NOLA Notes

A Lifetime Supply of Hardware

When the call came, I thought it was just an odd question needing an answer. So I hit “Ignore” to answer once I was back from lunch. Then my phone beeped and I had a text message alerting me I’d been paged.

“Someone’s died,” I said. And I knew I was right. So I called the hardware store expecting to get Ernie. Lesa answered, and my heart sank. “You haven’t heard, then?” she asked. “Oh, no,” I sighed, “when?” “Last month,” she answered. “So I missed the funeral.” And I swallowed back tears.

It was Ernie who had died. He had seemed immortal, and this news hit me like a kick in the gut. Ernie was my first boss, my brother’s first boss, and my other brother’s first boss too, and the first boss of half my old neighborhood. Ernie told hunting stories and country stories and had a saying for everything.

“Variety is the spice of life,” he’d exclaim when I complained of boyfriend trouble.

“Don’t hoot with the owls at night if you can’t soar with the eagles in the morning,” he’d bleat when I arrived a minute before opening with bags under my eyes.

But when my boyfriend proved to me to be the loser Ernie knew him to be the minute he laid eyes on him, his kindness was palpable. And when I still stuck with the loser because I believed “love conquers all,” Ernie hugged me and allowed me my mistake. And when I needed $5 for gas because the loser lied and “borrowed” my car all night and left me literally on fumes, Ernie didn’t ask a single question. He could read it on the lines of my brow as he handed me a $10.

Eventually, and while still working at the hardware store, I did dump the loser. It was one of the hardest lessons I ever learned: Love is not all you need. But there were upsides to dating the  loser. It has keep me drug free for my life.  And it made me more independent. And all this made Ernie proud of me. Which was another upside.

After four years, I left the hardware store. It’d take me 15 years to stay at a job that long (and more) again.

I’ve never forgotten Ernie. His kindness. His generous spirit. His quiet fatherly love. His pride in his employees leaving him to accomplish bigger and better things.

The years I worked at Ernie’s store equipped me with the hardware I needed to face the world on my terms, without needing to imagine it ending solely as being the supporting role in any man’s life. I’ve used the tools I picked up there well. And I am a better person for having had Ernie in my life. And I will miss him for the rest of my days.

The Coffee Shop Chronicles of New Orleans, Part 2

David Lummis’s second installation of The Coffee Shop Chronicles of New Orleans was recently published. Whereas the first part, reviewed here, was more a “lighthearted and irreverent and even campy” (as Lummis himself describes it) romp in and around the French Quarter, Part 2 is a more serious work. A more serious tone, a more serious topic. And a more true voice, I suspect, of Lummis. And for that, a far richer gift to the reader. Lummis lays bare his soul as he writes of the tormented soul-searching done by the last son of an old-school blue-blood New Orleans family, and the struggle of those who love him to keep him from losing himself in the process.

As Katrina approaches New Orleans, B. Sammy Singleton is on the search for his missing friend, Catfish Beaucoeur. Sammy, in a role similar to Nick Carraway in The Great Gatsby, is the narrator but not the star of CSCNO2.  In his frenetic search for Catfish, Sammy encounters Lee Ann, Catfish’s oldest friend. And when it is clear Catfish is well and truly missing, Lee Ann decides it’s time for Sammy to know what Lee Ann herself knows to be the truth of Catfish’s tortured past.

And in this manner, Lummis takes us to 1970s New Orleans and pre-Civil War Louisiana. And the curses that were cast in the long-ago past and the long spidery legs that still stretch and scratch into the present.

Although it is Catfish who is the subject of the novel and for whom the reader will root, it is Lee Ann for whom the reader will relate: Her struggle to love, and be loved, in an imperfect way but in a way as pure as imaginable. Even when she knows it is utterly and completely hopeless.

Upon one reunion of the teen-aged Catfish and Lee Ann, with Catfish recalcitrant as always for having had to leave Lee Ann to fight his own darkness alone, Catfish extracts a vow from Lee Ann never to give up on him.  Here’s Lummis’s description of Lee Ann’s coming-of-age moment:

