by The Last Gun- How Changes in the Gun Industry Are Killing Americans
Putting aside the moral questions inherent in going about armed—daring and perhaps hoping for violence to happen—there are long-standing, wisely developed limitations in law on killing other people, even in self-defense. Over the centuries since the Middle Ages, the English common law upon which American law is based has recognized that one has the right to defend oneself, including killing another in extreme cases. But the interests of a civil society have required that one asserting self-defense prove that a reasonable person would have feared death or serious bodily injury in the circumstances at issue. The common law has also required that—even in the face of such a reasonably perceived threat—one must avoid violence if possible. For this reason, the general rule has been that “one should first try to disengage or retreat, if attacked, which was often a prerequisite for a claim of self-defense.”80 This rule “places a priority on human life. It also reflects the notion that a person would rather retreat than kill their attacker and have to live with the consequences or, worse, accidentally kill an innocent bystander.”81
An exception to this general duty to retreat—when one is attacked in one’s own home—has been long recognized. In 1914 Benjamin Cardozo, then a judge on the New York State Court of Appeals and later an associate justice of the U.S. Supreme Court,82 stated this exception in People v. Tomlins, an often quoted New York case in which a man killed his own son during a domestic altercation. “It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.”83 This exception has historically been known as the castle doctrine, referring to a statement by Sir Edward Coke, an English jurist in the seventeenth century, that “a man’s home is his castle.”84 Even this castle doctrine, however, was not without limit. Judge Cardozo also noted in the classic case on the subject, “A man who is himself the aggressor or who needlessly resumes the fight, gains no immunity because he kills in his own dwelling.”85
In 2004, a legal advice column in the Miami Herald summed up the Florida law of armed self-defense, both in the home and elsewhere, as it stood at the time. The law then was consistent with the traditional common law.
With reference to when a person is justified in the use of deadly force, Florida Statute chapter 776 permits it “only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”
Usually a person is required to retreat in the face of threatened violence and avoid confrontation if possible, including when in their car. And they may not use lethal force after a crime has been completed or the criminal has surrendered. But the “retreat rule” gives way to the “castle doctrine” when one is attacked within their own home or place of business and allows the use of deadly force, if necessary86
The pivotal points here were the requirement of the defendant to prove reasonable fear, the duty to retreat and avoid violence if possible, and the precondition of being actually attacked in one’s home before the castle doctrine’s right to stand one’s ground applied. Even today, after decades of Florida’s lawmakers weakening gun-control laws, Florida licensing authorities ironically—one might fairly say hypocritically—urge caution on their website:
Applying for a license to carry a concealed weapon or firearm for self-defense is a right of law-abiding Floridians. However, you must remember that a license to carry a weapon or firearm concealed on your person does not authorize you to use that weapon. Use of a concealed weapon or firearm is regulated by other provisions of Florida law.87
Those other provisions of Florida law as they existed in 2004 were exactly what the industry’s “gun rights” alliance set out to gut. Hammer and her allies appropriated the language of the tightly drawn and sensible exceptions to the general common-law duty to avoid violence—the traditional castle doctrine and its limited permission to stand one’s ground when attacked in the home—and distorted it into ideological slogans. Turning the law on its head, they twisted the terms castle doctrine and stand your ground from carefully crafted restrictions on lethal violence into mindless rhetorical banners that encourage carrying guns and using them to shoot people. Hammer once again badgered the Florida legislature into lowering the gun violence bar as a way into expanded handgun markets.
She did it by inventing a problem that did not exist.
According to Marion Hammer and her minions, law-abiding citizens who shot bad guys were being hounded by prosecutors and charged with criminal offenses while felons walked free. “Florida licenses law-abiding people to carry concealed firearms when they’re out on the streets for lawful self-protection, but the courts have been taking away their right to protect themselves by imposing a duty to retreat,” Hammer claimed in 2005. “So if a rapist tries to drag a woman into an alley, under current case law, and jury instructions that a judge gives a jury, that woman is supposed to try to pull away and run and could be chased down and stabbed in the back or shot in the back.”88
The fact that neither Hammer nor anyone else could cite a single case in which such a prosecution had ever happened to any self-defender anywhere in Florida did nothing to deter the next wave of laws hatched in the Florida gun violence incubator.89 The mutant forms of the venerable castle doctrine and stand-your-ground laws written into the Personal Protection Bill Florida enacted in 2005 bore little resemblance to the common-law originals. The new law eliminated the duty to retreat to avoid violence. It also:
•Replaced the common law “reasonable person” standard with a “presumption of reasonableness” or “presumption of fear” in many instances. This shifted the burden of proof to prosecutors, who are required to prove a negative.
•Extended the right to deadly self-defense from the old castle doctrine to areas outside the home. If a person’s actions are covered by the “presumption of reasonableness,” that person can legally use deadly force anywhere that he or she has a right to be.
