Virginia Democratic Party Chairwoman Susan Swecker is in studio. And Aisha Braveboy, candidate for Prince George's State's Attorney, joins us.
The shooting of an unarmed teenager in Florida has provoked renewed debates over the sweeping self-defense laws in place in more than 20 states. Some prosecutors and law enforcement authorities say the laws are too broad, and have fueled an increase in so-called “justifiable homicides.” Proponents say the laws allow people to protect themselves in the heat of a confrontation. Kojo explores the legal ramifications of self-defense laws for lawyers and their clients.
- David LaBahn President & CEO of the Association of Prosecuting Attorneys
- Jon Gutmacher Criminal defense attorney based in Orlando; author of "Florida Firearms -- Law, Use and Ownership"
- William Eddins State Attorney, First Judicial Circuit of Florida; President of the Florida Prosecuting Attorneys Association.
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. It's a law that prompted comparisons to the Wild West and James Bond's "License to Kill." Florida's Stand Your Ground Law, which citizens don't have to retreat and can use deadly force if they perceive a lethal threat against them is at the center of the shooting death of 17-year-old Trayvon Martin. Florida passed the law in 2005. And since then, more than 20 states have passed similar legislation. Martin's killing is one in a growing number of so-called justifiable homicides that have swept Florida and the nation.
MR. KOJO NNAMDIProsecutors say the law effectively ties their hands since defendants can claim immunity under the law. Proponents argue that Stand Your Ground puts the legal system on the side of law-abiding citizens. But Trayvon Martin's case has prompted the U.S. Department of Justice to open an investigation. And with it, new scrutiny of self-defense laws. Joining us in studio to have that conversation is David LaBahn, president and CEO of the Association of Prosecuting Attorneys. David LaBahn, thank you for joining us.
MR. DAVID LABAHNThank you, Kojo, for having me on the show.
NNAMDIJoining us by telephone is William Eddins, state attorney for the First Judicial Circuit of Georgia (sic). He's also president of the Florida Prosecuting Attorneys Association. William Eddins, thank you for joining us.
MR. WILLIAM EDDINSThank you very much. I'm actually the state attorney for the First Judicial Circuit of Florida and, as you mentioned, president of the Florida Prosecuting Attorneys Association.
NNAMDIAlso joining us by phone is Jon Gutmacher, a criminal defense lawyer based in Orlando. He's also author of "Florida Firearms: Law, Use and Ownership." Jon Gutmacher, thank you for joining us.
MR. JON GUTMACHERMy pleasure.
NNAMDIIf you're interested in joining this conversation, you too can call us at 800-433-8850. Would you feel more safe or less safe in a state with Stand Your Ground-style laws? 800-433-8850. You can send email to firstname.lastname@example.org, send us a tweet @kojoshow or go to our website, kojoshow.org and join the conversation there. David LaBahn, the 2005 Florida law that is at the center of the Trayvon Martin shooting is called Stand Your Ground.
NNAMDIAnd there are similar laws in more than 20 states around the country. Can you explain what the Stand Your Ground law says and how it extends on the Castle doctrine, which says we have the right to defend ourselves against home invasion and attack.
LABAHNSure. Thank you. Actually, the number now is 32 states have enacted legislation in this area. And the basis behind Stand Your Ground is really an expansion of the Common Law principle. Common Law would say you have the right to defend yourself and your family and your home from attack. The idea and the concept behind Stand Your Ground is to move it beyond the home.
LABAHNMoving -- other things like the Florida statute which is an occupied and also allows for there to be this immunity provision that you brought up is not only -- self-defense used to be and continues to be an affirmative defense. And instead what is done with the statute and others is to give civil and criminal immunity to the killer. And that's an extraordinary extension. And you used the phrase tying the hands of prosecutors.
LABAHNOnce you granted immunity that is placing that particular shooter and killer in a position that not even a police officer would be, police officer having qualified immunity. So this is an extraordinary measure. We have no quarrel on behalf of the Association of the Common Law, it's when you move it to other areas that causes these difficulties.
NNAMDIBill Eddins, before Stand Your Ground passed, what were citizens required to do if they faced a dangerous confrontation?
EDDINSWell, they were required to retreat if they could safely do so anywhere in Florida other than their home. However, if they could not safely retreat, they could even then use reasonable force to defend themselves if they were expecting to be killed or severely injured.
NNAMDIJon Gutmacher, you say there has been a lot of misinformation about the Stand Your Ground laws and the media storm around this case starting with the fact that this law does not necessarily protect defendants. In this case, George Zimmerman, the man who shot Martin, can you explain?
