Written Testimony of the Law Center to Prevent Gun Violence

Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights

“Stand Your Ground” Laws: Civil Rights and Public Safety Implications of the Expanded Use

of Deadly Force

September 17, 2013

The Law Center to Prevent Gun Violence (“the Law Center”) is pleased to provide this written

testimony to the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human

Rights for its September 17, 2013 hearing, “Stand Your Ground” Laws: Civil Rights and Public

Safety Implications of the Expanded Use of Deadly Force.

The Law Center was formed by lawyers, originally as Legal Community Against Violence, in

response to a horrific assault weapons massacre at a law firm at 101 California Street in San

Francisco in 1993. After mobilizing the Bay Area legal community to support enactment of the

1994 federal assault weapons ban, the Law Center began concentrating its efforts on state and

local gun laws. The Law Center currently provides free assistance to state and local

governments seeking to adopt or defend laws to reduce the more than 100,000 gun-related deaths

and injuries that devastate American communities each year nationwide.

As set forth below, so-called “stand your ground” laws significantly threaten public safety

because they frustrate the ability of law enforcement to prosecute criminals, encourage vigilante

behavior, and deprive victims of remedies. Because such laws are most dangerous when coupled

with weak laws governing the carrying of concealed weapons in public, Congress should avoid

enacting any new federal legislation that would force states to recognize concealed weapons

permits issued in other states.

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FLORIDA’S “STAND YOUR GROUND” LAW AND ITS DEADLY CONSEQUENCES

In 2005, the State of Florida adopted its now infamous “stand your ground” law (also known as a

“shoot first” law) despite widespread public opposition. The statute, which was promoted by the

National Rifle Association as part of its ongoing efforts to weaken gun laws across America,

radically expanded the circumstances under which an individual claiming self-defense could

avoid criminal and civil liability for the use of deadly force in public.

Under traditional legal principles – which have been in effect in America for centuries – people

have the right to defend themselves through the use of deadly force in the home, and outside the

home if their safety is threatened and they cannot escape the situation. The Florida law, however,

dramatically departed from these well-established legal principals by allowing a person to use

deadly force in a public place in self-defense, even if such force could be avoided by the person’s

retreat.

The Florida law contains other dangerous provisions. First, law enforcement agencies are

prevented under the statute from arresting a person who claims the use of deadly force in self-

defense without probable cause that the force used was unlawful. Second, the law may be

invoked by: 1) a criminal defendant in a pretrial hearing and/or at trial to avoid all criminal

liability; and 2) a defendant in a civil lawsuit at any time during the proceedings to avoid all civil

liability.

The Florida statute gained national notoriety in 2012 after George Zimmerman shot and killed

17-year-old Trayvon Martin as the unarmed teen walked home from a nearby 7-Eleven in

Sanford. The facts are well known. Zimmerman, a neighborhood watch volunteer, had told

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 the teen.

Zimmerman claimed that he was acting in self-defense and sought cover under Florida’s shoot

first law. In response to a national outcry when the Sanford Police Department initially failed to

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charge Zimmerman with any crime, the Department finally charged him with second-degree

murder on April 11, 2012. On July 13, 2013, a jury found Zimmerman not guilty. The jury had

received instructions from the court on Florida’s stand your ground 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 significantly threaten public safety,

encouraging people to take the law into their own hands and act as armed vigilantes, often with

deadly consequences. Shoot first 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.

The Tampa Bay Times has analyzed the Florida law extensively and documented its deadly

impact. 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 August 10, 2013, the newspaper had identified over 200 such

cases. Of the cases involving a fatality, 44 had resulted in convictions, while 75 deaths had been

found to be justified.

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MOST STATES NOW HAVE “STAND YOUR GROUND” LAWS

Unfortunately, the gun lobby has aggressively promoted shoot first laws nationwide and a

majority of states now have laws similar to the dangerous law in effect in Florida. Efforts to

advance shoot first laws accelerated after Florida adopted its law in 2005 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.

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, 26 states (including Florida) have adopted either part or all of the ALEC model law,

allowing people to use deadly force in self-defense in public, even if it can be avoided, and

providing blanket criminal and civil immunity. These states are:

Alabama Michigan Oklahoma

Alaska Mississippi Pennsylvania

Arizona Missouri* South Carolina

Florida Montana South Dakota

Georgia Nevada Tennessee

Indiana New Hampshire Texas

Kansas North Carolina West Virginia

Kentucky North Dakota* Wisconsin*

Louisiana Ohio*

* In these states, the statute only applies when the person claiming self-defense is in a vehicle.

Before Florida adopted its law, the State of Utah adopted the nation’s first law permitting the use

of deadly force in self-defense in public with no duty to retreat in 1994. Seven additional states -

California, Idaho, Illinois, New Mexico, Oregon, Virginia, and Washington – currently 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-

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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. Although 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, recommending significant

reforms, including: 1) the removal of the provision preventing the arrest of a person who claims

self-defense; and 2) the elimination or limitation of immunity where the alleged attacker was

unarmed or fleeing.

