The Last Gun (20 page)

At about 1:30
P
.
M
. on September 23, 2008—less than a year before Corporal Roberts was killed in Tampa—a Philadelphia police officer, Patrick McDonald, pulled over a car with a broken taillight. One of the occupants, twenty-seven-year-old Daniel Giddings, jumped out and ran. Giddings had a 45 caliber Taurus Millennium in his waistband. He had been released from prison about a month earlier and was already wanted for violating his parole and assaulting police officers. McDonald gave chase, caught Giddings, and the two men fought. In the course of their struggle, they exchanged gunfire. Like Corporal Roberts, Officer McDonald was killed by a powerful 45 caliber round fired from a Taurus Millennium handgun. Just as in the case of Roberts, the huge 45 caliber slug blasted through McDonald's shoulder and pierced his heart.
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Connecting the dots between weakened concealed-carry laws that have pumped millions of handguns into the United States and the resulting death and injury was not something that NRA executives Marion Hammer, Tanya Metaksa, and Wayne LaPierre; handgun manufacturers and importers; or anybody else in the gun lobby were likely to do. They would continue to divide the complex human world into “law-abiding citizens” inside their smugly righteous walls and “criminals” outside.

But there was a cloud over this Happy Valley and its neat division between law-abiding good guys and criminally violent bad guys. That cloud was raining on the gun market's growth potential. As previous chapters have documented, most people in America just aren't interested in having a gun around the home, much less inside (or outside) their waistbands. The gun lobby's challenge has been to persuade more and more Americans that they need to carry a gun in order to be safe. But there were also legal flies in the gun industry's marketing ointment, its dream of bringing back to modern streets the mythical gunslinging ways of the Old West.

Putting aside the moral questions inherent in going about armed—daring and perhaps hoping for violence to happen—there are long-standing, wisely developed limitations in law on killing other people, even in self-defense. Over the centuries since the Middle Ages, the English common law upon which American law is based has recognized that one has the right to defend oneself, including killing another in extreme cases. But the interests of a civil society have required that one asserting self-defense prove that a
reasonable
person would have feared death or serious bodily injury in the circumstances at issue. The common law has also required that—even in the face of such a reasonably perceived threat—one must avoid violence if possible. For this reason, the general rule has been that “one should first try to disengage or retreat, if attacked, which was often a prerequisite for a claim of self-defense.”
⁸⁰
This rule “places a priority on human life. It also reflects the notion that a person would rather retreat than kill their attacker and have to live with the consequences or, worse, accidentally kill an innocent bystander.”
⁸¹

An exception to this general duty to retreat—when one is
attacked
in one's own home—has been long recognized. In 1914 Benjamin Cardozo, then a judge on the New York State Court of Appeals and later an associate justice of the U.S. Supreme Court,
⁸²
stated this exception in
People v. Tomlins
, an often quoted New York case in which a man killed his own son during a domestic
altercation. “It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.”
⁸³
This exception has historically been known as the castle doctrine, referring to a statement by Sir Edward Coke, an English jurist in the seventeenth century, that “a man's home is his castle.”
⁸⁴
Even this castle doctrine, however, was not without limit. Judge Cardozo also noted in the classic case on the subject, “A man who is himself the aggressor or who needlessly resumes the fight, gains no immunity because he kills in his own dwelling.”
⁸⁵

In 2004, a legal advice column in the
Miami Herald
summed up the Florida law of armed self-defense, both in the home and elsewhere, as it stood at the time. The law then was consistent with the traditional common law.

With reference to when a person is justified in the use of deadly force, Florida Statute chapter 776 permits it “only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”

  
Usually a person is required to retreat in the face of threatened violence and avoid confrontation if possible, including when in their car. And they may not use lethal force after a crime has been completed or the criminal has surrendered. But the “retreat rule” gives way to the “castle doctrine” when one is attacked within their own home or place of business and allows the use of deadly force, if necessary
⁸⁶

The pivotal points here were the requirement of the defendant to prove reasonable fear, the duty to retreat and avoid violence if possible, and the precondition of being actually attacked in one's
home before the castle doctrine's right to stand one's ground applied. Even today, after decades of Florida's lawmakers weakening gun-control laws, Florida licensing authorities ironically—one might fairly say hypocritically—urge caution on their website:

Applying for a license to carry a concealed weapon or firearm for self-defense is a right of law-abiding Floridians. However, you must remember that a license to carry a weapon or firearm concealed on your person does not authorize you to use that weapon. Use of a concealed weapon or firearm is regulated by other provisions of Florida law.
⁸⁷

Those other provisions of Florida law as they existed in 2004 were exactly what the industry's “gun rights” alliance set out to gut. Hammer and her allies appropriated the language of the tightly drawn and sensible exceptions to the general common-law duty to avoid violence—the traditional castle doctrine and its limited permission to stand one's ground when attacked in the home—and distorted it into ideological slogans. Turning the law on its head, they twisted the terms
castle doctrine
and
stand your ground
from carefully crafted restrictions on lethal violence into mindless rhetorical banners that encourage carrying guns and using them to shoot people. Hammer once again badgered the Florida legislature into lowering the gun violence bar as a way into expanded handgun markets.

She did it by inventing a problem that did not exist.

