Two years ago, the Tampa Bay Times ran a story that has been widely cited since George Zimmerman's February 26 shooting of Trayvon Martin in Sanford, Florida. "Five years since Florida enacted 'stand-your-ground' law," the headline announced, "justifiable homicides are up." That trend in itself, of course, does not tell us whether the 2005 changes to Florida's self-defense law, which included eliminating the "duty to retreat" for people attacked in public places and beefing up the "castle doctine" for people facing intruders in their homes, were wise or misguided. In fact, if justifiable homicides had not increased, that would suggest the amendments had not affected the disposition of criminal cases, and one might reasonably wonder why it was necessary to change the law. But the Tampa Bay Times put a decidedly sinister spin on the increase in successful claims of self-defense, suggesting that the law had "cheapened human life," encouraging unnecessary escalations of violence and enabling people responsible for them to avoid punishment. Its leading example was a a September 2010 altercation at a Valrico park in which 69-year-old Trevor Dooley killed his 41-year-old neighbor David James by shooting him in the chest. Dooley had been charged with manslaughter, but the paper suggested he would avoid prosecution by arguing that he reasonably believed deadly force was necessary to prevent Dooley from killing or seriously injuring him. The final sentence said: "Whether he is punished for gunning down a father in front of his daughter in a park on a sunny Sunday afternoon will more than likely come down to what he says he was thinking in those few seconds before a man died."
Actually, no. As the same paper reported yesterday, a judge rejected Dooley's self-defense claim after a pretrial hearing, meaning he will be prosecuted for manslaughter. It is not hard to see why. Dooley and James, who was playing basketball at the park with his 8-year-old daughter, got into an argument after Dooley told a teenager he was breaking park rules by riding his skateboard on the basketball court and James intervened on the skateboarder's behalf. Here are details that emerged at the pretrial hearing, where Dooley had to show "by a preponderance of the evidence" that his use of force was justified:
Danielle James, now 10, said she remembers little about the shooting. She remembers Dooley saying he didn't want to fight. She doesn't remember seeing a gun, or hearing threats. What she remembers most was a gunshot.
In his own testimony in February, Dooley admitted shooting James. He said he had no choice, that James had a hand around his throat. "He was killing me," Dooley testified. "My finger was on the trigger. I shot."
But three witnesses, including the 14-year-old skateboarder Dooley was trying to shoo away, testified that Dooley first flashed a gun at James, then pulled it from his pants when James stepped toward him. They said they didn't see James choke Dooley. They said James tried to wrest the gun away.
Hillsborough Circuit Judge Ashley Moody concluded "there was no reasonable belief that deadly force was required." She found that "Mr. James was justified in grabbing [Dooley] because defendant had reached for and pulled out a gun to confront Mr. James." Although Dooley had a concealed carry permit and had a right to be in the park, she said, he broke the law by brandishing his gun without cause. If so, he was "engaged in an unlawful activity," meaning that under Florida's law he lost his right to stand his ground, which in any case does not seem relevant to his defense. If James really was strangling Dooley (which witnesses say they did not see), James did not have the option of safely retreating. Likewise in the Trayvon Martin case if we believe Zimmerman's account (a big if), since he says the teenager was on top of him, slamming his head on the pavement, when he fired his gun. Zimmerman also says he worried that Martin might grab his gun, but the Dooley case shows that even if Martin had done so, it could be viewed as an act of self-defense, depending on the circumstances.
One unsual aspect of Florida's law that does figure in both of these cases is the right to present a self-defense claim at a pretrial hearing (which the Florida Supreme Court ruled is necessary because the law says someone who uses force in self-defense "is immune from criminal prosecution"). That opportunity allows a defendant with a plausible story and strong evidence supporting it to avoid prosecution, on the theory that going through a trial is itself a kind of punishment and should not happen automatically. But since a defendant can get charges dismissed only by convicing a judge it is more likely than not that his use of force was justified (a burden Dooley clearly could not meet), this mechanism should not prevent any trials where the government has enough evidence to prove beyond a reasonable doubt that the defendant's use of force was not justified. Since Dooley already has admitted he deliberately fired his gun and therefore cannot claim it was an accident, a defense attorney tells the Tampa Bay Times, his best option for raising reasonable doubt "is to create the impression in each juror's mind that the victim was an aggressor, that he made some kind of movement." Dooley may yet be acquitted, since at his trial the burden of proof will shift to the government and the standard of proof will be considerably higher. But these are basic elements of our criminal justice system, not innovations that Florida introduced in 2005.
To assess the impact of the 2005 revisions, of course, you have to look beyond one or two cases. There are other examples of self-defense claims that seem questionable (some of them cited by the Times), and maybe some people are getting away with murder (or assault) as a result of the changes. But in each case, you have to look at all the relevant details and ask whether the outcome really was affected by the new provisions and, if so, whether the fault lies in the law itself or in its application. (The case of Marissa Alexander, who last Friday received a 20-year mandatory minimum sentence for firing a warning shot to scare off her abusive husband, shows that misapplication of the law does not necessarily help defendants.) In Zimmerman's case, the local prosecutor did not think police had probable cause for an arrest, but six weeks later a special prosecutor decided they did, so either further investigation turned up more evidence or one of those prosecutors is wrong. It seems unlikely that Zimmerman will prevail at a pretrial hearing, but he probably has a better chance of being acquitted than Dooley does, since in Zimmerman's case there was physical evidence of a violent struggle preceding the shooting and there seems to be less eyewitness testimony contradicting his account. Whether or not Zimmerman is convicted, it is hard to see how the outcome can be attributed to unusual aspects of Florida's self-defense statute, even though the case is routinely presented as damning evidence of the law's tragic consequences.
Previous coverage of the Trayvon Martin case here.