Stand Your Ground

by Nola

As the facts of what happened between Trayvon Martin and George Zimmerman finally get the investigation they deserved a month ago, there’s been much divided talk on the internet about whether Trayvon was an “innocent kid” or “aggressive thug” and whether Zimmerman acted as an aggressor or in self defense.

I won’t speculate on the events of that night or what my “feelings” are as to what happened. I don’t “hope” for one set of facts to emerge over another. I’d really just like the truth, and at this late stage, I think expecting truth is pie-in-the-sky, to be frank.

But there’s a dialog NOT being had as those on the Left and the Right double-down on their staunch positions on the Second Amendment.

It’s no secret that I am not a fan of guns. This is NOT to say that I believe guns should be made illegal and stripped from American citizens. Let me repeat that, because what I say next always gets heard as saying just the opposite: I DO NOT BELIEVE GUNS SHOULD BE MADE ILLEGAL AND STRIPPED FROM AMERICAN CITIZENS.

I believe that America should have fair, just laws about guns—what it takes to own one, and accountability for responsible use (whether legally owned or not)—and that the laws we currently have relating to gun control should be rigidly enforced. I’d also like to believe that gun advocates want the same thing.

Guns are inherently dangerous. It’s my opinion that if you are going to own a gun, then you should be held to a standard of accountability in responsibly using it. Period.

Florida has a “Stand Your Ground” law. Generally, this means that a person may use deadly force in self-defense when there is reasonable belief of a threat, without an obligation to retreat first.

Now, I am a lawyer but not a criminal one, and not a Florida one. Louisiana has its own Stand Your Ground law. Here it is:

Louisiana Revised Statute 14:20, Justifiable homicide

A.  A homicide is justifiable:

(1)  When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

(2)  When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention.  The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

(3)  When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.

(4)(a)  When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.

(b)  The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.

B.  For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:

(1)  The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.

(2)  The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.

C.  A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.

D.  No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

(Emphasis added.)

In Louisiana, this statute provides a defense to a crime. This is important. It means that if you shoot someone, you get arrested. The DA then reviews the evidence and decides to prosecute or not. If he does decide to prosecute, you go to court. And the trier of fact (judge or jury) can take into consideration whether you acted in such a way as to give rise to a legal defense such that even though you shot someone, such shooting is legally permitted.

Think about a killing that’s “in the heat of blood”—that’s a lesser offense than a killing “in cold blood.” If I am arguing with you and we get so heated that I see red and pick up the first thing I see (a gun, frozen turkey, whatever) and use it to kill you, the law goes easier on me than when I plot and plan and lay in wait to take you out. My “heated blood” is a defense. To a crime. That’s tried in court after a DA decides he has the goods to prosecute me. After I am arrested.

This law being a “defense” is also important as it relates to the job of the police. In such cases where legal defenses are permitted to mitigate a crime, the job of the police is to seek out the crime, not the defense. It’s then the job of the DA to decide to prosecute, weighing the existence (or not) of any and all defenses. If the DA feels he has a strong enough case, it goes to trial. It is NOT the job of the police to weigh the defense in deciding whether a crime was committed.

I lay all this out because it seems Florida has a different law than Louisiana, or is not following it as intended. In Louisiana, I’m pretty sure Zimmerman would have been arrested on the spot. And at his trial, the issue of his standing his ground (or not) would be evaluated and decided by the trier of fact. In fact, Yoshihiro Hattori‘s case out of Baton Rouge in 1992 suggests just this. I implore you to click that link and read Yoshi’s story. It’s an important one that we should never forget.

So what’s really sticking in my craw about the Martin case is that many of the folks I know that are proponents of guns have already decided that Zimmerman was within the Florida Stand Your Ground law and this case should be over and done with. They, like, apparently, the Florida police, don’t see the need to arrest Zimmerman, to try him for his admitted shooting, and to allow the defense to be presented at trial.

What happened to law and order in America? Heck, although I’d like stricter laws relating to guns in this country (for both criminals and law-abiding gun owners), I’d settle for enforcement of the ones we have on our books. And I would expect pro-gun Americans to rally that call. If you own a gun and are responsible with your use of it, don’t you want others to be as well? Don’t you want those that are irresponsible to be held accountable so that your use may continue unfettered?

I don’t know whether, in fact, Zimmerman acted in self defense in shooting Martin such as to give rise to a defense to the crime. He may have. But shouldn’t the DA and the courts be hashing that out and not the police? It seems gun advocates are suggesting that this case be dropped at the police level. Don’t hassle Zimmerman with a trial if he the police believe he acted in self defense. But that level of accountability I spoke of earlier? It’s here: Having folks that have used inherently dangerous weapons in such a way as to have caused harm (or death) be held accountable with the process of  determining whether that use gave rise to a legal defense.

Here’s a good article written by Times Picayune’s Jarvis DeBerry discussing the differences between Louisiana’s Stand Your Ground law and Florida’s. Thinking any trip to Disney is on perpetual hold until Florida decides to bring justice back to its laws.

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