GUTMACHERWell, we really don't know if the Stand Your Ground portion of the law will apply to him or not because we don't have enough facts that have come out to make a determination of that. But the Stand Your Ground Law really hasn't changed the law in Florida, except to dissolve the retreat rule. The same basic principles are still in existence. As far as the immunity is concerned, to a large extent, it's not an immunity that's any different from an affirmative sense other than it does give the defendant a chance for evidentiary hearing that they didn't have before.
GUTMACHERBut it's still the defendant's burden by preponderance to show they're entitled to it. So, it really hasn't changed a lot in the state of Florida. I was a prosecutor for five and a half years. I have been a defense attorney for about 25. I haven't seen a lot of changes because of this law, in my opinion.
NNAMDIJon Gutmacher, I'll start with you, but I'd like both David and William to also give their view of this. Jon, how is a determination made that a claim of self-defense is reasonable? What factors are taken into account?
GUTMACHERWell, it has to be objectively reasonable under the circumstances. The law is quite clear that you have to have a reasonable fear of imminent death or great bodily harm to yourself or another. And that's a pretty clear standard or you have to have a reasonable belief that a forcible felony is about to take place in imminent fashion and that the use of deadly force is both reasonable and necessary. That's been the law here for just about forever. So, that hasn't changed at all.
EDDINSI mean, it's a question of evidence. If somebody says -- if the police respond to a scene and somebody says it was self-defense and this is what's happened and then you look at all the evidence and you have to make a determination from that as a police officer as to whether or not that's consistent to what the person is saying. If it's not consistent, you may have probable cause for an arrest.
EDDINSIf it is consistent, then you continue to gather evidence to make sure that the determination is correct. That's what the Sanford Police Department is doing right now. The problem with this whole case has been the failure to release any information so that the public had no idea what's going on. It's, to me, incredible that the failure to release information has gone so long.
NNAMDI800-433-8850 is the number to call. Do you feel the burden of proof in self-defense cases is too low or just right? 800-433-8850. On to you David LaBahn.
LABAHNThank you. Because one of the other things I wanted to point out about this particular statute and one of the dangers when they put it in is this statute, when we discussed reasonableness, the statute itself prescribes that a person is presumed to have used reasonable fear of imminent peril if they see the conditions that were described. Therefore, it's turning on its head. And affirmative defense is very different from giving...
NNAMDIWhat is an affirmative defense?
LABAHNAffirmative defense means that you can, once we get to court, bring forward the reasons and bring forward that defense that, yes, I did the killing. I shot this individual dead. But I shot that individual dead because I was in fear for myself or my family or my property. Instead, what this law does is give presumption to the defendant that he was or she was in that reasonable fear mirrored by the defendant's conduct or by the individual's conduct.
LABAHNIn this case, the victim's conduct to bring it to the Florida case, as has been reported. He saw what he thought was some -- him breaking into a home. He was in that carport. Therefore, this particular presumption allows the shooter to go ahead and kill.
NNAMDIWell, two questions about that.
EDDINSThat's not quite correct. Before we move on...
GUTMACHERYeah, it really isn't what the statute says. The statute gives a presumption only in the case of a dwelling or residence or an occupied vehicle. Other than that, there are no presumptions whatsoever. So, I don't know where you get the presumptions as to all these other situations. And certainly...
NNAMDIIt brings me to this.
GUTMACHER...in this particular case there's no presumptions whatsoever because he's not involved in a forcible entry into a residence and he's not involved in a forcible entry into an occupied vehicle.
NNAMDIWhich brings me to this...
GUTMACHERIt has no application whatsoever in this particular...
NNAMDIThe Miami Herald is reporting that the authors of the Stand Your Ground Law says that George Zimmerman should probably be arrested. He has no protection under my law, former Senator Durell Peaden told the Miami Herald. He said it is the fact that Zimmerman ignored the 911 operator's advice not to follow Martin. And so, former Senator Peaden says, that disqualifies him from claiming self-defense under the law.
NNAMDIQuoting here, "The guy lost his defense right then," Peaden told the Miami Herald when he said, "'I'm following him,' he lost his defense." Representative Dennis Baxley, Peaden's co-sponsor in the Florida House agrees with that, telling the newspaper that the law does not license neighborhood watch or others who feel like they have the authority to pursue and confront people. That is aggravating an incident right there. So, I'd like to hear all of your comments on that. Starting with you, David LaBahn.
LABAHNWell, that's why I bring up the things that I had said before. First, why is there a presumption in the statute? If it is reasonable, it should be a reasonable standard not presumption. Secondly, why do we have civil and criminal immunity? And third, which hasn't been brought up, not only is there civil and criminal immunity, this allows an individual, if they're charged, to go back and civilly sue the police, prosecutors and everyone else involved in the case. Those are extraordinary things. This statute is way over broad. And hence, you end up with problems like this.
