by The Last Gun- How Changes in the Gun Industry Are Killing Americans
The novelist Carl Hiaasen, a columnist for the Miami Herald, was also right. “Every gang-banger in the state should write a thank-you note to the NRA,” he wrote in 2005. “For years, street thugs have tried without much luck to use self-defense as an excuse for their bloody shootouts. Now it’s right there in the statute books: If you get fired at, dawg, you can fire back. Better yet, the law is so purposefully slack that if you even imagine you’re going to be fired at, you can pull out your legally purchased AK-47 and open up.”113 So let it be written, so let it be done. In 2010, a Florida circuit judge ruled that the law insulated two defendants facing murder charges in the case of man who was shot to death with an AK-47. The incident involved a running street battle between affiliates of rival gangs. “What this means, as illustrated by this case, is that two individuals, or even groups, can square off in a middle of a public street, exchange gunfire, and both be absolved from criminal liability if they were reasonably acting in self defense,” the judge wrote. “It is very much like the Wild West. Maybe that is not what was intended, but that seems to be the effect of the language used.”114
Farther west, in Pasadena, Texas, a sixty-one-year-old retiree named Joe Horn saw two burglars breaking into a neighbor’s home in November 2007. The exchange between Horn and a 911 dispatcher, as reported in the New York Times, raised a red flag about the troubling prospect of vigilantism under the new laws—one private citizen acting on his own as police officer, prosecutor, judge, jury, and executioner:
In a low, calm and steady voice, he [Horn] said he saw the men breaking in and asked: “I’ve got a shotgun; do you want me to stop them?”
The Pasadena emergency operator responded: “Nope. Don’t do that. Ain’t no property worth shooting somebody over, O.K.?”
Mr. Horn said: “But hurry up, man. Catch these guys will you? Cause, I ain’t going to let them go.”
Mr. Horn then said he would get his shotgun.
The operator said, “No, no.” But Mr. Horn said: “I can’t take a chance of getting killed over this, O.K.? I’m going to shoot.”
The operator told him not to go out with a gun because officers would be arriving.
“O.K.,” Mr. Horn said. “But I have a right to protect myself too, sir,” adding, “The laws have been changed in this country since September the first, and you know it.”
The operator said, “You’re going to get yourself shot.” But Mr. Horn replied, “You want to make a bet? I’m going to kill them.”
Moments later he said, “Well here it goes, buddy. You hear the shotgun clicking and I’m going.”
Then he said: “Move, you’re dead.”
There were two quick explosions, then a third, and the 911 call ended.
“I had no choice,” Mr. Horn said when he called 911 back. “They came in the front yard with me, man.”
The two men, both undocumented aliens, were found in neighboring yards, both shot dead.115 A grand jury later declined to indict Horn.
Joe Horn’s chilling dialogue with the 911 operator was echoed less than five years later, this time in Florida. And this time, the body lying on the grass was not an undocumented alien or burglar. It was an innocent teenager.
On the evening of Sunday, February 26, 2012, Trayvon Martin, a seventeen-year-old high school junior, walked to a nearby 7-Eleven store from the home where he was staying with his father. The home was in a racially mixed gated community in Sanford, Florida. The young man bought some iced tea and candy and started walking back in the rain.
At 7:11 P.M., George Zimmerman, a resident of the neighborhood and the “neighborhood watch volunteer,” spotted Martin. Zimmerman, armed with a Kel-Tec 9mm pistol, called the police, as he had often done in the past. “Hey, we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy,” he told the 911 operator. “This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining, and he’s just walking around looking about.”
At about the same time, Martin noticed that he was being followed. It happened that he was talking on the phone with his girlfriend, who advised him to run. He did. At 7:13, Zimmerman told the police operator, “S—, he’s running.”
A beeping sound is heard at this point on the 911 tape. Zimmerman had opened the door of his vehicle. He went after Trayvon Martin on foot.
“Are you following him?” the operator asked Zimmerman.
“Yeah,” he replied.
“OK, we don’t need you to do that,” the operator said, an eerie echo of the admonition given to Joe Horn in Texas.
Zimmerman spent a few more minutes on the phone. First he gave the operator directions about where he would meet a police officer. Then he seemed to change his mind.
“Actually, could you have him call me, and I’ll tell him where I’m at?” he said.
At 7:15, four minutes after the call began, he hung up.
What happened next is a classic case of the only survivor to a shooting death claiming self-defense. What is known for sure is that within a few more minutes, George Zimmerman shot Trayvon Martin to death. Zimmerman claimed that he had acted in self-defense.116 The Sanford Police Department agreed. Sanford police chief Bill Lee claimed that his detectives did not have enough evidence to arrest Zimmerman in the face of his claim that he acted in self-defense. “Until we can establish probable cause to dispute that, we don’t have the grounds to arrest him,” the chief said.117
The case caused a national outcry.