 And with that vow, Lee Ann felt herself letting go of all she knew she should do, not for Castfish, but for Lee Ann. And it was as if she were taking leave. And as she sat in the Firebird and listened to Catfish read “Old Glory” out loud, she saw the Lee Ann who knew better, the Lee Ann with the Lucky Strike rasp, open the car door and stride out onto the water. And as she watched herself go, this wiser Lee Ann kept on walking out onto that vast pool of night until she reached the center of Lake Pontchartrain, where she stopped and turned back as tiny waves lapped her calves. It was pitch dark in the Firebird and she was a long way from shore, but she could see Catfish plain as day, his eyelashes, the spray of freckles on the back of his hand. She could feel him too, his essence, his beating heart. Negating the distance, he was bigger than life, while the little girl to his right was scarcely a silhouette. From her marine outpost, Lee Ann waved but the little girl wasn’t looking, so she whistled, then called out. No response. The windows were closed and the words hit the windshield and flapped outward like Halloween crows. Her only chance of getting through to the girl, Lee Ann knew, was to return to dry land, but with the first step she comprehended her ability to walk on water was, like most things, imagined, and that all she could do to keep from sinking was to stay where she was, dead center on the lake. So this she did as Catfish started the car, and the headlights broadcast over the water, and the Firebird backed away from the curb and crawled along the shoreline, then winked red and disappeared.

This is not a cliff-hanger story-plot-twist of a novel. Rather, it’s one of strong character development among real-life afflictions and the struggle for regular folks to face life on its darkest days and push to get through to fight another day. And to love others enough to help them push on as well when they fail to find the strength on their own. CSCNO2 is at times lyrical, at times heart-breaking; and it is part historical fiction. But at all times, it is an attempt to explain who we are by where we—be it an individual, a family, a city, a society—have been. It is genuine and palpable. Written with a deftness so that the reader understands the love, and struggle thereto, Sammy and Lee Ann have for Catfish, and, more, to understand the demons that haunt Catfish. Even if the solution to exorcising those demons is not so obvious.

And best of all, it’s not the end of our journey. Part 3 is yet to come.

More Lessons from Isaac

1. After 4 days, change the oil in your generator. If you want it to love and serve you for a long time, you need to love and serve it first. She deserves it!

2. Take time to talk to your neighbors before and after a storm. Get to know them. Offer what you can (in our case, a/c and a fridge for spoiling food). It’s just about the best thing a storm can do–bring your neighborhood together in a way no Nite Out for Crime or other such contrived event can.

3. Keep meds handy. I’ve had headaches almost every day. Not sure what’s the cause. But aspirin and migraine meds have been in constant use. And working.

4. Allow that you are stressed and may go through stages of anti-social behavior. It doesn’t mean, necessarily, that you are on the slippery slope to a long depression. It could just be your body’s way of telling you you need time to yourself. Take it, any way you can, if at all possible.

5. Be kind to each other, as best as possible. We are ALL stressed. And storms result in unexpected things happening–a roof leak; a generator mishap. Don’t play the Blame Game. Realize we are all in this together, and will get through it, and will get through it better together than alone.

6. Be grateful. Whether it’s for the return of power, or cable or internet. Or for a lack of serious damage, or for no harm to your car or your loved ones. Or all of the above. These are dark days and if you do your best to look on the bright side, there are shining lights of good all around. It’s not easy to stay positive the whole way through. And I am not suggesting you be Pollyanna about it. But when you hit that wall, and we ALL hit that wall at some point (or points), take a breath and KNOW your feelings are normal. And push through to the point where you KNOW that this too shall pass.

May we all be talking about our Isaac experience in the past tense VERY soon.


Lessons from Isaac

Isaac is, for the most part, on the books for New Orleans. After Gustav, we fine-tuned our hurricane preparedness plan and went into Isaac with hardly a thought of evacuating. We made sure the generator was working and had gas; we readied the window unit. We grocery-shopped for food for three days and stock-piled water. We filled our cars with gas and parked one in a raised, covered parking garage. We shuttered our windows and filled a tub with water (in case water pressure got so low it was needed to help flush the toilet). Then we hunkered down (or, as the news tell me it’s called now, “sheltered in place”) and we waited for the storm to hit.

Then we lost electricity. And within 30 minutes, we had the window unit and refrigerator humming back to life. We then settled in to a long sleepless night, listening to bumps in the night as small limbs fell off our oak tree and transformers blew.

In the morning, we patched a damaged, leaky roof (borrowing a ladder from a neighbor); checked and “triaged” my evacuated neighbor’s house. And generally stayed connected via Facebook and Twitter. And massaged stressed nerves.

So what are the lessons of Isaac?

1. Losing electricity WILL happen. Be ready. And be ready for it to last for days. In my case, during Gustav, we purchased a generator and a window unit. Those have already paid for themselves in saved hotel bills.

