TESTIMONY OF JONATHAN E. LOWY Director, Legal Action Project, BRADY CENTER TO PREVENT GUN VIOLENCE ON STAND YOUR GROUND LAWS: CIVIL RIGHTS AND PUBLIC SAFETY IMPLICATIONS OF THE EXPANDED USE OF DEADLY FORCE BEFORE THE UNITED STATES SENATE COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS October 29, 2013 Thank you Chairman Durbin, Ranking Member Cruz, and the members of the Subcommittee for the opportunity to offer my testimony. I hope it will aid in your consideration of how we can keep Americans safe and maintain a fair and effective system of justice. I offer this testimony on behalf of the Brady Center to Prevent Gun Violence. The Brady Center is a non-profit, nonpartisan organization whose mission is to create an America free from gun violence, where all Americans are safe at home, at school, at work, and in our communities. For 24 years the Brady Center s Legal Action Project has been the nation s leading public interest law program devoted to representing victims of gun violence and defending reasonable gun laws, with the goal of reducing gun violence. Like most Americans, we believe that 100,000 people shot or killed every year with guns is unacceptable, and that stronger laws are needed to make it harder for dangerous people to obtain guns and engage in violence. For example, the overwhelming majority of Americans including most gun owners and National Rifle Association members support requiring Brady background checks before any gun is sold. The last thing Americans want is to relax our gun laws, or to make it harder to bring to justice those who shoot innocent people. There are many issues concerning criminal justice about which there is reasonable disagreement, but there are some things on which we should all agree. The law should discourage violent interactions that can lead to unnecessary deaths and injuries. The law should
punish those who unnecessarily kill or injure other people, when those injuries could have been avoided. As the death of Trayvon Martin and the acquittal of his killer demonstrated, Stand Your Ground laws turn these basic precepts upside down. There is a fiction that Stand Your Ground laws are needed to enable people to defend themselves. That is incorrect. Before Stand Your Ground laws, criminal law included timehonored concepts of self-defense and justification that allowed people to reasonably defend themselves. However, the law also required people to take reasonable measures to avoid conflict, if that could be done safely. These principles encouraged peaceful interactions and deterred violence. The result was to make Americans more safe, and to promote justice when people were wrongfully harmed. But Stand Your Ground laws, especially when combined with lax shall issue concealed firearms carrying laws, can encourage violent interactions, make Americans less safe, and make it more difficult to bring to justice those who wrongfully injure or kill. While Trayvon Martin is far from the only victim of these dangerous changes to the law, his is the most prominent case in point. While there is disagreement over exactly what happened that night in Sanford, Florida, and whether George Zimmerman s verdict was fair, there is much about which we should all agree: 1) A 17-year-old armed only with candy and a soft drink should have been able to walk home in his father s neighborhood without being shot and killed. The fact that Trayvon Martin was killed is a bad outcome, and the law should prevent similar bad outcomes in the future. 2) A man carrying a loaded firearm should not feel that he is entitled or emboldened to follow and ultimately kill an unarmed 17-year-old, especially when law enforcement advise him to let police handle the matter. The fact that George Zimmerman killed Trayvon Martin is a bad outcome, and the law should prevent similar bad outcomes in the future. 3) A man who shoots and kills an unarmed teenager, when that could have reasonably been avoided, should be subject to some punishment. The fact that George Zimmerman would have been subject to more punishment if he had not buckled his seat belt when he drove home is a bad outcome, and the law should prevent similar bad outcomes in the future. 2
The fact is that were it not for Florida s Stand Your Ground Law, the killing of Trayvon Martin might well have been deemed a punishable crime under Florida law. And were it not for Florida s lax concealed carry ( CCW ) laws, Trayvon Martin would likely be alive today. Stand Your Ground laws should be examined in the context of the carry laws that authorized Zimmerman to carry a loaded gun that night. Florida s Lax Concealed Carry Laws Before Florida s legislature listened to the corporate gun lobby and relaxed its laws regulating the carrying of loaded hidden handguns in public, a person who did not have a legitimate need or sufficient judgment to carry a loaded gun in public was not entitled to carry one; law enforcement had the authority to protect the public by preventing dangerous people from carrying guns. When Florida enacted the gun lobby s shall issue concealed carry laws, law enforcement was deprived of any role in determining whether a person posed too much of a danger to the community to warrant his carrying guns in public. Instead, if an applicant met a low threshold of certain limited objective criteria, the State was required to issue him a CCW license, even if law enforcement knew that person was dangerous and had no business carrying a gun, and no need to do so. As a result, even though George Zimmerman reportedly had been charged with resisting an officer with violence, battery against an officer, had a motion for a domestic violence restraining order filed against him, and was diverted to an