the person afterwards. And usually they have called for backup. The average person doesn’t have those tools.

      Typical self-defense trainer advice would be (1) Avoid the fight, even if you are legally entitled to stand your ground, get out of there if you can do so safely and call the cops. (2) If you can’t get out and you find yourself in that imminent danger of death or serious bodily harm, then draw and fire — you probably don’t have time to do anything else.

      The prosecutor may have a point about retreat, the story is not clear. It is not clear what she means about “arming himself”. (The story implies that the defender was lawfully carrying when the fight broke out, not that he specifically armed himself in anticipation of this fight.) But to the extent that she did have a point, she lost too much credibility with the preceding stupid points.

      [Which I did have a Danbury prosecutor make in a self-defense case years back that lost at trial and on appeal. I’m still irked about the result in that case.]

      Reply
  4. Pingback: Shooting a stranger on your porch is still a crime: The Stand Your Ground bogeyman | a public defender

Leave a Reply