EDDINSYeah. Let me remark that I do not agree that it's tied the hands of the prosecutors in the state of Florida just as I disagree somewhat with the defense lawyer that it has made very little change. In my view, what's occurred with the Stand Your Ground Law in Florida is that while it has made it more difficult and somewhat in certain cases for the State Attorney's Office to evaluate these cases and make a determination.
EDDINSWe have been able to effectively work within the law. The biggest problem that I see is that it has allowed this defense to be raised in cases where there was no justification for it. In addition, as the defense lawyer mentioned, the defendant is entitled to an evidentiary hearing and the judge then makes a determination whether or not the case should go forward and go before a jury. That has increased the workloads in some areas in the state of Florida fairly dramatically.
EDDINSAnd the State Attorney's Office in my area in the first circuit, while we've had several of these hearings, it has not been a major burden for my office. Now while I can't comment about the specific and choose not to about the specifics of the case in Central Florida, anytime you have a homicide and the state attorney has to evaluate whether or not crime charges should be filed, if there are no eyewitnesses, that makes it more difficult.
EDDINSThat's a major change for us as a result of this law. But even in those cases, and especially in those cases where there's no witness, it's important that you take a very thorough, detailed evaluation of the fact pattern. And it's important that you have all of the information before a decision is made. For example, matters such as the crime scene itself, the scene where the shooting occurred must be closely examined for physical evidence to see if it indicates one way or the other, any forensic evidence such as blood or other bodily fluids or any other forensic evidence obviously must be evaluated.
EDDINSIn addition, the relative physical capacities of the people involved in the confrontation, their backgrounds. While there are no direct evidence or direct witnesses, any indirect evidence of statements that they may have made, either of the people involved in the confrontation may have made earlier, must be examined.
EDDINSMany times the state attorney's office would need to go back and reexamine or re-interview witnesses that law enforcement has interviewed. I think it's important in all cases, not only this case but in all cases, to be very thorough and for the decision maker, in this case the state attorney Norm Wolfinger, to have all of the information and review it carefully and completely before decision regarding whether or not this crime -- the matter was justified, can be made.
NNAMDIJon Gutmacher, the author of the Stand Your Ground law saying that since he apparently was pursuing the suspicious person, that the law that they authored should not apply in this case.
GUTMACHERWell, that's not quite true because he's under no obligation not to follow somebody under the circumstances in this particular case. He didn't have a right to stop the individual. He didn't have a right to grab the individual, that all would've been a crime in and of itself. But just following the individual is not an illegal act. So he still falls within the definitions of the statute but probably not under Stand Your Ground. I mean, Stand Your Ground more than likely does not apply to this particular case in any manner, shape or form.
GUTMACHERAnd I'd just like to correct one other thing one of the gentlemen said. And that is that there is no right in this particular statute to sue the government. There's nothing about that whatsoever. So I don't know what he's reading, but it's certainly not from this statute as to a right to sue the government.
NNAMDIWell, let's find out what David LaBahn has been reading.
LABAHNYes, I always try to be prepare for these interviews. I'm quoting right out of the Florida statutes 776.032 and it says "The court shall award reasonable attorney's fees, court costs, compensation for loss of income, all expenses incurred by the defendant in the defense of any civil action brought by the plaintiff. If the court finds that the defendant is immune from prosecution as provided in subdivision one." So this has a very clear attorney's fees, court costs, even expenses in loss of income if someone is accused.
NNAMDIGot to take a short break. When we come back, we will continue this conversation on self defense and the Stand Your Ground law. If you have called, stay on the line, we will get to your call. The number is 800-433-8850. What would you do if you were confronted in a violent situation and you had a gun? What would you do if you were confronted in a violent situation and you had a gun and the other person was unarmed, 800-433-8850? I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation on self defense and the Stand Your Ground law. We're talking with Jon Gutmacher, he's a criminal defense lawyer based in Orlando. He's also author of "Florida Firearms: Law, Use and Ownership." William Eddins is state attorney for the first judicial district of Florida, that's the Pensacola area. He's also President of the Florida Prosecuting Attorney's Association. And joining us in studio is David LaBahn, President and CEO of the Association of Prosecuting Attorneys. Bill Eddins, as state attorney for the Pensacola area, have you seen an increase in the number of self defense cases in Northwest Florida?
NNAMDIOnto the telephones. Here is Nate in Washington, D.C. Nate, you're on the air. Go ahead, please.
NATEYeah, hi. I was wondering. I haven't heard or at least it hasn't been clear. Where is the burden of proof for the person who feels threatened? Because I could say I felt threatened and shoot anybody and walk away if this is the way the law is written. I'm sure that's not the intent. So it seems like, you know, to what one person is a threat to someone else, they may not bat an eye at. So what is the burden of proof and how's that determined?
