Posted on July 18, 2013
The Death of Trayvon Martin
“Shoot first” laws (also known as “stand your ground” laws) gained national attention following the tragic death of 17-year-old Trayvon Martin in Sanford, Florida, on February 26, 2012. That evening, Trayvon was walking back to his father’s girlfriend’s house after buying candy and a drink at a nearby 7-Eleven when 28-year-old neighborhood watch volunteer George Zimmerman began following the unarmed teen, telling police in a 911 call from his car that Trayvon looked “real suspicious” because he was “just walking around looking about.” Zimmerman had been issued a state license to carry a concealed weapon – even though he had been previously arrested for battering a law enforcement officer and had been the subject of a domestic violence restraining order – and was carrying a hidden, loaded handgun. Zimmerman pursued Trayvon, despite the 911 dispatcher’s statement that Zimmerman did not need to do so, ultimately shooting and killing him.
When questioned by the Sanford police, Zimmerman claimed he was acting in self-defense, invoking Florida’s extreme shoot first law, which allows a person to use deadly force in a public place in self-defense, even if such force can be avoided by the person’s retreat. After much delay, and amid a nationwide call for justice, George Zimmerman was finally charged with second-degree murder on April 11, 2012. On July 13, 2013, a jury found George Zimmerman not guilty. The court had instructed the jury on Florida’s shoot first law and one of the jurors subsequently stated that the jury had found the law applicable to Zimmerman.
The Trayvon Martin case demonstrates that shoot first laws threaten public safety, particularly when combined with permissive laws governing the carrying of concealed weapons (like those in Florida and in most states). Shoot first laws encourage people to take the law into their own hands and act as armed vigilantes, often with deadly consequences. The laws also have a profound impact on the criminal and civil justice systems, tying the hands of law enforcement and depriving victims of remedies by providing blanket immunity from criminal prosecution and civil lawsuits to individuals who claim they were acting in self-defense.
Unfortunately, the gun lobby has aggressively promoted shoot first laws and a majority of states now have laws similar to the law in effect in Florida. In the aftermath of the death of Trayvon Martin, however, there has been a nationwide call for the reexamination and repeal of such laws.
In his remarks to the NAACP in the wake of the verdict on July 16, 2013, Attorney General Eric Holder observed that as a nation it is time to “question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods. These laws try to fix something that was never broken. There has always been a legal defense for using deadly force if – and the ‘if’ is important – if no safe retreat is available.” The Attorney General went on to encourage America to “examine laws…eliminating the common-sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely. By allowing and perhaps encouraging violent situations to escalate in public, such laws undermine public safety.” Finally, the Attorney General stressed that “we must stand OUR ground to ensure – we must stand our ground to ensure that our laws reduce violence, and take a hard look at laws that contribute to more violence than they prevent.”
Florida’s “Shoot First” Law and Its Deadly Aftermath
Under centuries-old legal principles, when a person is confronted with a possible threat to his or her safety in a public place, the person must retreat as much as is practicable before using deadly force in self-defense. Florida’s shoot first law radically departs from these traditional principles, providing that a person who reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm has no duty to retreat from a confrontation outside the home before engaging in deadly force.
As a result of Florida’s law, law enforcement agencies are prevented from arresting a person who used deadly force in self-defense unless the agency determines that probable cause exists that the force used was unlawful. The law may also be invoked by a criminal defendant in a pretrial hearing or at trial to avoid all criminal or civil liability.
According to a March 26, 2012 statement of the Association of Prosecuting Attorneys (APA), shoot first laws “give the killer immunity from prosecution. This blanket immunity is greater than the legal protections given to police officers who are involved in a shooting in the line of duty. This grant of immunity, both civil and criminal, can sharply undermine the ability of law enforcement and prosecutors to protect the public by prosecuting acts of gun violence.”
The APA has consistently raised concerns about shoot first laws, arguing that they inhibit the ability of law enforcement and prosecutors to hold violent criminals accountable, may encourage vigilante behavior, and, in some circumstances, may put law enforcement lives at greater risk.
The Tampa Bay Times has analyzed the Florida law extensively. The Times’ 2010 investigation found that the Florida law had been invoked in at least 93 criminal cases involving 65 deaths, including “deadly neighbor arguments, bar brawls, road rage – even a gang shoot-out – that just as easily might have ended with someone walking away.” A follow-up investigation in March of 2012 increased the total number of cases in Florida to 130, finding that “[i]n the majority of the cases, the person who plunged the knife or swung the bat or pulled the trigger did not face a trial. In 50 of the cases, the person who used force was never charged with a crime.” That investigation also found that “justifiable homicides” reported to the Florida Department of Law Enforcement had increased threefold since the law went into effect.
Another Tampa Bay Times report, released June 1, 2012, found that Florida’s shoot first law had “stymied prosecutors and confused judges,” and been used “to free killers and violent attackers whose self-defense claims seem questionable at best.” That report found that nearly 70 percent of those who had invoked the law had gone free.