Pummeled by civil rights activists, the news media, gun violence prevention groups, and politicians outraged by the pass seemingly given Zimmerman, Governor Rick Scott, a Republican, appointed a special prosecutor, State Attorney Angela Corey of Jacksonville, to take over the investigation and decide whether charges were warranted. The governor also said he would convene a panel to review the law.118 But Democratic critics complained that he was dragging his feet.119 The Civil Rights Division of the U.S. Department of Justice and the FBI jointly opened a separate criminal investigation into possible violations of federal civil rights law.120
On April 11, 2012, Corey announced that, after a “thorough review” of the evidence, the state had concluded that the new law, often called the stand-your-ground law, did not apply to Zimmerman’s case. “If Stand Your Ground becomes an issue, we fight it,” Corey said.121 Zimmerman was charged with second-degree murder, an offense that carries a maximum sentence of life in prison in Florida.122 In a succinct affidavit filed to support the charges, investigators stated that Zimmerman “profiled” Martin, who was “unarmed and was not committing a crime.”123
He turned himself in the same day.124 In August 2012, Zimmerman’s lawyer announced that he intended to use the stand-your-ground defense. Accordingly, a trial-like hearing was to be scheduled to determine whether Zimmerman’s assertion is valid. If a judge rules that the law’s defense applies to Zimmerman, the second-degree murder charge will be thrown out.125 At this writing, no hearing had been scheduled and Zimmerman’s case was still pending.
Marion Hammer still says the shoot-first law is just fine. “This law is not about one incident,” Hammer told the Palm Beach Post after the Martin shooting. “It’s about protecting the right of law-abiding people to protect themselves when they are attacked.”126 But other voices in the state disagreed. “The divergent interpretations by justice officials in the Martin case raise the haunting specter of justice denied in other ‘stand your ground’ cases,” the Orlando Sentinel declared. “If those who uphold the law can’t consistently judge self-defense, how are citizens supposed to know?”127
It is precisely that question—the instant judgment of ordinary citizens in the heat of the moment—that leads back to the “shoot cops” law, an extreme expansion of the castle doctrine, passed by the Indiana legislature in 2012.
The context in which the “shoot cops” law was passed in Indiana is the radical right-wing view that law enforcement is, or is rapidly becoming, the conveniently visible face of the en
emy, the state. Guns can and ought to be used to fight back against this “police state.” An article in The New American, a John Birch Society magazine,128 distilled this view in criticizing the Heller decision for not going far enough to ensure gun rights. “In isolation, an individual’s right to possess firearms for the purpose of self defense in his own home can only minimally deter rogue public officials from attempting to impose a police state on this country. Without thoroughgoing organization, sufficient arms, and legal authority for collective action, Americans cannot expect to deter, let alone to resist, large-scale para-militarized police forces and other instruments of oppression.”129
The question of whether homeowners can resist police entry erupted in Indiana on November 18, 2007, when Mary Barnes called Evansville police and complained that her husband, Richard, was throwing things around their apartment. When responding officers arrived, they found Richard Barnes in the parking lot. A heated verbal confrontation ensued. When Richard Barnes went back into the apartment, a police officer attempted to follow him. Barnes shoved the officer against the wall and was subdued after a struggle and his being shot with a Taser.130
In his defense against charges of assault against a police officer, Barnes claimed that, because the officers had neither a warrant nor his permission to enter the apartment, his resistance was immunized by the old common-law castle doctrine. The case ended up in the Indiana Supreme Court, which sided with the police in a May 2011 decision. The court acknowledged that, under the ancient doctrine, one indeed could resist unlawful authority. But it pointed out that because of the combination of protections against arbitrary police action in modern law and the danger of violence escalating, “a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s.”131
We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. . . . We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case. . . . In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.132
The court’s ruling ignited protests from libertarians and the right wing, notwithstanding the fact that, as the court took pains to point out, the decision was well within the mainstream of American common law.133 A legislative reversal was introduced.
“Our forefathers fought for a right to live freely without fear of unwarranted intrusion by an oppressive government,” stormed State Senator Mike Young. “Certainly times have changed since then, but this right is among the most basic we have and should not be tampered with in any way.”134 State Representative Mike Speedy agreed. A legislative reversal was necessary, he said, to prevent “the coercive power of government. . . . We can’t kid ourselves—it is as powerful as ever, and without undoing the Barnes decision, it has crept into our home in a way that is wildly unpopular in our communities.”135 One voter, a fan of the bill, showed up at a legislative hearing wearing a medieval knight’s costume, apparently a symbolic reference to the castle doctrine.136
Opponents warned that the bill would have unintended consequences. Representative Craig Fry cautioned that “it’s too late after somebody dies for a jury to sort it out. Somebody’s going to die, whether it’s a police officer or an individual who thinks a police officer is entering their home unlawfully. People are going to die.”137 Steuben County Sheriff Tim Troyer said methamphetamine abuse had already caused a spike in violence toward his officers. “You interject that substance with that mindset that they have a pass now to resist law enforcement and I fear a genuine problem for our communities,” he said. David Powell, executive director of the Indiana Prosecuting Attorneys Council, said the law would prevent prosecution of a person who attacked an undercover police officer trying to make an arrest. “In their mind, they did not know this individual was a police officer, and if they hurt that police officer, their lawyer in court is going to say, ‘He’s undercover, he was out on the street and I didn’t know he was a police officer,’ ” Powell said. “So we give that person who could have . . . battered and injured a police officer . . . a pass with this bill.”138
Nevertheless, the bill passed, and Governor Mitch Daniels signed it into law.139 The State of Indiana issued a statement. “We do not live in a police state; we live in a free society.”140
The history of the toxic mix of Florida’s laws, the NRA, and ALEC shows it was a short legislative step from “shoot first at home” to “shoot first anywhere.” It has yet to be seen whether a similar third wave will add “shoot cops at home” and “shoot cops anywhere” to this volatile brew of “gun rights.” If it does, a future Humberto Delgado Jr. will have a ready defense. And a cop who doesn’t ask permission to go through a backpack or who enters a home to protect a wife being battered will run the risk of being shot first.