NNAMDII'd like to read two emails that we got that are along the same line as Nate questions. One from Anne in Westminster, Md., says "I have visions of old west confrontations when two people carrying guns meet and both feel they are in mortal danger. Has anything like this ever happened?" And this email we got from Jennifer in Washington. "I read an NPR article online that said a problem with the Florida law has been that a three-year-old dies in the crossfire of two drug dealers and no one can be found at fault because the one who shot the child was defending from shots being fired at them. Has this really happened?" "If so, how has the law -- if so, has the law been controversial before?" I'll start with you David LaBahn.
LABAHNWell, that's why I brought up the issue of the presumption. If there was not a presumption here that the individual is in fear, the moment that it's in a home or a car or defending property or person, if those situations -- if that did not exist, now you'd be back to a reasonable standard. And if there's a reasonable standard without the immunity, civil and criminal immunity, that would be a very fair and reasonable law. But when you give the presumption to the defendant or the killer, that it was all right for them to shoot and you give them civil and criminal immunity, you end up with the problems that we have.
NNAMDIHow about the situation I just described, Jon Gutmacher.
GUTMACHERWhich situation is that?
NNAMDIThe last situation in which two -- well, the emailer says drug dealers, but in which somebody dies in a crossfire of two people and no one can be found at fault because the one who shot the child, it was...
GUTMACHERWell, if somebody dies in a crossfire, excuse me, if somebody dies in a crossfire by two individuals who are both breaking the law, drug dealers, both of them are going to be guilty...
NNAMDIWell, let's not say they're drug dealers, let's not...
GUTMACHER...of second degree murder or manslaughter.
NNAMDILet's not call them drug dealers. Let's call them two individuals who are having a confrontation and both of them pull guns and shoot at one another, what's that situation? And somebody gets killed in the crossfire.
GUTMACHERWell, if you're assuming that both of them are acting lawfully, I can't think of a situation where that would occur. If you're talking about a situation where one is acting unlawfully and the other is acting lawfully, then the person who's acting unlawfully, no matter who winds up having the shot that kills the innocent child and again I haven't heard of a case like this, that person is going to be guilty of second degree murder or manslaughter.
GUTMACHERThey're going to face a 25 year, minimum, mandatory prison sentence to life. So again...
GUTMACHER...you know, people dream up all sorts of stuff, but that doesn't apply to actual reality.
NNAMDIBill Eddins, is it more difficult for prosecutors to investigate these cases since the victim is actually dead? You mentioned all of the kinds of things that an investigator would have to do in a situation like this. Certainly sounds as if it's more difficult.
EDDINSYes, that's one of the practical problems that occurs as a result of the enactment of this statute. You have to be very, very thorough in your investigation. From the state attorney's standpoint, you have to do the things I mentioned earlier and you may very well have to re-interview witnesses that the law enforcement have previously interviewed, before they turned the case over to you.
EDDINSYou may have to go back and look at all the forensic evidence again, look at the autopsy report again. And it's important that you be very methodical and consider all the facts and circumstances before you make a final decision. And it does make some of these cases more difficult in terms of whether or not it's justifiable homicide or whether or not a crime has occurred.
NNAMDIJon Gutmacher, I do know you have to go but one last question. If these cases do reach the trial phase, what burden of proof must defendants show?
GUTMACHERWell, it depends if you're talking about the motion stage or you're talking about the actual trial stage. At the motion stage, it's the burden of the defendant to show by a preponderance of evidence that it was in fact lawful self defense. If you're talking about the trial stage where it goes to the jury, then the burden is on the prosecution to show beyond a reasonable doubt that the defendant is actually guilty of the crime and that the self defense did not apply. That's been the standard here in the United States for basically forever.
NNAMDIJon Gutmacher, thank you for joining us.
GUTMACHERSure, my pleasure.
NNAMDIJon Gutmacher is a criminal defense lawyer based in Orlando. He's also author of "Florida Firearms: Law, Use and Ownership." Back now to the telephone. Here is Roger in Washington, D.C. Roger, you're on the air. Go ahead, please.
ROGERYes. I have a question regarding the applicability of the law at all in this case. Somebody previously mentioned that they're surprised that the law is even being applied because it just doesn't have the elements to come under it. And I'm really wondering why the press and especially the police seem to have put out that, well, you know, the Stand Your Ground law means that we can't do anything to this guy. And it really is confusing as to why that perception is out there when it really just doesn't seem like the law applies at all.
NNAMDIBill Eddins, do we have any knowledge of whether or not the law is being applied or merely invoked?
EDDINSWell, in this case, I believe that before a decision, a valid proper decision, can be made it's necessary to do all of the things that I mentioned earlier including interviewing all witnesses, reviewing all evidence again, looking at the autopsy reports, the forensic evidence, the physical evidence, the 9-1-1 calls and so forth. And I know that Norm Wolfinger is a very thorough state attorney. He's been state attorney down there for over 20 years.