According to Marion Hammer and her minions, law-abiding citizens who shot bad guys were being hounded by prosecutors and charged with criminal offenses while felons walked free. “Florida licenses law-abiding people to carry concealed firearms when they're out on the streets for lawful self-protection, but the courts have been taking away their right to protect themselves by imposing a duty to retreat,” Hammer claimed in 2005. “So if
a rapist tries to drag a woman into an alley, under current case law, and jury instructions that a judge gives a jury, that woman is supposed to try to pull away and run and could be chased down and stabbed in the back or shot in the back.”
⁸⁸

The fact that neither Hammer nor anyone else could cite a single case in which such a prosecution had ever happened to any self-defender anywhere in Florida did nothing to deter the next wave of laws hatched in the Florida gun violence incubator.
⁸⁹
The mutant forms of the venerable castle doctrine and stand-your-ground laws written into the Personal Protection Bill Florida enacted in 2005 bore little resemblance to the common-law originals. The new law eliminated the duty to retreat to avoid violence. It also:

       
•
  
Replaced the common law “reasonable person” standard with a “presumption of reasonableness” or “presumption of fear” in many instances. This shifted the burden of proof to prosecutors, who are required to prove a negative.

       
•
  
Extended the right to deadly self-defense from the old castle doctrine to areas outside the home. If a person's actions are covered by the “presumption of reasonableness,” that person can legally use deadly force anywhere that he or she has a right to be.

       
•
  
Broadened the circumstances in which one can legally respond with deadly force to include those in which only property is threatened and the threat is not imminent. This was a significant change from the common-law standard that only an imminent threat to a person justified deadly force.

       
•
  
Provided blanket civil and criminal immunity for a person using force as defined and permitted by the new law.
⁹⁰

The
Palm Beach Post
summed up the proposed new Florida law in 2005, as bills made their way through the Florida House and Senate:

The bills eliminate the “attack” requirement. They presume that if someone is illegally entering your home, that person has the intent to cause death or bodily harm. The current law requires that intent to be proved. The bills also would extend the Castle Doctrine to an attached porch or someone's vehicle, and to a lesser extent to a situation in public where someone fears for his or her life. But the bills do not extend the right to use force to shooting a police officer who has identified himself as such.
⁹¹

Marion Hammer's reading was more expansive. “The bill removes the duty to retreat if you're outside your home or in a public place,” she explained. “It only allows you to stand your ground and meet force with force, if you reasonably believe that force is necessary to defend yourself against death or great bodily harm.”
⁹²
State Senator Steve Geller, a Democrat from Hallandale Beach, argued against the bills. “We never said . . . that the street is your castle,” he said. “I don't think you ought to be able to kill people that are walking toward you on the street because of this subjective belief that you're worried that they may get in a fight with you.”
⁹³
But in a masterpiece of circular reasoning, Wayne LaPierre, the NRA's executive vice president, told the
New York Times
that the new law sent a good message to Florida's good citizens. “If they make a decision to save their lives in the split second they are being attacked, the law is on their side,” he said. “Good people make good decisions. That's why they're good people. If you're going to empower someone, empower the crime victim.”
⁹⁴

The new law twisted the common-law castle doctrine into a “shoot anywhere” rule—not only did one not have to retreat to avoid attack inside one's home, one no longer had to retreat from anywhere one had a right to be outside the home. And by legislatively decreeing the presumption of reasonable fear, the law turned the right to stand one's ground inside the home into the right to “shoot first” virtually anywhere. The clear legal
terminology of the common law was reduced to vague rhetorical slogans cast about by “gun rights” advocates. “Castle doctrine” and “stand your ground” came to mean virtually the same thing: the “right” of “good people” to shoot first anywhere they happened to be.

Florida's prosecutors were alarmed. The Palm Beach County State Attorney's Office pointed to a high-profile 2003 case in which a teenager had been shot and killed by a homeowner while playing a door-knocking prank with friends on his sixteenth birthday. The homeowner heard the teenager trying to tie a fishing line to the door knocker, got his 40 caliber handgun, and shot the youth to death—in the back. The homeowner pleaded guilty to a charge of manslaughter and was sentenced to spend fifty-two weekends in the Palm Beach County Jail and ten years of probation. “If this bill were in effect back then, that case would not be prosecuted,” a spokesman for the local state attorney said prophetically.
⁹⁵

Hammer brushed such warnings aside and lashed Florida's lawmakers into line. This time, she had the help of Democrats who were trying to align themselves with Republican values. “While perhaps [the bill] may go a little too far, it sends a message that Democrats believe in those same core values,” Democrat Representative Will Kendrick, a co-sponsor of the House version of the bill, said. “The majority of Democrats have gotten away from basic principles. They've realized they were way out in left field. I think some of them voted for this one in an attempt to get back to a balance.” Another Democrat, Representative Richard Machek, explained that he was in favor of the home and vehicle portions of the bill but opposed the part that allowed standing one's ground in the streets. “You don't have an option,” Machek said. “The problem was, if I was voting against it, I was voting against protecting yourself in your home. I hope I did the right thing.” Representative Dan Gelber said simply, “The NRA is a very powerful lobby and a lot of members don't want to cross it.” Even State Senator Steven Geller, a Democrat who led the charge
against the bills, ended up voting for them.
⁹⁶
“Voting against the Castle Doctrine, which is wildly popular and which does make sense . . . would be seen as, ‘Those Democrats are soft in [
sic
] crime,' ” he said.
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