Saturday, May 30, 2020


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IV. Impact of NRA-Inspired Statutes

A. Recent Impact in Florida

“It is undoubtedly distasteful to retreat; but it is ten times more distasteful to kill.”

While it will take more time to determine the true impact of these laws, Florida has begun to see some results. After the passage of Florida's “Castle Doctrine,” the police wondered how they would enforce the statute. In 2006, just one year later, those concerns materialized. In Florida, the police agencies are enforcing the statute differently. In one department, after being called, a detective elected not to investigate a shooting involving a teenager, while other counties expect detectives to investigate cases where persons are shot and wounded. One sergeant noted, “If you don't investigate every won't be able to tell if there was reasonable fear.” Then, he correctly inquired, “But what's reasonable fear? It's so vague, it's different for every one.” And therein lies the problem. The difficulty lies in determining when the deadly force was applied in self-defense rather than because of fear or hubris.

It is well demonstrated in the choices made by two Florida residents. One chose to retreat in the face of an attack in the park. He was attacked from behind, but retreated to his car, retrieved his gun, warned his attacker to stay away, and fired a shot into the ground. The police arrested the man and the assailed Floridian returned home. The second case turned out differently. The homeowner shot a stranger who threatened him with his fist. He was cleared by the grand jury. However, it has caused a deep rift between him and his neighbors because the person he shot and killed was his neighbor's guest. The shooter regrets the incident, stating, “[u]nfortunately, I had to make a decision that day that changed my life forever. I wish I could turn back time.”

A more recent case further demonstrates the dilemmas for police, prosecutors, and juries inherent in the “stand your ground” law. While walking his dog, a man was assailed by occupants of a jeep who tried to run him down. He shot at them five times through the windshield and then moved to the side of the vehicle and shot nine more rounds, killing two of them. The prosecutor filed murder charges, and at trial argued that the defendant had exceeded the force justified when he continued firing after shooting the driver and stopping the jeep. The jury acquitted him. While it is true that the law did not require the shooter to retreat, but permitted him to stand his ground, it did not sanction using more force than was necessary to repel the threat he faced. Once he shot and killed the driver of the vehicle, presumably in the first round of shots, the threat of being run over had ended.

B. Projected Impact on Racial Minorities

“[T]he death of a man, however it happens, will leave some stain behind it.”

At common law deadly force was never permitted, only justified or excused in certain narrow circumstances. The Castle Doctrine was one of the exceptions. The overarching goal was to prevent deaths and to preserve life. Entitlement to use deadly force in self-defense turns on the reasonableness of the actor's belief that 1) imminent danger exists; and 2) there is a necessity to use deadly force to thwart the danger.

These new statutes present potential danger for society at large, but they particularly endanger racial minorities. These statutes create a vigilante atmosphere. The hypersensitive individual, such as Bernhard Goetz, will interpret every act as being menacing and life-threatening if made by any member of a group he fears. Operating under a “reasonable belief” that he faces a threat of harm to himself, and a “reasonable belief” that deadly force is necessary to defend him, he will shoot quickly. In many cases, his victim will be a member of a different race or class. The new laws will presume that his act was proper and grant him immunity for his deed. Second, the law has a long history for creating pretexts for using deadly force in cases where racial bias or personal feuds exist. In 1994, Professor Armour posed a hypothetical which best demonstrates this phenomenon. She describes a white woman at an ATM being approached by a black man in a trench coat. He puts his hand in his coat, takes hold of something and begins to withdraw it. “Panic-stricken at the image before her...the woman pulls a pistol from her purse and levels it at the entering figure.” What the man has is a billfold, which she perceives to be a handgun. So she “shoots and kills the black man.” According to Professor Armour, the woman will then claim self-defense by arguing that “the black victim's race is relevant to the reasonableness of her belief that she was about to be attacked.” According to Professor Armour, the white woman in her hypothetical would be viewed as acting reasonably. “First, she [would] claim that it was reasonable to consider the victim's race in assessing the danger because most people would do so.” “Second, she could claim that her consideration of the victim's race was reasonable because blacks commit a disproportionate number of violent crimes and therefore pose a greater statistical threat.” Third, “if she had previously been violently assaulted by a black individual, she might claim that her overreaction to the victim's race was reasonable in light of her earlier experience.” She further argues “if we accept that racial discrimination violates contemporary social morality, then an actor's failure to overcome his racism for the sake of another's health, safety, and personal dignity is blameworthy and thus unreasonable, independent of whether or not it is “typical “.”

If we were to change the race of the actors in Professor Armour's hypothetical, would the outcome be different? Suppose the woman at the ATM is black and the man approaching her is white. If the black woman shot the white man, under the same circumstances, would she be equally justified in shooting? Probably not. As further demonstration of Professor Armour's argument about race and reasonableness, I will cite an example from my fall 2006 criminal law class discussion. While discussing Tennessee v. Garner, I referenced the Amadou Diallo shooting to enrich the dialogue. Students discussed the reasonableness of the conduct of the four white officers when they shot at Mr. Diallo.Some students vigorously defended the officers' actions as being reasonable. I altered the fact pattern by changing the race of the actors: I made the victim white and the four police officers black. I asked the students if the black officers' conduct of shooting the white man forty-one times was reasonable. The class fell silent. The class consisted of forty-six students, forty-four white and two black. Of the students who defended the white officers' conduct, none defended the black officers' conduct or viewed it as being reasonable.

Professor Armour's concerns have been realized in recent sobering incidents of police violence upon minority citizens. Three black males, Amadou Diallo, Devin Brown, and Sean Bell were all killed in separate incidents while being unarmed. On February 4, 1999, Mr. Diallo was killed in a barrage of gunfire while standing in the vestibule of his [apartment] building in Bronx, New York. Police fired forty-one rounds, nineteen of which struck Mr. Diallo. The police claimed that they thought he was reaching for a weapon. Mr. Diallo was unarmed and, in fact, had been reaching for only his wallet.