EDDINSAnd I feel certain he'll take a methodical, complete, detailed, thorough look at this before he makes a decision and even before he presents it to the grand jury, which he decided to do. But I just simply do not think a conclusion can be made. There's a lot of people all over American taking bits and pieces of the evidence and reaching a conclusion one way or the other. And I just think it can't be done properly without all of the facts.
NNAMDIWell, the reason we're having this discussion right now, David LaBahn, is because the law has been, if not implied, invoked.
LABAHNYes, that's exactly what has occurred in this case. I'm going to completely agree with the State Attorney Eddins. I, too, spent 10 years as a trial prosecutor. I was involved in investigation prosecuting numerous homicide cases. Prosecutors need to slow down and do a very methodical and good job. And we know in this case it's going to the grand jury. The other however is, we know it was invoked because we know that the killer in this case had been handcuffed and was released from custody.
LABAHNThat's pursuant to the Stand Your Ground law. And further, the question on this and does it apply, clearly 776.013 which is the Stand Your Ground, number three is right on point here. At the point of the confrontation in this case, he had -- he, meaning the shooter, the killer, had no duty to retreat. And we know from the facts of the case that the killer had a bloody nose and something on the back of his head. So therefore, no duty to retreat, he used the firearm, he took a life. The other thing I want to bring in the conversation, is prior to coming here, I did a Lexus search. I went and checked, has this law been applied?
LABAHNAnd there are 22 different cases that 776.013 has been invoked, the Stand Your Ground law since it was enacted in 2005. The Florida prosecutors, while they've been able to apply it, there have been -- and it's more cases reported where indictments were dismissed, where cases were reversed, murder cases because of the applicability of Stand Your Ground. So it definitely has made the prosecutor's job much more difficult.
NNAMDIBill Eddins, before I get back to the telephones. Can you give an example of a time in your view that this law was used judiciously?
EDDINSYes, I can. In our circuit we had a defendant that was charged with a felony battery for attacking a customer in a commercial store. He invoked the Stand Your Ground defense. We had a lengthy pre-trial hearing. The judge ruled that he had not met his burden of proving beyond a -- by a preponderance of evidence, that it applied and allowed the case to go to the jury. Whereas the defense lawyers said, we then had the burden of proving guilt beyond and to the exclusion of ever reasonable doubt which we were able to successfully do. And so in general, we've been able to effectively and efficiently prosecute our cases as we -- pretty much as we did before but the work load issue and the fact that it complicates our job is the main impact I've seen here.
EDDINSNow, in other areas of Florida, the defendants have been somewhat more -- in some of the areas, they've been somewhat more aggressive, have raised this issue more often and there have been instances as Mr. LaBahn mentioned, where cases were thrown out or cases were even reversed based on the Stand Your Ground law.
NNAMDIDavid, what do you hear from prosecutors in states where those laws have been enacted? Are they able to move forward with these cases?
LABAHNI believe that the states attorney has laid it out very well and that's consistent with other areas, is that it has made it much more difficult on the prosecutors' offices. It's made it more difficult on the police to investigate. In some situations, there have been success, in other situations there have not. It is very frustrating to -- if you get a case to court, then end up with a defense that -- and let's assume that this is a well meaning law, I'm going to say it's a well meaning and good intended law.
LABAHNHowever when you get involved in gang violence, drug violence or as was discussed, the death of a small child, that is not where this is supposed to be applied and should the resources of the prosecutors and investigators be out there trying to determine the Stand Your Ground law or should they be investigating what actually occurred?
NNAMDIWe're discussing Stand Your Ground laws, the law that has been invoked in the case of the shooting of Trayvon Martin in Sanford, Fla., by George Zimmerman. And inviting your calls at 800-433-8850. Would you feel more or less safe in a state with Stand Your Ground style laws, 800-433-8850? Let's move onto Steve in Rockville, Md. Steve, you're on the air. Go ahead, please.
STEVEThank you. If the boy was shot in the back, I don't see how he could be considered a threat. If he was shot in the front, then I think it's possible that he was a threat. Please comment on that.
NNAMDIIt is my understanding that he was shot in the chest. But is it that simple, Bill Eddins?
EDDINSWell, I don't believe that it is. I believe that, as I've stated earlier, it's important to review all aspects of this matter in great detail before a final determination is made including the physical evidence, the forensic evidence, the autopsy report, statements of any indirect witnesses such as people that the combatants have talked to before this confrontation occurred as well as any 9-1-1 calls that exist.
EDDINSAs well as the relative capabilities of the combatants, as well as their backgrounds and that's not an exhausted list and it's not intended to be all the matters that need to be reviewed. And all of those matters should be presented to a grand jury if Mr. Wolfinger chooses to do so and he's indicated that's what he's going to do. And allow them to make a decision regarding whether a charge should be made or not.