“STAND YOUR GROUND” LAWS ARE PARTICULARLY DEADLY WHEN COMBINED WITH WEAK

CONCEALED CARRY LAWS

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. Trayvon Martin would not

have been killed if George Zimmerman had not been carrying a gun. Weak concealed weapon

laws combined with shoot first laws create dangerous opportunities for everyday conflicts to

escalate into lethal events.

Unfortunately, as a result of a three-decade campaign by the gun lobby, state laws regulating

who may carry concealed, loaded handguns and where they may carry them are more permissive

than ever before. 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.

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An analysis of news reports by the Violence Policy Center has identified at least 516 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.

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.”

CONGRESS SHOULD REFRAIN FROM ENACTING ANY FEDERAL STATUTES THAT WOULD

EXACERBATE THE IMPACT OF “STAND YOUR GROUND” LAWS

Given the threat to public safety created by shoot first laws, Congress should resist the continued

efforts of the gun lobby to make any changes to our federal gun laws that would aggravate the

problem. Specifically, Congress should avoid the adoption of any law forcing states to recognize

concealed weapons permits issued in other states.

Under existing federal law, each state may regulate the carrying of concealed handguns within its

borders. Most states have some form of permitting or licensing requirement for concealed carry,

with widely varying standards regarding who may carry concealed, what type of training is

required, and where concealed carry may legally occur.

Existing law allows individual states to enter into reciprocity agreements with other states,

permitting those with licenses from one state to carry concealed in any other state that is party to

the agreement. Such agreements require the consent of all states involved, however. No federal

law currently requires a state to recognize the validity of a concealed carry permit from another

state.

Emboldened by its successes in state legislatures nationwide, the gun lobby is now pressuring

Congress to adopt “forced reciprocity” legislation, however. Federal reciprocity would force

states that issue concealed weapons permits to recognize every other state’s permits, eviscerating

state authority to restrict who may carry guns within their borders. Importantly, nine states –

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California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New York, Oregon, and

Rhode Island – do not recognize permits issued by any other states.

Forcing states to recognize permits issued by other states is dangerous because of the significant

gap between states with strong permitting laws and states with extremely weak ones. Some

states, for example, prohibit a wide variety of convicted criminals from acquiring concealed

weapons permits, while others do not. In California, individuals may not acquire concealed

carry permits if they have been convicted of any of a wide variety of violent or firearm-related

misdemeanors, including assault, battery, and unlawful possession of a firearm in a school or

government building. In Arizona, in contrast, almost anyone who has not been convicted of a

felony may acquire a concealed carry permit.

With concealed carry reciprocity, states like California would be forced to allow criminals

convicted of violent or firearm-related crimes – who would be unable to qualify for in-state

concealed weapons permits – to carry concealed, loaded weapons in public.

In addition, in a majority of states, applicants may receive concealed weapons permits without

having shown any legitimate need to carry a weapon in public. Other states afford law

enforcement agencies important discretion over the issuance of concealed carry permits. For

example, in New Jersey, permits may only be issued to individuals who demonstrate a justifiable

need to carry a handgun. In Ohio, in contrast, law enforcement is required to issue permits to

any applicant who meets minimum threshold requirements, regardless of whether the applicant

can demonstrate need. Federal reciprocity would force a state to recognize permits issued to

individuals with no need to carry, even if the state requires its own residents to demonstrate some

sort of legitimate need.

State laws also vary greatly on the extent to which applicants must undergo firearms training and

what that training must entail. For example, in Delaware, an applicant for a concealed weapons

permit must complete a firearms training course that includes instruction on the safe handling

and storage of firearms, conflict resolution, and federal and state laws regarding the possession

of firearms and self-defense. State law requires that training also include live fire shooting

exercises on a range, including the expenditure of at least 100 rounds of ammunition. In

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Virginia, in contrast, an individual may complete the required firearms training course online,

and may receive a concealed carry permit without ever having even touched a handgun. In

Mississippi, no firearms training whatsoever is required in order to get a concealed weapons

permit. Forced reciprocity would compel states that require residents to undergo extensive

firearms training to allow untrained or poorly trained individuals from other states to carry

concealed weapons within their borders.

On every major permitting question – who is prohibited from acquiring a permit, what kind of

need an individual must show to get a permit, and what kind of training is required – good state

laws would be overruled by bad ones under forced reciprocity, creating a dangerous “lowest

common denominator” standard for concealed weapons permits.

Finally, federal reciprocity legislation would force states to give preferential treatment to out-of-

state residents, since residents in states with restrictive standards for concealed carry would have

to comply with those standards, while out-of-state residents with a concealed carry license from

their home state would not. Congress should resist creating such inequities in the issuance of

concealed carry permits, particularly given the threat created by the combination of lax

concealed carry laws and shoot first laws.