The Tampa Bay Times continues to evaluate “Shoot First” cases. As of July 30, 2013, the newspaper had identified over 200 such cases. Of the cases involving a fatality, 40 had resulted in convictions, while 73 deaths had been found to be justified.
A Majority of States Now Have “Shoot First” Laws
Florida’s shoot first law was promoted by the National Rifle Association (NRA), and was adopted by the state legislature despite widespread opposition in 2005. Efforts to advance shoot first laws nationwide accelerated later that year, when the conservative, corporate-funded American Legislative Exchange Council (ALEC) adopted a model law bearing many similarities to Florida’s law. The ALEC model was developed in conjunction with the NRA, which has funded ALEC for years and, until 2011, co-chaired the council’s Public Safety and Elections task force that developed the model shoot first law.
Since 2005, a majority of states have adopted either part or all of the ALEC model law. After widespread outcry and the loss of a number of major corporate sponsors following the death of Trayvon Martin, ALEC announced in 2012 that it was disbanding the Public Safety and Elections task force. The NRA, however, shows no signs of ceasing its efforts to convince states to adopt dangerous, expansive shoot first laws nationwide.
Since 2005, twenty-six states, including Florida, have adopted shoot first statutes that generally permit the use of deadly force in self-defense in public places with no duty to retreat. These states are:
* In these states, the statute only applies when the shooter is in a vehicle.
Before Florida adopted its law, the State of Utah adopted the nation’s first shoot first law, permitting the use of deadly force in self-defense in public with no duty to retreat, in 1994. Thus, 27 states currently have shoot first laws.
Seven additional states – California, Idaho, Illinois, New Mexico, Oregon, Virginia, and Washington – permit the use of deadly force in self-defense in public with no duty to retreat through a combination of statutes, judicial decisions, and/or jury instructions. These states are distinct from true “Florida-style” laws in several respects, however. For one, many of the shoot first protections established in these states may only be invoked during criminal trials, as opposed to the Florida law and the ALEC model, which enable a shooter to escape liability in a pretrial hearing. Additionally, these states do not have some of the especially onerous elements found in the Florida law, such as the provision preventing law enforcement from arresting a shooter without probable cause that the force used was unlawful.
In Florida, Governor Rick Scott appointed a task force shortly after Trayvon Martin’s killing to review the state’s shoot first law. That task force concluded, in a report released on February 22, 2013, that no major changes were needed to the state’s law. A separate task force led by State Senator Chris Smith issued a report in April, 2012, however, recommending significant reforms, including the removal of the provision preventing the arrest of a shooter who claims self-defense, and the elimination or limitation of immunity for a shooter where the alleged attacker was unarmed or fleeing.
Several States Have Considered Adopting or Repealing “Shoot First” Legislation This Year
Increased public awareness about shoot first laws following the Trayvon Martin shooting led legislators in some states to consider repealing either part or all of their shoot first laws. New York City Mayor Michael Bloomberg and the leaders of a number of national African-American organizations launched “Second Chance on Shoot First,” a national grassroots coalition seeking the repeal or reform of shoot first laws across the country.
In 2013, legislators in seven states (Alabama, Florida, Mississippi, New Hampshire, North Carolina, Pennsylvania and Texas) introduced legislation to weaken or repeal their shoot first laws. The legislation has not yet passed in any of the states.
Twelve states (Alaska, Alabama, Colorado, Connecticut, Florida, Georgia, Iowa, Nevada, Oklahoma, Pennsylvania, Texas and West Virginia) introduced bills in 2013 that would establish or expand shoot first provisions. Of these states, only Alaska has adopted a bill expanding shoot first, removing the duty to retreat from any place the person using deadly force in self-defense has a legal right to be.
“Shoot First” Laws and Weak Concealed Carry Laws: A Deadly Combination
Shoot first laws become exponentially more dangerous when paired with laws that grant large numbers of people licenses to carry concealed firearms in public places. As noted above, Florida’s concealed handgun licensing law enabled George Zimmerman, who had been previously arrested for battering a law enforcement officer and had a restraining order issued against him, to legally carry a hidden, loaded handgun in public. Currently, thirty-seven states require law enforcement officers to issue concealed handgun licenses to individuals who meet very minimal requirements; four states even allow people to carry concealed weapons statewide without permits.
Trayvon Martin would not have been killed if George Zimmerman had not been carrying a gun. Zimmerman is not the only individual with a license to carry a concealed weapon who has killed an innocent person, however. An analysis of news reports by the Violence Policy Center has identified at least 502 people, including 14 law enforcement officers, killed nationwide by individuals with concealed handgun licenses since May 2007. Given the limitations of news reports, the actual number of individuals killed by concealed handgun licensees is likely significantly higher.
Unfortunately, the number of concealed weapons permit holders in Florida has grown dramatically since the state enacted its shoot first law. According to the Tampa Bay Times, “[a]s ‘stand your ground’ claims have increased, so too has the number of Floridians with guns. Concealed weapons permits now stand at 1.1 million, three times as many as in 2005 when the law was passed.”