« Clinton admin. gun plans | Main | Interesting 1866 case »

Editorial attacking Florida laws

The Daytona Beach News-Journal has an editorial attacking the Florida firearms laws. [Hat tip of Bruce Mills]

Let's take it one step at a time.

"The bad news: Florida's gun-crazy. The worse news: The ailment is contagious.

Since the spring of 2005, 15 states have adopted laws expanding the concept of self-defense to ludicrous -- and deadly -- proportions. Florida was the first to adopt the so-called "shoot first" or "stand your ground" law, which allows people to use deadly force whenever they feel threatened, so long as they are in a place they have a legal right to be. The new law erases any duty to try to get away, even if escape is possible."

A person under criminal attack, and who has reasonable fear they would be killed or maimed, shoots the attcking thug. Now can't be prosecuted on the theory that they could have escaped.... so why is that a bad thing? I suppose newspaper's sympathies are with the criminal who got hurt. Mine tend to be with the victim. Take your pick.

As Don Kates has pointed out with regard to another article, "Among the highly misleading things in this article is that the ordinary reader will probably never realize that the retreat rule has always been the minority rule in the U.S. So instead of a horrible earthshaking change taking place, all that is happening is that the legislatures of at most 15 states have adopted what was already the rule in most states."

"And it blocks any liability for innocent bystanders. If a person is aiming his gun at a potential assailant but hits a 5-year-old girl instead, he still can't be arrested or prosecuted -- no matter how reckless he was. He also has immunity from civil suits."

I'd have to examine the law closely to see if that was the result. But in any event, how can one be reckless in that situation? Perhaps if, with an onrushing thug, the victim put his hand over his eyes and emptied a magazine in the assailant's general direction. If that has happened in the history of this Republic, it hasn't come to my attention. Gimme a break, editor!

"Over the past year, it's become clear that the law -- pushed by the National Rifle Association, but applicable to any deadly assault -- makes it tougher for prosecutors. To obtain convictions in cases where an assailant claims self-defense, prosecutors must prove, usually months after the fact, what a shooter was thinking when she or he pulled the trigger."

That's one thing the law did NOT do. Before and after, self-defense required proof that the defender believed they were under deadly attack, and that that was a reasonable belief. So prosecutors already had to prove, at trial months down the road, whether the defender had a reasonable belief at the time.

"When the law was passed, opponents predicted it would become a shield for warring gang members in drug disputes. That claim was dismissed as nonsensical -- until a drug dealer was lured to a Lexington, Ky., apartment by a man who owed him money and beaten to death with a lamp.

Two years ago, James Adam Clem, 27, would have faced homicide charges. But since Kentucky had passed a law identical to Florida's, prosecutors would have had to prove that Clem wasn't in fear for his life. The fact that he was able to club his victim to death, rather than shooting him, made no difference. Instead of going to trial, Clem got a favorable plea deal earlier this month, and may be eligible for parole by Christmas."

To be precise: the judge refused to dismiss the case, based on the law. He plead to manslaughter. His claim was that the guy had assaulted him (and, presumably, tried to kill him). There were no eyewitnesses.

The castle doctrine itself didn't play a role (the guy hadn't broken in). Retreat wouldn't have played a role, since Kentucky has never had a retreat requirement.

With or without the law, odds of getting a murder conviction on those facts are pretty slim. Even if you disprove self-defense, in a fight like that the jury is probably going to go with voluntary manslaughter. So the prosecution took what it'd probably get anyway. This is a case that turned out the way it would have turned out anyway, but the editorial blames it on the statute.

[I see a lot of complaints that the new law in KY was badly drafted, and that may be the case. If so, it merely points out that laws should be well-drafted, not that the idea itself was flawed]

"The Orlando Sentinel documented 13 shootings in Central Florida where the new law may come into play. In another case, a New Port Richey prostitute is using the new law as a defense against charges that she shot and killed her 72-year-old client after taking his gun away from him.

Because the state doesn't keep track of shootings, there's no statewide total -- but the early figures suggest that it would be daunting as more people learn about the major loophole in the law."

I blogged the Orlando Sentinel article here. Yep, there were 13 self-defense arguments where the law might come into play. Five persons have been cleared so far (one under investigation was an off-duty officer -- the castle doctrine laws protect law enforcement, too).

As far as the prostitute goes, Don Kates took that case apart here. "Her story is that her elderly client pulled a gun declaring that he was going to kill her and then himself. She wrests the gun away from him and then shoots him rather than fleeing. Even under the retreat rule one is only required to retreat if ths is clearly possible. Under these circumstances she was privileged to shoot rather than run away taking the chance that this homicidally desperate man can jump on her and get the gun."

I note the ediorial omits the fact that the client had pulled a gun on the lady of the evening and threatened to kill her, instead making it sound as if she just decided to whack a client (which is bad for business, of course).

"Right before the law became effective Oct. 1, the Brady Campaign to Prevent Gun Violence launched a campaign warning tourists of the dangers of the new law. The campaign included ads in key "feeder" markets like Chicago, Detroit, Boston and the United Kingdom, and fliers distributed at Florida airports reading "An Important Notice to Florida Visitors." Under the heading of "sensible precautions," the fliers urged visitors to "not argue . . . with local people.""

As I noted in an earlier posting, Brady is having a bit of trouble here, since Florida's crime rates have fallen to the lowest level in 35 years. "A telephone message left for comment after hours with the The Brady Center to Prevent Gun Violence in Washington, D.C. was not immediately returned."

"The Brady Campaign can't single Florida out any more. Expect other states to see an escalation in unprosecutable shootings.

The spotlight may veer away from Florida, but the fact remains that this state was the first to enact this dangerous and bloody law. Florida can get national headlines again -- for the right reason -- by being the first state to tear up this virtual get-out-of-jail-free card."

· media