NNAMDIGot this email from Donna, David. Donna says "State the elephant in the room. Does not this law increase racial profiling?"
LABAHNI don't know that I can go so far as to say it increases or it has anything to do with racial profiling. Racial profiling is usually a term that's used toward law enforcement. I will however quote something that I was involved in publishing, back in 2007. We looked at this law in 2007 and had a number of public health concerns. One of our public health concerns that we published, at that time, this is not today, it's up on my website, by all means look it, is the concern of the disproportionate negative effect on minorities, persons from lower socioeconomic status and young adults or juveniles.
LABAHNJust as we felt at that time, I continue to be there today. If you look at this statute, they excluded police officers. You can't use Stand Your Ground to kill a police officer who's performing his duty. In the same way, they could have done the same for juveniles.
NNAMDIOnto Catherine in Burke, Va. Catherine, you're on the air. Go ahead, please. Catherine, you need to turn your radio down and speak just directly into the phone.
CATHERINEHi there. Thank you for putting me on the air. My question is about the type of force that's being used when this law is applied. If the shooter, in this case was Trayvon, had a bloody nose and injury to the back of his head that doesn't sound as though he was in mortal danger. So is it appropriate for him to use deadly force in response to whatever was done to him?
EDDINSIt probably, under those circumstances, not saying that those are the actual circumstances that existed here, but it probably would not be. In order to use the defense a person must feel that it's necessary for him to use the deadly force to prevent imminent death, great bodily harm or imminent commission of a forcible felony. The facts you've described probably do not rise to that level and probably would not invoke the Stand Your Ground defense, under our Florida statute.
NNAMDIGotta take another short break. David LaBahn, can you stay with us?
NNAMDIHow about you, William Eddins?
NNAMDIHow about another 10 minutes or so?
NNAMDIWe're gonna take that short break. If you have called 800-433-8850, stay on the line we will get to your call. We're discussing self-defense and the Stand Your Ground laws around the country in general and in Florida in particular. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation on self-defense and the Stand Your Ground laws. We're talking with William Eddins. He is state attorney for the First Judicial Circuit of Florida, the Pensacola area. He's also president of the Florida Prosecuting Attorneys Association. And David LaBahn is president and CEO of the Association of Prosecuting Attorneys. David, are we seeing more self-defense claims nationwide?
LABAHNWe are, especially in those states that have passed -- and as we've discussed there are now 32 states that have various forms of this Stand Your Ground. Those states have been impacted. I saw Bill's quote earlier as it related to Florida. Florida going to 33 cases per year instead of 12 or maybe it was FDLE that gave those numbers, but Florida is not the exception. Florida is one of the first and has one of the most expansive of the Stand Your Ground laws, but they're certainly not the exception. The same is going on in Georgia and other states as well.
NNAMDILet's back up for a second and talk about why these laws were enacted in the first place. What prompted the passage of these sweeping Stand-Your-Ground style laws? Was there a particular case where someone ended up behind bars after justifiably defending themselves?
LABAHNI am glad that you asked that question because I came to this current position or I've had ten-and-five life. Ten years as a trial prosecutor, handling all these serious violations. Ten years, including being the executive director of the California District Attorney Association and five years now here in Washington. In 2005 when this statute was passed in Florida it also came to the California legislature. That was the question that I was able to ask, is why is it here? What is the problem? Are there people behind bars that don't deserve it?
LABAHNAnd, at least as it related to California -- California's one of those states that did not pass it. When you pass legislation that is not attached to a problem, you end up with unintended consequences. That's why I feel so strongly and that's what is happening to those states that have passed this law.
NNAMDIBill Eddins, was there any specific incident that led to the passing of this Stand Your Ground law in Florida?
EDDINSI’m not certain, but I believe there may have been an incident where an intruder was killed and it was the decision about whether that was justifiable or excusable or whether or not a crime had occurred was not made for several months. And one of the legislators got impatient because of that and they decided for some reason to pass this law. Other than that, I'm really not sure.
NNAMDIWe got to…
EDDINSI will say…
EDDINSI will say that in Florida many times legislation is presented to the legislature as a result of some particularly heinous or a bad crime that occurred. I’m not aware of one in this instance, though.
NNAMDIWe got a email from Steven, David, who says, "As I understand it this law was drafted and presented by the American Legislative Affairs (sic) Council, ALEC, which is founded by Charles and David Koch and that it was fiercely lobbied for by the NRA." You know anything about that at all?
LABAHNI do not. I know that at least in the CNN press reports the NRA was quoted. I do not know the funding behind it. I actually have the bill with me, but it does not say who was the proponent and whether or not there was any funded lobbying.