•Broadened the circumstances in which one can legally respond with deadly force to include those in which only property is threatened and the threat is not imminent. This was a significant change from the common-law standard that only an imminent threat to a person justified deadly force.
•Provided blanket civil and criminal immunity for a person using force as defined and permitted by the new law.90
The Palm Beach Post summed up the proposed new Florida law in 2005, as bills made their way through the Florida House and Senate:
The bills eliminate the “attack” requirement. They presume that if someone is illegally entering your home, that person has the intent to cause death or bodily harm. The current law requires that intent to be proved. The bills also would extend the Castle Doctrine to an attached porch or someone’s vehicle, and to a lesser extent to a situation in public where someone fears for his or her life. But the bills do not extend the right to use force to shooting a police officer who has identified himself as such.91
Marion Hammer’s reading was more expansive. “The bill removes the duty to retreat if you’re outside your home or in a public place,” she explained. “It only allows you to stand your ground and meet force with force, if you reasonably believe that force is necessary to defend yourself against death or great bodily harm.”92 State Senator Steve Geller, a Democrat from Hallandale Beach, argued against the bills. “We never said . . . that the street is your castle,” he said. “I don’t think you ought to be able to kill people that are walking toward you on the street because of this subjective belief that you’re worried that they may get in a fight with you.”93 But in a masterpiece of circular reasoning, Wayne LaPierre, the NRA’s executive vice president, told the New York Times that the new law sent a good message to Florida’s good citizens. “If they make a decision to save their lives in the split second they are being attacked, the law is on
their side,” he said. “Good people make good decisions. That’s why they’re good people. If you’re going to empower someone, empower the crime victim.”94
The new law twisted the common-law castle doctrine into a “shoot anywhere” rule—not only did one not have to retreat to avoid attack inside one’s home, one no longer had to retreat from anywhere one had a right to be outside the home. And by legislatively decreeing the presumption of reasonable fear, the law turned the right to stand one’s ground inside the home into the right to “shoot first” virtually anywhere. The clear legal terminology of the common law was reduced to vague rhetorical slogans cast about by “gun rights” advocates. “Castle doctrine” and “stand your ground” came to mean virtually the same thing: the “right” of “good people” to shoot first anywhere they happened to be.
Florida’s prosecutors were alarmed. The Palm Beach County State Attorney’s Office pointed to a high-profile 2003 case in which a teenager had been shot and killed by a homeowner while playing a door-knocking prank with friends on his sixteenth birthday. The homeowner heard the teenager trying to tie a fishing line to the door knocker, got his 40 caliber handgun, and shot the youth to death—in the back. The homeowner pleaded guilty to a charge of manslaughter and was sentenced to spend fifty-two weekends in the Palm Beach County Jail and ten years of probation. “If this bill were in effect back then, that case would not be prosecuted,” a spokesman for the local state attorney said prophetically.95
Hammer brushed such warnings aside and lashed Florida’s lawmakers into line. This time, she had the help of Democrats who were trying to align themselves with Republican values. “While perhaps [the bill] may go a little too far, it sends a message that Democrats believe in those same core values,” Democrat Representative Will Kendrick, a co-sponsor of the House version of the bill, said. “The majority of Democrats have gotten away from basic principles. They’ve realized they were way out in left field. I think some of them voted for this one in an attempt to get back to a balance.” Another Democrat, Representative Richard Machek, explained that he was in favor of the home and vehicle portions of the bill but opposed the part that allowed standing one’s ground in the streets. “You don’t have an option,” Machek said. “The problem was, if I was voting against it, I was voting against protecting yourself in your home. I hope I did the right thing.” Representative Dan Gelber said simply, “The NRA is a very powerful lobby and a lot of members don’t want to cross it.” Even State Senator Steven Geller, a Democrat who led the charge against the bills, ended up voting for them.96 “Voting against the Castle Doctrine, which is wildly popular and which does make sense . . . would be seen as, ‘Those Democrats are soft in [sic] crime,’ ” he said.97
Newspapers and other observers outside the daisy chain of “gun rights” lobbyists and compliant legislators were disgusted. The Bradenton Herald, for example, raked those who caved in to Hammer and supported the new law. It was “another case of overreach by the National Rifle Association, and another example of cowardice by lawmakers who put political ambition ahead of public safety,” the paper editorialized. “Afraid of being labeled soft on guns, most legislators gave the NRA a pass in ramrodding the bill through the Republican-controlled Legislature. Most law enforcement agencies remained neutral, also aware of the power of the gun lobby.”98
One of the bills’ Republican sponsors piously denied that the matter had anything to do with gun sales, claiming that he didn’t even own a gun himself. “But what I want is for the criminal to know that every single door he breaks in, those people may have a firearm and they absolutely have the right to protect themselves,” he said. “I’m not trying to sell guns, I’m trying to empower the freedom of our people.”99 Two months later, Shooting Industry had a more sanguine view of the impact of the new law on the gun industry’s prospects.