2. Having good neighbors is critical to a successful Sheltering in Place. You will need them; they will need you. Why go it alone when the folks in the house next door are doing just what you are doing and neither can predict which will be damaged in a way that the other can be of service. I’ll think long and hard about ever leaving my small house if for no other reason than losing the great community of neighbors we have among us. It’s special and much appreciated.

3. Go heavy on the food and fuel. There’s really no such thing as too much of either. And if the store closures/messy streets/lack of electricity/curfew situation is such that you cannot get replenishments for days, you will want to have more than enough. Nothing worse than wasting gas looking for gas. And all salty snacks with no sweets? Bad planning.

4. Bring your patience; you will be rewarded with being able to abate your damages. Hurricanes are slow to come in, hit, then leave. The news wants to hype it from an early point. And the parishes and electric companies always seem to take a painstakingly slow time bringing things back online. And if you are Sheltering in Place, it’s a lot of Not Much Excitement going on. Heck, even if you evacuate, it’s a slow tedious process as you wait to be allowed back home. But if you DID stay, you WILL be doing damage control and clean-up sooner than your evacuees’ counterpart. So appreciate that you have the leg up on this point. They are sitting in a hotel biting nails and worrying; you are wiping water off your floors and keeping worse damage from happening.

Sheltering in Place isn’t for everyone. For me, it’s the right option. I find evacuating more stressful. I hate deciding what things of sentimental/financial value I need to pack. I hate paying the cost of an overpriced hotel whose walls will all too quickly close in on me. I hate that Sun complains that we didn’t pack her right toys. I hate the worry of how long I will be away from my office and CS his shop. I hate worrying about my house and whether it sustained any damage we could be fixing had we stayed.

Staying put, on the other hand, comes with a soundtrack that will scare your pants off. You will fear a fire when a transformer blows; a tree slicing your house in half; floods or trees destroying your car.

I play the odds. And the odds for me have always favored hunkering down. Only once, Katrina, was it the right decision for me to evacuate.

Now I feel we’ve got this Sheltering in Place down pat. It’s no cake walk. But I have zero regret about the plan we made and the path we took. And we’ll pack our supplies up in a few days and cross our fingers we won’t need them again for years to come. But will take comfort in knowing they are on hand if, and when, we next need them.

Why We Tremble

Hurricane Isaac is on the charts and damn near every New Olreanian is a bit bonkers about it. And superficially there seems really to be only one reason why: Katrina. That bitch.

But is that all that’s going on? Some sort of weird Post Dramatic Stress Syndrome for those of us that went through Katrina? Are we just branded now to see the Cone of Uncertainty and have a Pang of Nausea?

I think it’s more than that.

I am 42 years old. And I’ve lived every one of those forty-two years in Louisiana and Florida. Hurricanes are a part of my life just as fishing camps, hot Christmases, and Mardi Gras. I have been through more hurricanes than I can count. I have evacuated for one: Katrina. Well, two. After Katrina, when Sun was a year old, we evacuated for Gustav, swearing never to do it again.

Growing up, New Orleanians didn’t evacuate. We put masking tape on our windows, filled tubs with water, and hunkered down. And that did the trick.

But in these past forty-two years, a lot has changed. And these changes have allowed for the “perfect storm” that was Katrina:

1. We’ve built out all of our suburbia. When I was little, the backyard of my grandparents’ house in River Ridge was woods. Deer would walk to the back door. Now? That whole wood, and miles of other green space, is developed and paved. It’s all filled now with neat rows of houses all over the land.  All the drainage that used to go to these green spaces? Gone. Now all that water goes to canals protected by levees. Levees that, we learned the hard way, will fail us.

2. We’ve lost acres of wetlands. A football field of Louisiana wetlands an hour is currently being lost. And that’s been going on for years. YEARS of loss of our protective barrier. New Orleans is quickly becoming the face of America’s Wetlands.

3. We’re far more dependent on electricity than ever before. Forty years ago, we needed electricity in a storm for air conditioning and our beloved deep freezer. These days we are addicted to our cell phones, tablets, laptops, Tivos, Nooks, etc. It MATTERS now more than ever when we go “off the grid.”

Katrina opened our eyes for the first time in at least forty years. We are vulnerable. Naked. Dependent. And, when a storm starts to form that elliptical shape and heads to the Gulf, we are scared. And too proud to want to admit how scared we are. How scared to the core we are in a way we have never feared before. It isn’t about being inconvenienced; about losing electricity and going off that grid. It’s about losing our identity; our city; ourselves.

