OPED: Stand Your Ground law next on trial

mcaputo@MiamiHerald.comJuly 14, 2013 

George Zimmerman is not guilty. Trayvon Martin is dead.

Now Florida’s Stand Your Ground law is back on trial in the court of public opinion.

Count on a hung jury.

There’s just too much raw, partisan emotion surrounding too many intractable issues (guns, crime, race) for any major consensus.

And if the Florida Legislature actually reviews any legislation that makes the case to change the self-defense law, an acquittal is likely.

Republicans control the lawmaking body that passed the NRA-drafted law. They’re not just the defense in this case. They’re the judge and jury in Tallahassee. And polls have shown Florida voters approve of Stand Your Ground, which had a role in the Zimmerman case from start to finish.

Less than a half hour after the jury’s verdict Saturday night, the Florida Senate’s Democratic leader, Fort Lauderdale’s Chris Smith, called for a reexamination of all self-defense laws.

“The fact that a child is dead and an armed man can now walk free without so much as a backward glance sends the wrong message to Florida and its citizens,” Smith said in a written statement.

Smith, who convened a task force last year to review Stand Your Ground, said Florida’s self-defense laws are too “fuzzily defined and broadly drawn” to make clear who can use deadly force and when.

“If someone makes the claim of self defense and the only other witness to the confrontation is dead,” Smith said, “there needs to be a higher standard for proving that the use of deadly force was justified.”

But state Sen. Dennis Baxley, an Ocala Republican who sponsored the legislation that passed in 2005, last year said he wanted to hold off on considering changes until the trial was over. And now he’s more certain than ever that Stand Your Ground is a good law.

The murder and violent-crime rates have been falling for years in Florida, which has more than 1.1 million concealed-weapon permit holders. (But the raw numbers of murders have held about the same, 1,006 last year.)

“People want to use this case for their political platform,” Baxley said. “But really, the prosecution didn’t prove its case. It wasn’t Stand Your Ground. The case came down to basic self defense: me or thee.”

However, Stand Your Ground language, which specifically removed a citizen’s “duty to retreat” in most public confrontations, appeared in the Zimmerman jury’s instructions, which said:

“If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.”

Sen. Smith’s predecessor, Miami Beach’s Dan Gelber, was a leading critic of Stand Your Ground in 2005 and noted Sunday on his blog that the Zimmerman jurors would have had far different instructions under the old law, which said:

“The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force…The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force. “

Since the jurors have decided to remain anonymous, it’s impossible to know how much Stand Your Ground affected their decision.

The law certainly played a key role early on in the case. Police didn’t arrest and prosecutors didn’t initially charge Zimmerman as a result of the law, which can give a killer immunity to prosecution.

But it’s not a carte blanche to pick fights and then shoot, stab or bludgeon an opponent.

Just after the Stand Your Ground section of Florida statute (776.013) is 776.041, “Use of force by aggressor,” which generally forbids self defense claims if a person “initially provokes the use of force against himself or herself.”

Was Zimmerman an aggressor?

Only one person knows: Zimmerman. The other witness, the unarmed teen, was shot dead.

Compare that case to Marissa Alexander’s. She fired a warning shot at her estranged husband in a dispute. He testified against her. That helped secure her 20-year prison sentence in May 2012.

Just a month earlier, the same prosecutor in Alexander’s case, Angela Corey, brought charges against Zimmerman, who opted not to seek immunity from prosecution under Stand Your Ground.

But hundreds more have.

In the Panhandle town of Port St. Joe, a man named Walt Butler is seeking immunity from prosecution for shooting and killing Everett Gant, a black man who confronted the white suspect at his home for allegedly using racial slurs to describe a child at their apartment complex.

Butler shot Gant between the eyes with a .22 caliber rifle, called 911 and then finished making his dinner, according to The Star, which reports that a deputy said he found Butler eating supper and acting “inconvenienced” with his arrest because he “had only shot a (racial slur).”

Butler’s Thursday court hearing has been rescheduled until September.

Cases like this are sure to fuel the toxic racial politics that now imbue Stand Your Ground due to the Zimmerman case.

But that’s partly because of the racial disparities that already exist in the justice system as a whole — in Florida, 48 percent of prison inmates are black, though African-Americans account for less than 17 percent of the total population.

Blacks are more likely to commit crimes against each other than against whites, but they’re probably more likely to be racially profiled — although hard profiling data is lacking because black legislators years ago stopped trying to require the state to compile statistics.

Lawmakers have also resisted requiring better reporting for Stand Your Ground, so the Tampa Bay Times last year conducted the first-ever statewide analysis of the law in 200 known cases.

“People who killed a black person walked free 73 percent of the time, while those who killed a white person went free 59 percent of the time,” the paper reported.

But a closer look at the 200 cases strips away much of the appearance of racism. The black victims were more likely to be armed and committing crimes. Also, four out of five blacks who killed a white person went free, while five out of six whites who killed a black person went free, the newspaper reported.

Beyond race, the Zimmerman case reflected a partisan divide as well.

Republicans, largely white, generally want more gun rights and seemed to side more with Zimmerman. Democrats, an increasingly minority-heavy party, favor more gun control and expressed far less sympathy for Trayvon’s shooter.

That’s a recipe for inaction and strife. In the point-scoring games of politics, one sign of winning is never having to say your law was a little sorry.

Stand Your Ground is likely to stand as is.

Many Stand Your Ground cases show how courts and cops have struggled to interpret it. The law has likely spared some innocent people from prosecution, but in other higher profile cases, apparent criminals involved in public shootouts from Miami to Tallahassee have gone free.

“I don’t understand some of these cases. These mystify me,” Baxley said.

Is he interested in clarifying the law to provide judges more guidance?

“Anytime we’re in session, someone can file legislation,” he said. “We’ll have to examine their merit.”

In non-legislative parlance, here’s what that means: Case closed. At least for now.

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