Self-defense is an important segment of the industry’s market—and it continues to grow. . . . Most recently, Florida grabbed the attention of the nation when Gov. Jeb Bush signed into law a measure that allows citizens to use deadly force outside of their homes “if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm.” There also has been an upsurge in self-defense related sales in recent years as more citizens throughout the nation “take more responsibility for their own safety.” That has translated into increased development and production of self-defense firearms and related products—and increased sales for gun dealers.100
The NRA took its new present for the gun industry on the road. Executive Vice President Wayne LaPierre told the Washington Post that the new Florida law was merely the “first step of a multi-state strategy.” Giving Hammer credit for conceiving the new law, LaPierre promised to use the model of the concealed-carry wave to push the new shoot-first-anywhere wave. “There’s a big tail-wind we have, moving from state legislature to state legislature,” he said. “The South, the Midwest, everything they call ‘flyover land,’. . . we can pass this law in that state.”101 He told the New York Times that the NRA planned to introduce the new law in every state. “We will start with red and move to blue,” he said. “In terms of passing it, it is downhill rather than uphill because of all the public support.”102
What LaPierre did not mention was that “all the public support” was to be generated by the American Legislative Exchange Council (ALEC), a secretive network of conservative state legislators who often overrode public opinion and prosecutorial judgment against the law. “ALEC is essentially a corporate bill factory,” Anna Scholl, executive director of a Virginia advocacy group said in 2012. “ALEC writes model legislation that is designed to increase corporate bottom lines, and then they turn around and hand it off to state legislators to take it home and introduce it.”103 The NRA is one of ALEC’s funders, among others including organizations linked to the Koch brothers. At a secret August 2005 meeting in Grapevine, Texas, Hammer asked ALEC’s “Criminal Justice Task Force” to adopt the Florida castle-doctrine bill as an ALEC model bill. In September 2005, the bill was adopted by ALEC’s National Board of Directors. State legislators linked to ALEC then set about introducing this cookie-cutter bill.104
Like the concealed-carry relaxation, Florida’s new law swept over other states. State after state fell into line, as sponsoring legislators pretended to find flaws in state laws of self-defense, then introduced ALEC’s legislative cookie as the remedy. In 2006, for example, Arizona governor Janet Napolitano—the very politician who would later oversee the spending of trillions of dollars on “homeland security” and the “war on terror”—signed a bill into law over the objections of state prosecutors. “She believes in the fundamental right of self-defense,” her spokesperson said. “And the law still requires the defendant to be in imminent peril of death or serious physical injury.”105 By 2007, Shooting Industry—in an article headlined “Self-Defense Unleashed! No Season on Sales, No Limit on Profits!”—could tell gun dealers, “If you’re not cashing in on self-defense sales, it’s like running a bait-and-tackle shop—and not selling hooks and sinkers!”106
When ALEC’s role became known in 2012, after an estimated thirty-two states had passed some or all of its model law, a number of its corporate sponsors—including Coca-Cola, PepsiCo, and Kraft Foods—bailed out of the organization. The notorious Trayvon Martin case suddenly made being associated with the right-wing legislative string-pullers toxic.107
But the awful damage had already been done, just as had been predicted by the law’s critics. “The bill. . . would define self-defense so broadly as to impose few restraints on individual behavior in the heat of an argument,” the South Florida Sun-Sentinel warned while the law was being considered in Florida. “It would give Floridians the impression that they have a quick-trigger right to violence in many situations that have not resulted in violence in the past.”108
Florida’s law now says a person “has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force
if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm.” And although Hammer and other advocates claim that the new law was simply a technical expansion of the old common-law castle doctrine, the Association of Prosecuting Attorneys, a national group, says otherwise: that it bars the prosecution of criminals. “It’s almost like we now have to prove a negative—that a person was not acting in self-defense, often on the basis of only one witness, the shooter,” Steven A. Jansen, the group’s vice president, told the Washington Post in 2012. Justifiable homicides by civilians have tripled in Florida since the new law was passed, from an average of twelve per year to an average of thirty-six per year.109
John F. Timoney, Miami’s police chief, warned about specific scenarios at the time the law was passed. “Whether it’s trick-or-treaters or kids playing in the yard of someone who doesn’t want them there or some drunk guy stumbling into the wrong house,” Chief Timoney said, “you’re encouraging people to possibly use deadly physical force where it shouldn’t be used.”110 The chief was exactly right about stumbling drunks and deadly force—at least two such instances occurred in 2008. In April, an honor law school student in Alabama was killed, and in October a college student in Florida was seriously wounded when, after a night of drinking, each accidentally entered an apartment that looked “identical” to his own but was in fact the wrong place. In both instances, the new “model” law insulated the shooters from prosecution.111 In a similar incident in 2009, a homeowner stepped outside of his house after a drunken youth twice mistook the house for the one hosting a party he had stumbled away from. The homeowner shot the youth in the chest and seriously wounded him, but he, too, was insulated from accountability by the Florida law.112