Written Testimony of the Law Center to Prevent Gun Violence Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights “Stand Your Ground” Laws: Civil Rights and Public Safety Implications of the Expanded Use of Deadly Force September 17, 2013
The Law Center to Prevent Gun Violence (“the Law Center”) is pleased to provide this written testimony to the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights for its September 17, 2013 hearing, “Stand Your Ground” Laws: Civil Rights and Public Safety Implications of the Expanded Use of Deadly Force. The Law Center was formed by lawyers, originally as Legal Community Against Violence, in response to a horrific assault weapons massacre at a law firm at 101 California Street in San Francisco in 1993. After mobilizing the Bay Area legal community to support enactment of the 1994 federal assault weapons ban, the Law Center began concentrating its efforts on state and local gun laws. The Law Center currently provides free assistance to state and local governments seeking to adopt or defend laws to reduce the more than 100,000 gun-related deaths and injuries that devastate American communities each year nationwide. As set forth below, so-called “stand your ground” laws significantly threaten public safety because they frustrate the ability of law enforcement to prosecute criminals, encourage vigilante behavior, and deprive victims of remedies. Because such laws are most dangerous when coupled with weak laws governing the carrying of concealed weapons in public, Congress should avoid enacting any new federal legislation that would force states to recognize concealed weapons permits issued in other states.
FLORIDA’S “STAND YOUR GROUND” LAW AND ITS DEADLY CONSEQUENCES In 2005, the State of Florida adopted its now infamous “stand your ground” law (also known as a “shoot first” law) despite widespread public opposition. The statute, which was promoted by the National Rifle Association as part of its ongoing efforts to weaken gun laws across America, radically expanded the circumstances under which an individual claiming self-defense could avoid criminal and civil liability for the use of deadly force in public. Under traditional legal principles – which have been in effect in America for centuries – people have the right to defend themselves through the use of deadly force in the home, and outside the home if their safety is threatened and they cannot escape the situation. The Florida law, however, dramatically departed from these well-established legal principals by allowing a person to use deadly force in a public place in self-defense, even if such force could be avoided by the person’s retreat. The Florida law contains other dangerous provisions. First, law enforcement agencies are prevented under the statute from arresting a person who claims the use of deadly force in selfdefense without probable cause that the force used was unlawful. Second, the law may be invoked by: 1) a criminal defendant in a pretrial hearing and/or at trial to avoid all criminal liability; and 2) a defendant in a civil lawsuit at any time during the proceedings to avoid all civil liability. The Florida statute gained national notoriety in 2012 after George Zimmerman shot and killed 17-year-old Trayvon Martin as the unarmed teen walked home from a nearby 7-Eleven in Sanford. The facts are well known. Zimmerman, a neighborhood watch volunteer, had told police in a 911 call from his car that Trayvon looked “real suspicious” because he was “just walking around looking about.” Zimmerman had been issued a state license to carry a concealed weapon - even though he had been previously arrested for battering a law enforcement officer and had been the subject of a domestic violence restraining order - and was carrying a hidden, loaded handgun. Zimmerman pursued Trayvon, despite the 911 dispatcher’s statement that Zimmerman did not need to do so, ultimately shooting and killing the teen. Zimmerman claimed that he was acting in self-defense and sought cover under Florida’s shoot first law. In response to a national outcry when the Sanford Police Department initially failed to 2
charge Zimmerman with any crime, the Department finally charged him with second-degree murder on April 11, 2012. On July 13, 2013, a jury found Zimmerman not guilty. The jury had received instructions from the court on Florida’s stand your ground law and one of the jurors subsequently stated that the jury had found the law applicable to Zimmerman. The Trayvon Martin case demonstrates that shoot first laws significantly threaten public safety, encouraging people to take the law into their own hands and act as armed vigilantes, often with deadly consequences. Shoot first laws also have a profound impact on the criminal and civil justice systems, tying the hands of law enforcement and depriving victims of remedies by providing blanket immunity from criminal prosecution and civil lawsuits to individuals who claim they were acting in self-defense. The Tampa Bay Times has analyzed the Florida law extensively and documented its deadly impact. The Times’ 2010 investigation found that the Florida law had been invoked in at least 93 criminal cases involving 65 deaths, including “deadly neighbor arguments, bar brawls, road rage - even a gang shoot-out - that just as easily might have ended with someone walking away.” A follow-up investigation in March of 2012 increased the total number of cases in Florida to 130, finding that “[i]n the majority of the cases, the person who plunged the knife or swung the bat or pulled the trigger did not face a trial. In 50 of the cases, the person who used force was never charged with a crime.” That investigation also found that “justifiable homicides” reported to the Florida Department of Law Enforcement had increased threefold since the law went into effect. Another Tampa Bay Times report, released June 1, 2012, found that Florida’s shoot first law had “stymied prosecutors and confused judges,” and been used “to free killers and violent attackers whose self-defense claims seem questionable at best.” That report found that nearly 70 percent of those who had invoked the law had gone free. The Tampa Bay Times continues to evaluate “Shoot First” cases. As of August 10, 2013, the newspaper had identified over 200 such cases. Of the cases involving a fatality, 44 had resulted in convictions, while 75 deaths had been found to be justified.