So, please, pardon us in the Gulf as we freak the hell out watching what wouldn’t have been cause for concern forty, or even eight, years ago; as we re-assess our lives, our existence, our significance to these United States of America; as we get a few post-Katrina storms under our belt and learn to “live through a storm” again as we’ve done for centuries; as we face the loss of our innocence in a real and all too palpable way.

Scary, isn’t it?

Ebb Tide

I, like I suspect most of us, live my life in the middle. Not a frequency of highs nor lows. But relishing in the highs when they flow in. And allowing for the lows when they, seemingly all too often, flow in as well.

I was given a gift of gratitude, one that has filled me, in turn, with more gratitude than I can articulate. And thus I am spending this week, seven glorious days, at the beach. Away from the low tide that is my house repairs these days. Away from the schedule of work for me and CS and summer camp for Sun. Away from appointments and structure.

Taking the place of our busy schedules, we have long walks on the beach; witnessing the hatching of sea turtles and their trek to the sea; swimming in the surf; kite flying and seashell hunting; discovering mermaids’ purses and hermit crabs; card games at night. And laughter. Lots of laughter.

Yet the tug has already begun. The urge, need, to return home and to the ebb tide of our lives. To look forward to the coming school year and all its challenges. To return to a heavy work schedule that will provide its own highs and lows. To sleep in our own beds and dream of the Christmas in a house newly renovated.  And to look ahead to the next high tide to flow our way.

Relative Blessings

The old adage is that everything is relative. And I know I tend to be a half-empty kinda person. I drive a 14 year old car by choice, but there are times I admit that I am shied by a fellow Mom in a BMW SUV: That I will be judged and found wanting because I don’t care that my car isn’t new and shiny. Or my house bigger. Or the number of my children higher. Or that I dare to have a career.

But this past week has been one, for reasons I can’t exactly pin down, of feeling quite Goldilocks-like. This life I’ve carved out for myself, had the audacity, even, to plan, certainly isn’t one that would be a right fit for everyone, but it fits damn near perfectly for me.

Blessings, I’ve got them. And it’s not always in my vision to see them. And that’s a pestering problem in my life. But as of now, this moment, this past week, I see clearly all the gifts my life offers me. And new ones presenting themselves daily if I but look.

A new friend said to me of her life with her husband of 20 years and their four children: “Life is better every day. Every single day.”

And if you but allow it to be so, it is. And it’s my singular goal now to harness this vision. To share it with Sun and CS. And to allow this just-right life to be just-enough even when shied by shiny baubles others possess.

In the End

In the beginning
There was my career.
Then there was a baby.
But even then it was
My career and my child.
Or is it
My child and my career?
I love both.
I need both.
And the one makes
the other all the more
Especially the days
I get to bring my child
to my office
then leave early
to play in the sun.

Stand Your Ground, Round Two

My last post lead me to the conclusion that Louisiana’s Stand Your Ground law was likely not the same as Florida’s. Turns out, that was an understatement. To understand how this Stand Your Ground law works in Louisiana, and likely other Stand Your Ground States, click here. Bottom-line: It’s an “affirmative defense” that the shooter can use at trial to mitigate the crime for which he is charged. It is not something that is weighed and determined at the police level.

Here’s the entirety of the applicable Florida statutes. I’ve highlighted the portions that are discussed below.

Florida Statutes, Chapter 776 JUSTIFIABLE USE OF FORCE

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(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.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, 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 as provided in subsection (1).

776.041 Use of force by aggressor. —The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Here’s how it breaks down:

In Florida, the Stand Your Ground law is raised to a higher level than an “affirmative defense” that can be used by a shooter at trial to lessen his crime. When asserted by a shooter and there’s no evidence to contest it, the cops CANNOT ARREST the shooter. (“A person who uses force as permitted . . . is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. . . . The term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.” See 776.032(1).) If the cops DO arrest the shooter, then, according to the Sandford Florida City Manager, “the officer MUST swear and affirm that he/she is making the arrest in good faith and with probable cause. If the arrest is done maliciously and in bad faith, the officer and the City may be held liable.” In other words, the police department may have to pay the shooter for the act of having arrested him.

But, wait; there’s more. As if the cops’ hands being tied in merely arresting a shooter isn’t bad enough (such that the case never gets to a D.A., let alone a court), and oh, it is quite plenty bad enough, the law goes further to protect the shooter: The family of the one shot CANNOT civilly sue for Wrongful Death (think of Ron Goldman’s family’s civil suit against OJ Simpson after OJ’s criminal acquittal). And if the family DOES SUE, in addition to not having a case, they are charged for the shooter’s expenses, including lost wages, in defending the suit. (“The court shall award reasonable attorney’s fees, court costs, 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 as provided in subsection (1).” See 776.032(3).)

