Lithwick: Shoot first, ask questions later
CHARLOTTESVILLE, Va. Ever since George Zimmerman gunned down Trayvon Martin in his Sanford, Fla., gated community, it's become an article of faith that the rash of lethal shootings in public places from the Florida moviegoer who was killed after a texting and popcorn-throwing incident to Jordan Davis, shot in his car at a Jacksonville, Fla., gas station to last week's lethal shooting in an Arizona Walmart is attributable to the "stand your ground" laws enacted over the past decade in 26 states across the country. Aggressive human interaction, post-Trayvon, now follows a painfully familiar pattern: An altercation occurs. Someone says he feared for his life. An unarmed victim (often young, black, and male) is shot and killed. The headlines either explicitly or implicitly invoke "stand your ground."
Last week, Kriston Charles Belinte Chee, an unarmed man, got into a fight with Cyle Wayne Quadlin at a Walmart in suburban Arizona. Quadlin opened fire midargument and killed Chee. Officers decided not to charge Quadlin because, they concluded, the killing was in self-defense. According to the police spokesman, "Mr. Quadlin was losing the fight and indicated he 'was in fear for his life.' " Just a week earlier, a jury in Jacksonville, Fla., found Michael Dunn guilty on four counts of attempted murder but did not convict him on the most serious charge of first-degree murder, in the death of 17-year-old Jordan Davis. Dunn shot and killed Davis, also unarmed, because the music coming from his car was too loud. Dunn claimed he saw something like a gun in the vehicle, and that was apparently enough for some members of the jury to conclude that Dunn hadn't committed first-degree murder.
Given all this, it's not unreasonable to argue that, in America, you can be shot and killed, without consequences for the shooter, for playing loud music, wearing a hoodie, or shopping at a Walmart. The question is whether the wave of "stand your ground" legislation is to blame.
Let's first define terms: "Stand your ground" laws are different from the Castle Doctrine, which has its roots in centuries-old British common law and allows you to use force to protect yourself in your home. "Stand your ground" essentially provides that you can bring your castle wherever you go. The rule allows you to shoot first, not just in your home, but anyplace you have a right to be and is a much newer, and more controversial, proposition. (The first "stand your ground" law was enacted in Florida in 2005.) Historically, United States self-defense laws have followed British common law by imposing a duty to retreat, requiring those in a dangerous situation to try to withdraw (if they could do so safely) before resorting to killing. (Under the Castle Doctrine there is no duty to retreat because you're already home, in your safe haven.) "Stand your ground" by design cancels out the duty to retreat and, in sum, allows you to shoot first if you feel your life is in danger, just like you can do at home. The relevant language in Florida's self-defense statute provides just that: "A person is justified in the use of deadly force and does not have a duty to retreat if: He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself."
Legal purists on both sides of the gun debate argue that neither Zimmerman nor Dunn even invoked the "stand your ground" defense in their cases. In their view, the doctrine has been unfairly blamed. Dan Abrams argues that "neither defendant invoked the controversial aspects of Florida's law. In fact, both defendants argued basic self defense law that would have been similar in just about every state in the nation." David Kopel similarly points out that "the assertion that Stand Your Ground may have been a reason why the [Dunn] jury hung on the first degree murder charge is totally implausible. The three convictions for second-degree murder show that the jury had determined there was no self-defense; ergo, jury confusion about self-defense was not the reason why the jury deadlocked on first-degree murder."
But Nicole Flatow at ThinkProgress contends that "stand your ground" had everything to do with both cases. As she writes, "Dunn's lawyer Cory Strolla cited Florida's Stand Your Ground law in his closing argument: 'His honor will further tell you that if Michael Dunn was in a public place where he had a legal right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force.'" Moreover, in both the Zimmerman and Dunn trials, the provision was included in the jury instructions. (Some say that this is immaterial because jurors are often read instructions that do not apply to the case before them. But do jurors know that?)