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MOST STATES NOW HAVE “STAND YOUR GROUND” LAWS Unfortunately, the gun lobby has aggressively promoted shoot first laws nationwide and a majority of states now have laws similar to the dangerous law in effect in Florida. Efforts to advance shoot first laws accelerated after Florida adopted its law in 2005 when the conservative, corporate-funded American Legislative Exchange Council (ALEC) adopted a model law bearing many similarities to Florida’s law. The ALEC model was developed in conjunction with the NRA, which has funded ALEC for years and, until 2011, co-chaired the council’s Public Safety and Elections task force that developed the model shoot first law. After widespread outcry and the loss of a number of major corporate sponsors following the death of Trayvon Martin, ALEC announced in 2012 that it was disbanding the Public Safety and Elections task force. The NRA, however, shows no signs of ceasing its efforts to convince states to adopt dangerous, expansive shoot first laws nationwide. Since 2005, 26 states (including Florida) have adopted either part or all of the ALEC model law, allowing people to use deadly force in self-defense in public, even if it can be avoided, and providing blanket criminal and civil immunity. These states are: Alabama Alaska Arizona Florida Georgia Indiana Kansas Kentucky Louisiana
Michigan Mississippi Missouri* Montana Nevada New Hampshire North Carolina North Dakota* Ohio*
Oklahoma Pennsylvania South Carolina South Dakota Tennessee Texas West Virginia Wisconsin*
* In these states, the statute only applies when the person claiming self-defense is in a vehicle. Before Florida adopted its law, the State of Utah adopted the nation’s first law permitting the use of deadly force in self-defense in public with no duty to retreat in 1994. Seven additional states California, Idaho, Illinois, New Mexico, Oregon, Virginia, and Washington – currently permit the use of deadly force in self-defense in public with no duty to retreat through a combination of statutes, judicial decisions, and/or jury instructions. These states are distinct from true “Florida4
style” laws in several respects, however. For one, many of the shoot first protections established in these states may only be invoked during criminal trials, as opposed to the Florida law and the ALEC model, which enable a shooter to escape liability in a pretrial hearing. Additionally, these states do not have some of the especially onerous elements found in the Florida law, such as the provision preventing law enforcement from arresting a shooter without probable cause that the force used was unlawful. In Florida, Governor Rick Scott appointed a task force shortly after Trayvon Martin’s killing to review the state’s shoot first law. Although that task force concluded, in a report released on February 22, 2013, that no major changes were needed to the state’s law, a separate task force led by State Senator Chris Smith issued a report in April, 2012, recommending significant reforms, including: 1) the removal of the provision preventing the arrest of a person who claims self-defense; and 2) the elimination or limitation of immunity where the alleged attacker was unarmed or fleeing. “STAND YOUR GROUND” LAWS ARE PARTICULARLY DEADLY WHEN COMBINED WITH WEAK CONCEALED CARRY LAWS Shoot first laws become exponentially more dangerous when paired with laws that grant large numbers of people licenses to carry concealed firearms in public places. As noted above, Florida's concealed handgun licensing law enabled George Zimmerman - who had been previously arrested for battering a law enforcement officer and had a restraining order issued against him - to legally carry a hidden, loaded handgun in public. Trayvon Martin would not have been killed if George Zimmerman had not been carrying a gun. Weak concealed weapon laws combined with shoot first laws create dangerous opportunities for everyday conflicts to escalate into lethal events. Unfortunately, as a result of a three-decade campaign by the gun lobby, state laws regulating who may carry concealed, loaded handguns and where they may carry them are more permissive than ever before. Currently, thirty-seven states require law enforcement officers to issue concealed handgun licenses to individuals who meet very minimal requirements; four states even allow people to carry concealed weapons statewide without permits.