In February 2005, Devin Brown, a thirteen-year-old teenager, was killed as a result of leading the police on a three and a half-mile chase following theft of a vehicle. When Brown backed the vehicle into the police cruiser, barely missing the officer, the police fired ten rounds into the car driven by Devin. He was unarmed.

In another New York incident, Sean Bell was killed when leaving a bachelor party on the morning of November 25, 2006, his wedding day. The police fired fifty shots at Mr. Bell and his two friends. Mr. Bell died in the fusillade. One friend was shot at least eleven times and the other friend was hit three times. Bell's vehicle was struck by twenty-one of the bullets. Neither he nor his friends were armed.

Finally, Kathryn Johnston, an eighty-eight-year-old, was shot in her home when undercover police opened fire and killed her. In this incident which occurred in Atlanta, Georgia, on November 24, 2006, in the early morning hours after Thanksgiving Day, Ms. Johnston was armed and shot at police when they made a “no knock” forced entry into her home late at night. Under the Castle Doctrine or the defense of habitation doctrine, Ms. Johnston was entitled to shoot without retreating. The police fired back and killed the eighty-eight-year-old woman. She was not the suspected drug dealer they were seeking; neither did the subject of their search live with her.

In each of these cases, police subjected individuals to excessive or inappropriate use of deadly force. In the Sean Bell incident, one police officer fired thirty-one shots. He had to reload his nine millimeter weapon. New York police are trained to shoot, then stop and reassess before shooting again. During this episode, Bell and his associates did not return fire at any time. About the Devin Brown incident, one individual commented, “I know he [Devin] was wrong for stealing the car, but what I really don't understand is the police have had so much training.”

All of these victims were racial minorities. Police, who are trained to make decisions in high-pressure situations, often misconstrue harmless conduct as threatening and as a result, the police kill innocent people or people who pose no life-threatening danger to them. The cases discussed above have shown that the police were wrong about supposed threats when dead “assailants” were found unarmed. The explanation put forth in defense of the police action is a phenomenon called “contagious shooting.” Contagious shooting occurs when police officers get caught in the heat of the moment and fire too many shots.

A recent article in Criminal Justice spoke to the issue of racial bias in the criminal justice system. The article suggested cross-cultural training, cultural sensitivity training, reflection of the community's ethnic distribution in public offices, frank discussions with community leaders, and effective grievance and disciplinary procedures for police misconduct as ways to improve relations. These may be plausible tools for addressing racial bias among police, however, providing similar cross-cultural training to the general population remains problematic. It is the general populace that has been licensed to kill under these new laws. One can logically conclude that such incidents will become more frequent as self-defense falls under the increasing sway of the NRA and the “stand your ground” doctrine.

C. The Reasonableness Test

“[T]he law rightly insists that our actions be reasonable. It does not require you to be unafraid...or not to suspect a stranger. But it does uphold the worthy standard that you have no right to translate your fear into aggressive, dangerous action that is out of proportion to any threat. Bernhard Goetz did that.”

The question of the duty to retreat is a problem only when deadly force is used in self-defense. Before an actor will be justified in using deadly force, she must believe that deadly force is necessary. Actual peril need not exist, but must be apparent.

There is a wide margin of error between actual peril and belief that peril exists, and life and death lie within that margin. The actor's belief need not be correct, as long as it is reasonable. Edward East is credited with interjecting the concept of “reasonableness” in the law of self-defense. There are several prongs of reasonableness. First, the actor must be reasonable in her belief that a threat of death or serious bodily harm is imminent. Second, she must be reasonable in her belief that force is necessary. Third, she must reasonably believe that deadly force is the proper amount of force required. If the belief was reasonable, but wrong, the actor will be justified in applying deadly force, while the victim will be dead and unvindicated. Should defendants be liable for the harm caused by their mistaken beliefs? Yes. Certainly, a mistake as to the degree of force necessary to repel the threat (excessiveness) should be reviewed and held to account. After all, this kind of mistake has the potential to have the greatest impact on the preservation of life. But the new law says no. What does this say about the sanctity of life? It implies that innocent people are expendable as long as fearful people are reasonable when they kill. In this scenario, the law creates an anomaly. When citizens are mistaken in their judgment, we should not accept their acts as the “cost” of balancing the scales between victims and criminals. When a member of the law enforcement shoots or kills, an investigation takes place. This new law presumes that the lay person is justified in the use of deadly force and prohibits an arrest. We should not be so cavalier about life such that we are willing to accept the loss of an innocent life or serious bodily injury to an innocent person. If, under the circumstances, the investigating agency finds that there is no criminal liability, we should not deny the innocent person's family the right to recover for the wrongful death or the battery in a civil action. We profess to believe in the sanctity of life. Under this principle, every life has value, even that of a wrongdoer. Yet, when we preclude the victim or his estate from filing a civil action, we devalue the innocent life. This is done in the name of having the right to stand one's ground. There is a “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” If “our society has willingly chosen to bear a substantialburden [of allowing the guilty to go free] in order to protect the innocent,” then another corollary should hold true: it is far worse to kill an innocent man than to let a guilty one go free or live.

Professor Sanford H. Kadish states that the extension of the right to resist aggression flows from two contending principles: the principle of autonomy and the principle of proportionality. According to the first, there should be no limit on the right to resist threats to the person of the actor or interests closely identified therewith. According to the second principle, the moral right to resist threats is subject to the qualification that the actions necessary to resist the threat must not be out of proportion to the nature of the threat. Legislators who are concerned about the overbreadth of these new laws agree with the second principle.