Another Exhibit Against Florida's Self-Defense Law Disintegrates


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.

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  2. It’s just funny to me how liberals–those great champions of the rights of the accused and not letting The Man stomp on the little guy–are so outraged that in cases involving possible self-defense the State is obliged to prove its case. Heh, I thought that was SOP in our system of justice.

    It gives me the impression that liberals would rather just outlaw self-defense period, if they could.

    1. why is that just an “impression?” The left has been fairly consistent regarding self-defense.

      1. Self defense is vigilante justice.

        I mean, there’s absolutely no difference between shooting an armed intruder in the act of robbing you, and hunting the guy down long after the fact and shooting him in cold blood.

        No difference at all.

      2. I’m being sarcastic.

  3. Sounds like Dooley is getting screwed.
    Displaying a holstered firearm in response to a threat of physical violence is “brandishing”?

    1. Uhh yes. It’s also a good way to die. If James had been carrying concealed, he could have shot him dead and had the law on his side. You don’t brandish your weapon unless you’re actually going to use it for self defense.

      Sounds to me like Dooley, being armed and figuring James was not, was running his mouth.

      1. There is no open carry in FLA?

        By this account Dooley did not draw the firearm until after James approached him in the heat of argument.

        Dooley didn’t fire until he was on the ground with James on top.

        1. Not “firing” until the other guy’s on top’s pretty much “SOP” isn’t it?

          Not that I would KNOW – I’ve just been told that. By a friend…

        2. No, there is no open carry in FL.

          Nowhere in the article does it say that Dooley was ever on the ground with James on top. Dooley claimed that James was trying to strangle him; a claim that is contradicted by three witnesses.

            1. I stand corrected.

    2. Displaying a holstered firearm in response to a threat of physical violence is “brandishing”?

      The article words it poorly, but I think the idea is that Dooley flashed the gun at James, James moved to grab the weapon, Dooley pulled it out, they fought a bit, then Dooley fired:

      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.

      I’m pretty sure I’d get arrested for flashing a gun at people during arguments, so if my interpretation is correct I can see the judge rejecting the Stand Your Ground claim.

      Also, it’s mindblowing that the article, after finding no judicial misapplications of the Stand Your Ground law, concludes with this:

      Lawyers … believe the law … has been misapplied in many cases and is now under intense scrutiny.

      1. It sounds like Dooley foolishly put himself into the situation but if the display (without un-holstering) was in response to a physical threat (the daughter testifying Dooley said he didn’t want to fight) he may not have been in violation of the law.

        Dooley doesn’t draw (according to all witnesses) until after James approaches him and doesn’t shoot until he is on the ground with James on top.

        1. Very poor judgment to flash your weapon with no intention of using it, and it mostly points to Dooley being the aggressor.

          1. He used it. I assume his display was to make his intention clear. That is apparently forbidden under Florida law.

            The girl’s testimony that Dooley said “he didn’t want to fight” points to her father as the aggressor.

            1. He used it once he had flashed it and the other guy was trying to defend HIMSELF by getting the gun away from him. If I was on the jury, he would have a long way to go to convince me that he wasn’t the aggressor.

              1. Trying to disarm someone of a weapon they aren’t pointing at you is a good way to end up dead, as James found out.

        2. He may very well get off on claims of self-defense, but I’m just saying this is the very kind of thing that I think should be sorted out by jury. If the judge is to keep it from ever reaching trial, I don’t think there should be this huge gray area.

  4. “justifiable homicides are up.”

    I’d be a lot more concerned if unjustifiable homicides were up.

    1. Since when is an increase in justifiable anything a problem?

      1. Because every one of the people killed in a justifiable shooting were truly repentent of the crimes they had been convicted of and right after they finished committing the crime that got them shot they were going to turn their lives around and become a model citizen.

        And guns are evul.

  5. Less eyewitness testimony contradicting his account? Less? Unless some huge thing has just broken there’s NO eyewitness testimony contradicting his account.

  6. I find it curious that no media coverage of this case (that I’ve seen) has pointed out that Dooley is black. (I only know that from seeing his picture.)

    Wonder why race was such a big issue in the Martin case and not here? Killer versus killee?

    1. Liberal racist attitude. ‘They’re so cute when they’re little.’ Hence the only pic of Martin in the papers was the one of a fourteen year old with a big winning smile.

      An every day looking black guy, not so much.

      Always wondered how Yaphet Kotto made it in liberal Hollywood where he never fit the clean, safe, Joe Biden approved image that makes that type gush with a sense of self approval.

      1. Think I have a smidgen of a reason for the last question. Most of his success came from working with East Coast and British producers who though liberal don’t have the idealized attitude you see in West Coast liberals.

      2. I just can’t picture David Simon at a cocktail party.

    2. Might be because someone was actually charged in this case.

      I know, I know, the liberal media is out to wage a war on the poor white man and the white race.

      1. Might be because someone was actually charged in this case.

        Might be, but isn’t. Your snark is useless and moronic when weighed against actual quotes from newspaper editors.

        Or maybe you just want to post a few more pictures of Zimmerman with his skin lightened by a few shades. They shouldn’t be hard to find. It’ll be the first three pages of a google image search.

  7. It sez …

    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.

    I sez … One of those Dooleys should not be like the other.

  8. Additionally, James was a decorated veteran who had just retired from the special operations. Take that for what you will, but in my experience, those guys don’t go around starting fights, but they will move towards a threat.

    1. The 69 y/o Dooley managed to avoid any criminal record for oh…69 years or he wouldn’t have had a totin’ license.

      Your “experience” is contradicted by the deceased daughter’s testimony. When someone announces “I don’t want to fight” it is usually in response to a challenge.

  9. Just going on the record here:

    I was wrong on this one. I had stated previously that I figured that even though he started the argument, he’d be covered under SYG. In my defense, I was unaware that the reports of choking weren’t corroborated by the witnesses.

  10. As long as there are humans, there will be some BS to argue about. Some people can’t be trusted with their own decisions, let alone having a gun. Get a Taser and lets all get over it.

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