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An analysis of news reports by the Violence Policy Center has identified at least 516 people, including 14 law enforcement officers, killed nationwide by individuals with concealed handgun licenses since May 2007. Given the limitations of news reports, the actual number of individuals killed by concealed handgun licensees is likely significantly higher. The number of concealed weapons permit holders in Florida has grown dramatically since the state enacted its shoot first law. According to the Tampa Bay Times, “[a]s ‘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.” CONGRESS SHOULD REFRAIN FROM ENACTING ANY FEDERAL STATUTES THAT WOULD EXACERBATE THE IMPACT OF “STAND YOUR GROUND” LAWS Given the threat to public safety created by shoot first laws, Congress should resist the continued efforts of the gun lobby to make any changes to our federal gun laws that would aggravate the problem. Specifically, Congress should avoid the adoption of any law forcing states to recognize concealed weapons permits issued in other states. Under existing federal law, each state may regulate the carrying of concealed handguns within its borders. Most states have some form of permitting or licensing requirement for concealed carry, with widely varying standards regarding who may carry concealed, what type of training is required, and where concealed carry may legally occur. Existing law allows individual states to enter into reciprocity agreements with other states, permitting those with licenses from one state to carry concealed in any other state that is party to the agreement. Such agreements require the consent of all states involved, however. No federal law currently requires a state to recognize the validity of a concealed carry permit from another state. Emboldened by its successes in state legislatures nationwide, the gun lobby is now pressuring Congress to adopt “forced reciprocity” legislation, however. Federal reciprocity would force states that issue concealed weapons permits to recognize every other state’s permits, eviscerating state authority to restrict who may carry guns within their borders. Importantly, nine states –
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California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New York, Oregon, and Rhode Island – do not recognize permits issued by any other states. Forcing states to recognize permits issued by other states is dangerous because of the significant gap between states with strong permitting laws and states with extremely weak ones. Some states, for example, prohibit a wide variety of convicted criminals from acquiring concealed weapons permits, while others do not. In California, individuals may not acquire concealed carry permits if they have been convicted of any of a wide variety of violent or firearm-related misdemeanors, including assault, battery, and unlawful possession of a firearm in a school or government building. In Arizona, in contrast, almost anyone who has not been convicted of a felony may acquire a concealed carry permit. With concealed carry reciprocity, states like California would be forced to allow criminals convicted of violent or firearm-related crimes – who would be unable to qualify for in-state concealed weapons permits – to carry concealed, loaded weapons in public. In addition, in a majority of states, applicants may receive concealed weapons permits without having shown any legitimate need to carry a weapon in public. Other states afford law enforcement agencies important discretion over the issuance of concealed carry permits. For example, in New Jersey, permits may only be issued to individuals who demonstrate a justifiable need to carry a handgun. In Ohio, in contrast, law enforcement is required to issue permits to any applicant who meets minimum threshold requirements, regardless of whether the applicant can demonstrate need. Federal reciprocity would force a state to recognize permits issued to individuals with no need to carry, even if the state requires its own residents to demonstrate some sort of legitimate need. State laws also vary greatly on the extent to which applicants must undergo firearms training and what that training must entail. For example, in Delaware, an applicant for a concealed weapons permit must complete a firearms training course that includes instruction on the safe handling and storage of firearms, conflict resolution, and federal and state laws regarding the possession of firearms and self-defense. State law requires that training also include live fire shooting exercises on a range, including the expenditure of at least 100 rounds of ammunition. In
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Virginia, in contrast, an individual may complete the required firearms training course online, and may receive a concealed carry permit without ever having even touched a handgun. In Mississippi, no firearms training whatsoever is required in order to get a concealed weapons permit. Forced reciprocity would compel states that require residents to undergo extensive firearms training to allow untrained or poorly trained individuals from other states to carry concealed weapons within their borders. On every major permitting question – who is prohibited from acquiring a permit, what kind of need an individual must show to get a permit, and what kind of training is required – good state laws would be overruled by bad ones under forced reciprocity, creating a dangerous “lowest common denominator” standard for concealed weapons permits. Finally, federal reciprocity legislation would force states to give preferential treatment to out-ofstate residents, since residents in states with restrictive standards for concealed carry would have to comply with those standards, while out-of-state residents with a concealed carry license from their home state would not. Congress should resist creating such inequities in the issuance of concealed carry permits, particularly given the threat created by the combination of lax concealed carry laws and shoot first laws.
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