alcohol education program (all before he shot Trayvon), law enforcement had no authority to deny him a CCW license. Thus, under Florida s shall issue concealed carry law, Zimmerman was entitled to carry a loaded hidden handgun. Indeed, even after he killed Trayvon Martin, his at best questionable conduct and judgment that night would not disentitle him to a CCW license under Florida law. Florida s lax CCW law has enabled numerous individuals with substantial criminal records to obtain permits to carry guns in public. According to an analysis by the Orlando Sentinel, burglars, drug offenders, child and domestic abusers, and even individuals found responsible for homicides have obtained CCW permits in Florida. One Florida permit holder has been arrested 22 times for drug trafficking and aggravated assault, the Sentinel investigation revealed. The investigation also found six registered sex offenders with valid permits issued by the state. 1 1 Maines, John and Megan O Matz. In Florida, It s Easy to Get License to Carry Gun. Orlando Sentinel, January 28, 2007. http://articles.orlandosentinel.com/2007-01-28/news/mguns28_1_carry-a-gun-license-to-carryconcealed. 3
Florida s Stand Your Ground Laws Florida s enactment of the gun lobby s Stand Your Ground law ( SYG ) only increased the dangers posed by its lax concealed carry laws. A Texas A&M study found that Stand Your Ground laws led to a net increase in homicide, with no evidence of deterrence of other crimes. 2 Another study found that SYG laws were associated with a significant increase in homicides among white males in particular. 3 An analysis by the Tampa Bay Times found that Stand Your Ground is frequently used in Florida by drug dealers and gang members to avoid murder charges, simply on their own claims of self-defense. The Times study also found a disparate racial impact in Stand Your Ground cases; shooters went free at a 14% higher rate when the victim was black as opposed to white. 4 These results should not be surprising when one considers how SYG has removed long established legal principles that previously deterred violent conduct and unnecessary killing. Proponents of Stand Your Ground often misleadingly suggest that SYG is needed to enable people to protect themselves. Not so. The law has always recognized a right to selfdefense, and a right to use force when reasonably necessary to defend one s self. But Stand Your Ground changed those long-held principles in several dangerous respects, including: Eliminated Duty to Avoid Danger in Public Spaces The Castle Doctrine historically allowed individuals to protect their homes and defend themselves against intruders, even if they did so by using deadly force. As you are entitled to exclude others from your home (which is, after all, your castle ), there was a logic to not requiring you to retreat from home invaders. But the Castle Doctrine was narrowly confined to the home. Everywhere else you had a duty to take reasonable measures to avoid conflict, so long as your retreating would not subject you to danger. In Florida, for example, you had to use every reasonable means to retreat before you could justify the use of deadly force. This made sense, for the law should discourage violent exchanges, and public spaces are nobody s castle. Trayvon Martin had no lesser right to walk in his neighborhood than George Zimmerman. 2 Cheng, Cheng and Mark Hoekstra. Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Expansions to Castle Doctrine. Texas A&M University, forthcoming in the Journal of Human Resources. http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf. 3 McClellan, Chandler and Erdal Tekin. Stand Your Ground Laws and Homicides. Georgia State University, IZA Discussion Paper No. 6705. http://ftp.iza.org/dp6705.pdf. 4 Martin, Susan Taylor, Kris Hundley and Connie Humburg. Race plays complex role in Florida's 'stand your ground' law. Tampa Bay Times, June 2, 2012. http://www.tampabay.com/news/courts/criminal/race-plays-complexrole-in-floridas-stand-your-ground-law/1233152. Source data available at http://tampabay.com/stand-your-groundlaw/data. 4
Stand Your Ground laws exported the Castle Doctrine into public spaces, eliminating the duty to take reasonable measures to retreat from conflict, even if retreat can be done safely. Extending the Castle Doctrine into public spaces made no sense, for unlike homes, people have an equal right to be in public spaces. Telling two people that they have a right to stand their ground when on common ground is a recipe for conflict, and often violence. As one of the jurors in the Trayvon Martin case has said, Zimmerman was guilty of not using good judgment but under Florida s new SYG law, that wasn t enough to convict him. Creates a Presumption of Justified Fear Before Stand Your Ground became the law, to justify the use of force under the Castle Doctrine, a criminal defendant would have to actually show that he believed force was necessary and that his belief was reasonable. Again, there was a logic to the requirement that a defendant show that his fear was reasonable; after all, the law should not allow someone to unnecessarily shoot someone else simply because the shooter wrongly imagined that he was threatened by someone who was actually harmless. But Stand Your Ground did away with this sensible requirement in Castle Doctrine cases. At least in certain defense of home cases, when SYG defendants use deadly force they are presumed to have held a reasonable fear, without any evidence that they were in fear, or that their fear was reasonable. As the only other witness may be dead in such cases, it often can be very difficult to rebut this presumption. The head of the Orlando Police Department s homicide squad explained that before SYG, when the police would go to investigate a case, they d ask where is the weapon [to justify the defendant s fear]? 