It's clear that at least some of the jurors in both cases took the principle of "stand your ground" into account to some degree during deliberations. We now know that at least one juror, and possibly two, in Dunn's trial took to heart the specific instruction that Dunn "had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force." Whether or not jurors in Florida are technically instructed to apply the "stand your ground" component of self-defense law, it's increasingly clear that they are, at minimum, confused about it (understandably) and may even be starting to apply it reflexively. Yes, Dunn's attorney argued traditional self-defense. But, as former assistant U.S. attorney David Weinstein told the Associated Press, "I think people will say that because some of the language from the stand your ground statute gets embedded into the jury instructions, that stand your ground has an effect."
I might go further. I might say that whether or not specific jurisdictions define self-defense to include a duty to retreat, and whether or not specific juries are charged to apply it, America is quickly becoming one big "stand your ground" state, as a matter of culture if not the letter of the law.
The fact that "stand your ground" defenses have been staggeringly successful in Florida in recent years (one study shows it's been invoked more than 200 times since being enacted in 2005 and used successfully in 70 percent of the cases) suggests that it's been embedded into more than just jury instructions. Perhaps unsurprisingly, a Tampa Bay Times study from 2012 shows that "as 'stand your ground' claims have increased, so too has the number of Floridians with guns. Concealed weapons permits now stand at 1.1 million, three times as many as in 2005 when the law was passed." Put bluntly: As Floridians sense that other Floridians plan to shoot first, they buy more guns. Think about it: The National Rifle Association that has pushed so hard for "stand your ground" laws in recent years is the same National Rifle Association that has put so many guns, and such lethal guns, in so many hands concealed carry, open carry, wave-it-around-and-call-it-free-speech carry. The gun lobby has single-handedly made certain that the very definition of what one might reasonably expect from an altercation at a Walmart, a movie theater or a gas station has changed. By seeking to arm everyone in America, the NRA has in fact changed our reasonable expectation of how fights will end, into a self-fulfilling prophecy about how fights will end. It should surprise you not at all to learn that of the 10 states with the most lenient gun laws in America, seven support "stand your ground." In those jurisdictions shooting first isn't merely "reasonable." It borders on sensible.
And it's not just cultural expectations that are shifting. We're also shifting what we ask of our jurors. Under "stand your ground," we are asking jurors to impose a subjective test about whether the shooter was experiencing a profound moment of panic. We are asking them whether in a country seemingly full of people who are both armed and terrified that everyone else is armed shooting first makes sense. By redirecting jurors to contemplate whether people who are armed and ready to kill are thinking reasonably about others they believe to be armed and ready to kill, we have created a framework in which one's subjective fears about the world are all that matters. Or as the father of one victim explained to The Washington Post, "Somehow, we've reached the point where the shooter's word is the law."
Every time we hear about a Zimmerman, a Dunn, or a Cyle Wayne Quadlin, we get a little bit closer to believing that we need to become a Zimmerman, a Dunn, or a Cyle Wayne Quadlin merely to protect ourselves. And then it gets a little bit easier for us to relate to, and to believe, the next Zimmerman, Dunn, or Cyle Wayne Quadlin. It's a perfect loop of logic. We define the reasonableness of a lethal response by the growing number of lethal responders. "Stand your ground" laws, or at least the public conception of what they do, are changing the way the rest of us think about self-protection. This is, of course, exactly the world the NRA dreams of constructing: Everyone armed and paranoid that everyone else is armed. But the old canard that an armed society is a polite society is pretty much bunk. Ours is not a polite society; we are rude and hotheaded and terrified. Now we have guns to help us sort it all out.
And this is not just in Florida. We are quickly becoming a nation that would rather shoot than stand down, or at least one that thinks everyone has the right to. We are a nation of jurors who carefully consider the emotional state of a killer who had no obligation to even investigate the emotional state of the person he believed was attempting to kill him. We are a nation whose courts and legislatures have enshrined the American values of individualism, property rights and mistrust of the state while eroding our duty to retreat.
After Trayvon Martin was killed, for a long time it was fashionable to say, "I am Trayvon Martin," in solidarity with him and his family. But a far more worrisome possibility has begun to creep into our culture. With each successful "stand your ground" claim, explicit or implicit, we are all in peril of becoming more frightened, more violent and more apt to shoot first and justify it later. The only thing more terrifying than the prospect of becoming a nation of Trayvon Martins is the possibility that we are unconsciously morphing into a nation of George Zimmermans.
See more about comments here.