"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.

The Latest from the Gunshine State

Permissive Gun Laws Fail to Prevent Dramatic Increase in Violent Gun Crime

Florida has long been known as a state with loose gun laws. A “Shall Issue” state for concealed carry permits (meaning that local law enforcement must issue a concealed weapons license to an applicant if he/she passes a background check and meets modest safety/training requirements), Florida is also notable for being the first state to pass a “Shoot First” law at the behest of the National Rifle Association (NRA). The 2005 law expanded Floridians’ right to use deadly force in self-defense inside and outside the home and eliminated any duty to retreat (if possible) before resorting to the use of such force.

The NRA and other pro-gun groups have praised these laws, arguing that the more than 400,000 Floridians who have obtained concealed carry permits will make their state safer because criminals will be concerned that potential victims could be packing heat. As the gun lobby frequently claims, “an armed society is a polite society.” Skeptics were even told that these laws would deter rapists by arming women and giving them the freedom to fight back.

Recent statistics from the Florida Department of Law Enforcement, however, have cast serious doubt on these claims. The figures for 2007 show an 11.5% increase in gun murders, a 25% increase in armed robberies with guns, and a 20% increase in forcible rapes in which a gun was used. Notably, the overall violent crime rate in the state went up by only 1.4 percent in 2007.

These statistics demonstrate a point that Harvard researcher David Hemenway has often made. America is not unique in its overall level of violent crime. What separates us from other industrialized democracies is that American violence tends to end in death; and that is because we own more guns per capita than any other high income country. Looking at Florida’s 2007 statistics again, the overall murder rate went up by 6.5%, but murders in which a knife was used actually decreased by 24%. Easy access to guns in the state is responsible for the discrepancy, as it makes crime more lethal.

Perhaps Florida’s permissive gun laws are arming criminals and violent individuals in addition to law-abiding citizens. It was only a little over a year ago that the Orlando Sun-Sentinel released a bombshell report indicting the failures of Florida’s concealed carry permitting process. In a 2007 article, the Sentinel revealed that Florida’s CCW list included more than 1,400 people who pleaded guilty or no contest to felonies, 216 people with outstanding warrants, 128 people with active domestic violence injunctions against them, and six registered sex offenders. In response, the Florida legislature passed a bill banning the public and press from accessing this information in the future.

Recent action by Florida’s elected officials has been equally puzzling. First, Governor Charlie Crist refused to make any comment on the increase in gun crime. Then, on April 9, the Florida legislature finalized its approval of a bill that will prohibit businesses from preventing those with concealed carry permits from keeping handguns and assault rifles locked in their cars at work. The governor has indicated he will sign the bill, despite the intense opposition of business interests in the state.

Florida’s elected officials are clearly eager to please the gun lobby. Are they up to the task of protecting their citizens, ensuring public safety and protecting individual rights? A serious effort in this area would begin with measures to prevent criminal access to firearms and to respect the interests of private property owners who do not want firearms on their premises.

More guns, less crime? Not in sunny Florida…

Amish Teach Valuable Lesson of Forgiveness

We are quickly approaching the one-year anniversary of the tragic shooting that claimed the lives of five young Amish girls on October 2, 2006. Charles Carl Roberts barricaded himself inside an Amish schoolhouse in Lancaster County, Pennsylvania. Shortly thereafter, he shot ten girls, aged seven to 13. The girls were shot "execution style" in the back of the head; five survived. Robert's arsenal included a 9mm handgun, a 12-gauge shotgun, a bolt-action rifle and hundreds of rounds of ammunition.

Hidden in the news today was a small story about the aftermath of this tragedy. A charity set up to help families of the victims of the shooting has bequeathed an undisclosed amount of money to Roberts' wife (who has three daughters) at the behest of the Amish community. Even on the day of the shooting, the grandfather of one of the slain girls said, "We must not think evil of this man."

The kind of forgiveness displayed by the Lancaster Amish community is a rarity in our society today. More and more we are taught to seek revenge and to solve our problems with violence. The gun lobby is at the forefront of this "Shoot First" movement, advocating for measures in state legislatures that allow a person to use deadly force as their first line of defense when threatened, rather than as their last. Tied into this campaign is the NRA's support for guns on college campuses and the organization's claim that widespread concealed carry of handguns will lead to less crime. This absurd notion, that more guns make us safer, directly fuels the culture of violence in the United States.

Violence also permeates our entertainment industry. The premise of two recently released movies is solely to glorify revenge-fueled acts of violence as if they were great acts of courage. These movies are "Death Sentence," and "The Brave One," whose taglines read "Protect what's yours," and "How many wrongs to make it right?" respectively. Along with Clive Owens' "Shoot 'Em Up," these revenge stories could easily double as advertisements for Shoot First legislation.

We can all learn a valuable lesson from the Amish community and change our commitment to violence to a commitment to peace. As Martin Luther King Jr. once said, "Forgiveness is not an occasional act: it is an attitude."