5 But after SYG, in some cases defendants claims that they were in fear can simply be accepted without supporting proof. As Miami Police Chief John F. Timoney recognized, Whether it s trick-or-treaters or kids playing in the yard of someone who doesn t want them there or some drunk guy accidently stumbling into the wrong house... [the law is] encouraging people to possibly use deadly physical force where it shouldn't be used. 6 Gives Immunity and Subjects Victims To Potential Costs SYG law also gives special legal protections to SYG defendants, by providing them with special immunity from criminal prosecution and civil action for the use of force that is deemed justified. Further, under SYG, courts shall award reasonable attorney s fees, court costs, 5 Henry Pierson Curtis. Gun law triggers at least 13 shootings. The Orlando Sentinel, June 11, 2006. http://articles.orlandosentinel.com/2006-06-11/news/deadlyforce11_1_new-law-self-defense-ground-law. 6 Abby Goodnough. Florida Expands Right to Use Deadly Force in Self-Defense. The New York Times, April 27, 2005. http://www.nytimes.com/2005/04/27/national/27shoot.html. 5
compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution. 7 That shifting of costs is wholly contrary to the standard rule in the American system of justice, in which each litigant is responsible for her own costs. By eliminating the generally accepted American rule in SYG cases, only the wealthy can afford to bring civil actions, since most people would be unable and unwilling to risk bankruptcy to bring a civil case for which victory is never certain. In short, the law makes the George Zimmermans of the world favored citizens in this important respect, makes victims families like Trayvon Martin s into second-class citizens, and it deters worthwhile civil actions, thus skewing the scales of justice. Effect on the Zimmerman Case We may not know with certainty whether Stand Your Ground laws emboldened George Zimmerman to follow and shoot Trayvon, though they may well have, as trial testimony stated that Zimmerman familiarized himself with those laws before the incident. But it is certain that Stand Your Ground made it more difficult to bring Trayvon s killer to justice. Florida s Stand Your Ground law allowed Zimmerman to avoid even facing criminal charges for six and a half weeks following the shooting of the unarmed teenager. Only a public outcry, and the appointment of a special prosecutor, led to charges being brought against him. And while Zimmerman didn t mount an SYG defense during his eventual trial (to do so would have required him to testify), the jury instructions incorporated Stand Your Ground law. Thus, the jury was instructed that Zimmerman had the right to defend himself with lethal force if he felt threatened, and the jury did not consider whether he could have reasonably avoided the conflict. One juror said after the trial that under this instruction, she had no choice but to vote for acquittal. Before Stand Your Ground, the jury would have been instructed that Zimmerman could not justify his use of deadly force unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force. Even if he was wrongfully attacked, his use of force would not have been justified if by retreating he could have avoided the need to use that force. Those instructions could have reasonably led jurors to find that Zimmerman should have remained his car and followed the police instruction to not follow Trayvon. By choosing to follow Trayvon in the darkness he failed to avoid the danger, so jurors could find that he was not justified in ultimately shooting Trayvon. Stand Your Ground removed this obligation to take reasonable measures to avoid conflict. Instead, so long as Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to 7 Fla. Stat. Ann. 776.032. 6
stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony. 8 That instruction could well have made all the difference between innocence and guilt. As Paul A. Logli, president of the National District Attorneys Association, stated of the law, [The Stand Your Ground laws] basically giv[e] citizens more rights to use deadly force than we give police officers, and with less review. 9 Conclusion Today, George Zimmerman is free to walk the streets of Florida with a loaded, hidden handgun. Indeed, even after he killed Trayvon, Zimmerman reportedly threatened his wife and father-in-law with a gun. Yet there is still no legal authority in Florida to take away his concealed carry permit. Unfortunately for the public safety of Americans, efforts by the National Rifle Association and its allies to spread Florida s dangerous combination of Stand Your Ground and permissive concealed carry across the nation have been largely successful. Over half the states now have Stand Your Ground and shall issue CCW laws, following strong NRA lobbying that falsely claimed that such laws would make communities safer. It is said to be a mark of insanity to do the same thing, while expecting different results. As long as Stand Your Ground laws send a message that encourages people to shoot first and ask questions later, and lax concealed carry laws allow dangerous people to carry loaded hidden handguns in public, we can expect tragedies like Trayvon Martin s. The American public deserves better. 8 The Honorable Debra S. Nelson, Circuit Judge. Instructions for George Zimmerman jury. Available at http://www.ajc.com/news/news/national/document-instructions-george-zimmerman-jury/nynqz/ 9 Adam Liptak, 15 States Expand Right To Shoot in Self-Defense. New York Times, August 7, 2006, at A1. 7