The law does provide that if the shooter is the aggressor, he cannot invoke this self-defense immunity. But in cases where the shooter not only shoots but kills, well, we all know Dead Men Tell No Tales. Nor do they refute allegations of self-defense. Further, this aggressor/shooter limitation on the immunity isn’t applicable (this is to say that the shooter WILL be granted immunity for self-defense) when “[s]uch force is so great that the [shooter] reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or (b) In good faith, the [shooter] withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.” See 776.041(2). Again, it’d be hard to refute the shooter’s allegations if the only witness is dead by the shooter’s hand.

It is clear, however, in cases where the shooter is the aggressor, the self-defense immunity is not intended to extend when the person pursued by the aggressor/shooter is armed with no weapon at all. Rather, the immunity for an aggressor is only intended to apply when the person pursued presents “imminent danger of death or great bodily harm.” This is NOT generally going to exist in cases where the person pursued by the aggressor is armed with nothing more than his fists. Unless, for example, those fists are of a prize fighter or a ninja or are holding a lead pipe, candlestick or revolver.

What a tragic mess of a law. And it seems to me that its fundamental flaw is rather apparent: It ignores that with rights come responsibilities. Yes, the Second Amendment to the U.S. Constitution grants Americans the right to bear arms. But no rights granted under our Constitution come unfettered. What this law has done has stripped that responsibility from the right. So instead of a person exercising a right and thus having the responsibility of having to account for its legal and responsible exercise, Florida’s Stand Your Ground law has turned that responsibility on its head—it has turned it on he who is shot (and may himself not have been armed and thus was exercising no right at all, well, other than the right to life, etc.) and it has turned it on the police and the judicial system. The shooter gets the benefit of the presumptions under this law and the person shot, the police, the D.A., and the courts get the obligations of having to prove it wasn’t self-defense and financially recompensing the shooter if unable to do so.

The Florida law has shifted the obligation of establishing the burden of proof from he who exercised the right, the shooter (who, in other Stand Your Ground States that use the law as an affirmative defense, is squarely placed with said burden of proof), to the police (and in cases where arrests ARE made, to the D.A.). The law has shifted the weighing of the evidence of the crime against the evidence of the defense from the D.A. (who decides whether to prosecute or not) to the police. The police! And the courts don’t even get involved unless the police actually arrest a shooter (and remember, an arrest for which self-defense exists gives rise to a cause of action by the shooter against the police). So, the police, absent an arrest, are also the triers of fact. Judge, Jury and Executioner. Or, as has been the case in Florida since this law has been enacted, The People Who Decide Not To Risk Financial Liability to Their Employer and Single-Handedly Decide Self-Defense is Warranted Without Needing the Involvement of the D.A. or Courts of Law.

If ever there was a travesty in the law, this is it. And it seems to me the NRA and its members would use the Martin-Zimmerman case to show their support of responsible gun ownership. But oddly, the members of the NRA I know are using their energies to besmirch Martin’s character as they build up Zimmerman’s. Why? Is Zimmerman really who they’d pick as the poster-boy for the NRA? What are they afraid of by having Zimmerman held responsible for having exercised his right? Mind you, I did not say found guilty of murder; rather, I said “held responsible for having exercised his right,” and by that I mean processed through the system of the D.A. and the courts to determine whether self-defense was at play here or not. All I can think is that gun owners fear a conviction against Zimmerman is a conviction against guns and such conviction would erode their right to bear arms, and thus they want to have this case disappear as quickly and quietly as possible without it making it to trial. And if that IS what is keeping gun owners from wanting Zimmerman to be held responsible to account for his exercise of his right in bearing arms, well, that’s as much a travesty as this unjust law.

Note: I am aware that the police have turned this case over to a grand jury to determine whether probable cause exists such that the police are warranted to arrest Zimmerman. To my knowledge, this is the first such use of the grand jury in a self-defense killing case since this law was passed in 2005, and it is the result of the high level of coverage this case has garnered. It does not change my analysis. The police are not obligated to take these self-defense killings to the grand jury and are doing so in this case, as best I can discern, in an attempt to alleviate potential liability for an arrest in the event a conviction at trial is not obtained. In prior incidents during the time from when this law was enacted and Martin was killed, arrests simply have not been made. 

I am neither a criminal attorney nor one licensed to practice in Florida. The opinions expressed herein are my own and are not intended to be conclusive on this area of law. It is expressed solely for the purpose of discussion and debate.

Stand Your Ground

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.