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December 14, 2009

"That's not a civilized society."

Earlier this year, an interesting study was published in the University of Miami Law Review by Zachary Weaver. Entitled “Florida’s ‘Stand Your Ground’ Law: The Actual Effects and the Need for Clarification,” it raises some serious questions about the expanding parameters for the use of lethal force in our country.

On April 26, 2005, Florida Governor Jeb Bush signed “Stand Your Ground” (aka “Shoot First”) legislation into law. The law eliminated the state’s common law duty to use every reasonable means available to retreat prior to using deadly force, which the Florida Supreme Court had legitimized by explaining, “human life is precious, and deadly combat should be avoided if at all possible when imminent danger to oneself can be avoided.” The law states that any individual who is in a place where he/she has a legal right to be, and who is “not engaged in an unlawful activity ... 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 to himself or herself or another or to prevent the commission of a forcible felony.” Individuals using lethal force in this manner are immune from criminal prosecution and civil lawsuits.

In his article, Weaver catalogues the opposition of prosecutors and law enforcement to the law, citing the National District Attorneys Association, the Florida Prosecuting Attorneys Association, multiple State Attorneys, and police chiefs from cities like Miami and St. Petersburg. Palm Beach State Attorney Barry Krischer is quoted as saying, “I dislike the law because it encourages people to stand their ground…when they could just as easily walk away. To me, that’s not a civilized society.” Paul Logli, president of the National District Attorneys Association, points out that the law “give[s] citizens more rights to use deadly force than we give police officers, and with less review.”

Most troubling to Weaver is that the law creates a conclusive presumption that an individual had a reasonable fear of death or great bodily harm if an he/she can prove that an intruder unlawfully entered (or attempted to unlawfully enter) the individual’s home or vehicle. As Weaver describes it, “If the presumption applies, then there can be no criminal or civil repercussions for the use of deadly force. When found to apply, the presumption’s practical effect is that a jury will no longer be able to decide the factual question of whether the defendant had the reasonable fear necessary to use deadly force ... According to the law, if an intoxicated teenager enters his neighbor’s home by mistaking it for his own, the homeowner can presumably use deadly force. Even if the State could prove that the homeowner knew the intruder was his neighbor’s teenager and that the teen meant no harm, the presumptions entitle him to use deadly force.”

As a result, the law is “causing cases to not be filed at all or to be filed with reduced charges,” according to Russell Smith, President of the Florida Association of Criminal Defense Lawyers. Duval County State Attorney Harry Shorstein has observed “a lesser sensitivity to gun violence and death” since the law was passed.

Weaver cites several disturbing incidents from the Sunshine State that highlight these problems, including the following:

  • On March 28, 2006, decorated Army veteran Michael Frazzini was shot and killed outside his house by neighbor Todd Rasmussen. Rasmussen stated that he shot Frazzini because he was “lunging” at his son Corey, who was armed with a knife (and who has a lengthy criminal record, including violent offenses). Frazzini was “armed” with only a small, souvenir baseball bat. No charges were brought against Todd Rasmussen.

  • On June 6, 2006, Jason Rosenbloom was shot by his neighbor in a dispute over trash collection. Rosenbloom, who was unarmed, went to Kenneth Allen’s home to talk about the issue and was shot twice outside the house. Bleeding profusely, he had to crawl home next door to his wife and young son to get medical attention. Allen was never arrested or charged with a crime.

  • On June 11, 2006, prostitute Jacqueline Galas of New Port Richey shot and killed longtime client Frank Labiento after he threatened to kill her. She made no attempt to escape from Labiento, shot him without any warning, and failed to call for medical help as he was dying. Second-degree murder charges against Galas were eventually dropped, despite the fact that she admitted to being involved in “unlawful activity” (prostitution).

    Finally, Weaver draws attention to a curious passage in the law that lays out its rationale in part by stating, “WHEREAS, Section 8 of Article I of the State Constitution guarantees the right of the people to bear arms in defense of themselves...” Citing the “heavy influence and publicity by the NRA” that preceded the passage of the law, he asks: “What is the real purpose behind including the statement about the right to bear arms under the Florida Constitution? What message is the legislature sending to the citizens of Florida? Is the legislature encouraging the use of firearms when a person acts in self-defense? And if so, should it be?”

    Weaver offers several recommendations for the Florida legislature to clarify the intent of the law and provide insight as to how it should function in practice. First, he advises the legislature to create a system to track self-defense claims—whether or not they result in indictments—so that Floridians can see the actual effects of the law. Second, he recommends that the legislature either eliminate the presumptions of reasonable fear and of an intruder’s malicious intent or make these presumptions rebuttable with other evidence. This would discourage a “shoot first mentality” by allowing a jury to determine if an individual’s use of lethal force was justified under the circumstances. Third, the permissible amount of force which can be used in confrontations should be defined; and it should be roughly equivalent to the force of the threat. Finally, the legislature should clearly define “unlawful activity” and “explain the extent to which the provision applies, including the precise time-framing and degree of unlawful activity that will exempt an individual using force from claiming the law’s benefits.”

    With 23 other states having adopted versions of Florida’s “Stand Your Ground” law, Weaver’s scholarship could not be more timely. Hopefully, it will help spur a new look at legislation that is at best confusing, and at worst, dangerous.

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