NNAMDIHere is Mokolo in Washington, D.C. Mokolo, you're on the air. Go ahead, please.
MOKOLOHi, Kojo. Just wanted to ask the guests, has there ever been a successful defense of this law by an African-American accused of shooting someone white? And also, if the situation was reversed, if Mr. Zimmerman had have been killed, do you think we'd be having this discussion about (word?) Martin not having been arrested?
NNAMDIWell, the last one is so speculative that I'm gonna have David try to answer the first question first. Has there ever in your knowledge been a situation where this defense was successfully invoked when an African-American shot a white person?
LABAHNI do not know the answer to that question. I came here prepared with the different cases in Florida by case names as to those that have killed individuals and not been charged or had their murder case dismissed. Unfortunately, that does not contain the racial information of those involved.
NNAMDIDo you know anything about the racial information of those involved, Bill Eddins?
EDDINSNo, I do not. I'm sorry.
NNAMDIOkay. And, Mokolo, thank you very much for your call. Sorry we couldn't answer that. One of the major controversies surrounding this law is that -- well, a common criticism is that potentially allows people to provoke a confrontation, then shoot to kill. Has this been a common scenario in any of the cases we've seen since this law has been passed? Well, first, that part of the question to you, Bill Eddins.
EDDINSI'm not aware of any such situation as that in the First Circuit or in the state of Florida. There may have been in other areas. I'm certain that we have not had that situation in the First Circuit where I'm the state attorney.
NNAMDIKnow anything about any situation like that, David LeBahn?
LABAHNLet's quote one of the Florida cases that this law has been applied in its published decision. It's Stieh versus State, S-T-I-E-H. That says a judgment of acquittal because the defendant presented a prima facie case of self-defense under the Florida statute and the state of Florida failed to prove beyond reasonable doubt the defendant did not act in self-defense when the stabbing victim initiated a physical confrontation with the defendant's friend in the defendant's hotel room. And the victim also engaged in a physical confrontation with the defendant when the defendant was trying to defend defendant's friends. Moreover, the hotel room which the defendant was renting qualified it as a dwelling or a residence.
LABAHNSo here's a situation where there's definitely a fight or a quarrel going on and ultimately a stabbing that is not a murder case. Not yet, not a murder case.
NNAMDISo there was no prosecution?
NNAMDIOnto Christina in Baltimore, Md. Christina, you're on the air. Go ahead, please.
CHRISTINAHi, actually I used to live in Pensacola. And so I’m wondering, the Stand Your Ground law and we also similarly in Virginia there's a concealed carry law. First of all, what is the usefulness of these laws? What is their utility? And also, are the people who get such permits, are they required to go through any sort of training to understand the limitations of these permits?
NNAMDIWell, I don't know what permit you're talking about?
CHRISTINAThe Stand Your Ground law, I guess, I suppose that's just a law that if you happen to have a gun, but I would assume that you would have to have a permit to carry a gun.
CHRISTINAAnd then, I mean, there's no one there from Virginia, but we do have a Virginia law that says that you can apply for a concealed carry permit to carry a handgun.
NNAMDIAnd you should know that a federal judge in Maryland ruled that state residents there no longer must show they have a good reason to carry a handgun outside their home, declaring a key provision of the state's gun control laws unconstitutional. Gun rights advocates said that opinion, in a relatively liberal state with some of the countries tightest gun restrictions, would help as they challenge some of the laws in about half a dozen states. Maryland officials said they're seeking a stay and will appeal the decision. But…
CHRISTINAI hope they win 'cause otherwise I'll be moving.
NNAMDIYou'll be moving out of the state of Maryland if they don't win in this situation?
CHRISTINAYes. That's why I didn't move to Virginia.
NNAMDIWhat is your understanding, Bill Eddins, of the utility of this law?
EDDINSOf the Stand Your Ground law?
EDDINSWell, I think overall the intention of the legislature was good. And it's helped in some instances give the general public a feeling of protection. However there have been unintended consequences, in my opinion, in Florida, just as the other gentleman indicated. And as a result I believe that defendants are using or are attempting to use this defense in instances where it does not apply. And their attempting to generate a defense, so to speak. And that has complicated my office work and the work of other prosecutors in Florida and I'm sure throughout the nation.
NNAMDIThank you very much for your call, Christina. What is the standard for a police officer, say in Florida, if he or she is accused of wrongfully using his or her weapon while on duty? Does that police officer receive blanket immunity or is it qualified in some way? I think you indicated earlier, David, that it is qualified.
LABAHNThat was exactly what I stated. And that's why I said this law is so extraordinary to give blanket immunity to a shooter or a killer. Even a police officer in Florida is only given qualified immunity, meaning he or she must show that that use of force was reasonable and it was in the duty and course and scope of their employment. That is why this is such an extraordinary statute and such a dangerous statute, as State's Attorney Eddins pointed out about the unintended consequences.