6
AS CLOSE AS YOU CAN GET
WITHOUT ENLISTING
On July 20, 2012, twenty-four-year-old James Eagan Holmes bought a ticket for the midnight premiere of the Batman movie The Dark Knight Rises, playing at the Century Aurora 16 complex at Aurora Town Center in Aurora, Colorado.1 Holmes entered the theater, then exited through an emergency door, which he propped open. He reentered the theater about fifteen minutes into the movie.2
When he returned, Holmes was dressed in black and was wearing the gear of a Special Weapons and Tactics (SWAT)3 team member—ballistic helmet and vest, throat and groin protectors, black tactical gloves, and a gas mask.4 He was also armed as if he were a one-man SWAT team, with a .223 Smith & Wesson M&P15 (an AR-15-type assault rifle), a 40 caliber Glock semiautomatic pistol, and a shotgun. Another 40 caliber Glock pistol was found later in his car.5 He had fitted his Smith & Wesson assault rifle with a drum magazine, which was capable of holding one hundred rounds of ammunition in a single loading. After tossing some sort of incendiary or smoke device into the theater, Holmes allegedly opened fire on the theater’s patrons. Within minutes, twelve people were killed and fifty-eight wounded, several grievously.6
Survivors said Holmes was calm and methodical. “Every few seconds, it was just boom, boom, boom. He would reload and shoot, and anyone who would try to leave would just get killed,” said one. “It almost seemed like fun to him.”7 Holmes was “as calm as can be,” another said. “He was trying to shoot as many people as he could.”8
Shooting as many people as one can is precisely the purpose of the design upon which the Smith & Wesson M&P15 assault rifle is based. Derived from the U.S. military’s M-16 assault rifle, it is one of a devil’s armory of weapons that the gun industry designs for war but aggressively markets to civilians in America. In 2003, four-star General Wesley Clark—a West Point graduate and a man intimately familiar with assault weaponry—said, “I have grown up with guns all my life, but people who like assault weapons . . . should join the United States Army, we have them.”9 The gun industry has turned General Clark’s pithy advice inside out. It perversely promotes sales of military-style guns—assault weapons and high-capacity semiautomatic pistols—by touting the fact that civilians can legally buy virtually the same guns adopted by armed services and police agencies. Advertising, catalogs, and promotional articles in the gun enthusiast media directly link the weapons used by military and law enforcement agencies to the fantasies of potential customers in the civilian market. The marketing message is anything but subtle. Why join the army when you can stay at home and outfit yourself for combat, just like a real soldier?
FN Herstal USA’s 2010 catalog, for example, touts the company’s SCAR
16S assault rifle as “the semi-auto only version of the U.S. Special Operations Command’s newest service rifle.” According to the catalog’s text, owning the gun is “as close as you can get without enlisting.”10 To promote its armor-piercing handgun in the U.S. civilian market, FN likewise emphasizes its military cachet. (This is the model that Major Nidal M. Hasan allegedly used in the November 2009 mass shooting at Fort Hood, Texas, discussed in detail in the introduction.) An ad in the FNH USA 2008 catalog contains a picture of what appear to be troops in the field in the top half and the Five-seveN 5.7mm armor-piercing handgun in the bottom half. The phrase “Built for them” is superimposed over the picture of the troops, and “Built for you” over the handgun. Accompanying text states, “Today FN provides 70% of the small arms used by U.S. Military Forces around the globe. FN is the name you can trust. JUST LIKE THEY DO.” (Capitals in original.)11 Similarly, a Springfield Armory ad for its M1A rifle in the May 2010 edition of the NRA’s American Rifleman invokes a militaristic vision in the phrase, “Any mission, any condition, any foe, at any range.”12
In addition to direct links to military images in product promotion, the industry also relies heavily on “patriotic” and “heroic” imagery to identify ownership of military-style weapons with grand themes of patriotism and homeland defense. For example, the top half of a Beretta ad for its Px4 Storm semiautomatic pistol displays in the background a soldier in field dress, holding a handgun. Text superimposed over the soldier states, “Sweltering heat. Howling wind. Sand that fouls every moving part. This is where we perfected our firearms.” Another section of text next to an illustration of the pistol reads, “You won’t find a more inhospitable place than Iraq. Beretta has been there since day one, on active duty with the U.S. Military. . . . And now, Beretta brings its experience in field-proven sidearms to the Px4 Storm. Whether you’re protecting home or homeland, you need proven reliability in a firearm.”13