NNAMDIOnto Lee, in Accokeek, Md. Lee, you're on the air. Go ahead, please.
LEEThank you for this program. I have been following this subject for 18 years. Extraordinary book, "No Duty to Retreat" came out, which is on Amazon, by the way, in many formats. My comment is if we have passed these regrettable laws creating, out of statute, not common law, but out of statute a Stand-Your-Ground mentality I think we need, at least for these -- to introduce laws that create a privilege to retreat. It's heartbreaking. The young man's girlfriend told him to run away. And he said, no, I'll walk fast. In his last moments he was juggling what would get him a worse result.
LEEAnd if there was a companion law and he had privilege to retreat, the case would be quite clear.
NNAMDIWhy do you say privilege to retreat as opposed to right to retreat?
LEEWell, it's a play on words, but because it got me to thinking we treat it as -- turn everything upside down. They treat it as if running away is a privilege rather than a right. So I thought…
LEE…maybe by using that expression I could check somebody's head a little bit.
NNAMDIThank you. I do understand what you are saying. David LeBahn, prior to Stand Your Ground laws it is my understanding that the policy was if confronted in a situation where somebody places you in a situation that threatens your life, you would be well advised to retreat.
LABAHNThe Stand Your Ground is a creature, as was just talked about, of the legislature. And so it depends on where you're at. We're here in the District of Columbia. That is the rule in the District of Columbia, is retreat unless, you know, there is no other opportunity.
NNAMDIWhat are the legal standards for self-defense in Maryland and Virginia?
LABAHNMaryland and Virginia will allow you to defend yourself. They are self-defense states. So therefore, if somebody's in your residence you may use force against them.
NNAMDIHow about on the street?
LABAHNOn the street, Maryland has started to move in the direction of the Stand Your Ground states.
NNAMDIOf the legislation I just mentioned, yes.
LABAHNYes. But, you know, I'm not comfortable to say they're a full Stand Your Ground state where Virginia has not changed. Virginia has stayed with the more common law defense. And that's the one that doesn’t have the privileges. The other thing I'd like to interject is because this was created by the legislature and join all the comments of the State's Attorney, this can be narrowed and made to be a more appropriate law.
NNAMDIOnto Danielle in Annapolis, Md. Danielle, you're on the air. Go ahead, please.
DANIELLEOh, thank you. It seems to me that Trayvon was actually the one who had the right to stand his ground. And I don't understand why the police has given the victim no value here. And that the only value is given to the person with the gun 'cause he prevailed in this altercation.
NNAMDII don't know, but Bill Eddins you talked about the State's Attorney's investigation. Do you have any view at all of the police investigation, as it has been reported so far?
EDDINSNo, I really don't. I think that it's impossible to fully and completely evaluate the actions of the police until we know all of the facts and I mean all of them. And there's been a very thorough review of them and presentation to a Grand Jury. I just don't see that we can reach a conclusion. And it's a nationwide phenomenon. The general public is reaching a conclusion based on snippets of information that may point in one direction or the other. And I think that while it's a healthy discussion to have a discussion about these Stand Your Ground laws and it's a healthy discussion for the general public to engage in, I think that it's better to wait until all of the information is in and has been presented to the Grand Jury.
EDDINSAs, you know, the Grand Jury is a cross section of the community where this occurred. And if all the information is presented to them, I believe that the general public should have a lot of confidence in the fact that they'll make the right (word?) .
NNAMDII'm afraid that's all the time we have. William Eddins, thank you for staying with us. He's state's attorney for the First Judicial Circuit Court of Georgia and President of the Florida Prosecuting Attorneys Association. Thank you for joining us.
EDDINSThank you very much.
NNAMDIDavid LeBahn is president and CEO of the Association of Prosecuting Attorneys. I guess we'll just have to wait and see what happens in this situation, David.
LABAHNYes. Thank you, sir.
NNAMDIDavid LeBahn, thank you so much for joining us.
NNAMDII’m Kojo Nnamdi.
NNAMDI"The Kojo Nnamdi Show" is produced by Brendan Sweeney, Michael Martinez, Ingalisa Schrobsdorff and Tayla Burney with help from Kathy Goldgeier and Elizabeth Weinstein. The managing producer is Diane Vogel. The engineers are Andrew Chadwick, Timmy Olmstead, and Kellan Quigley. A.C. Valdez is on the phones. Podcasts of all shows, audio archives, CDs and free transcripts are available at our website kojoshow.org. To share questions or comments with us, email email@example.com, join us on Facebook, or send a tweet @kojoshow. Thank you all for listening. I'm Kojo Nnamdi.
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