The Next Fifty-Four
The Tampa Bay Times published a
database of information about people who have supposedly invoked Stand Your
Ground laws. I have been going through
it to determine if it was invoking one of two unusual features of Florida
legislation: 1) the abolition (mostly) of the duty to retreat, which I refer to
as SYG-no-retreat, and 2) the institution of the right to a hearing before
trial to determine if you are immune because you acted in self-defense, which I
refer to SYG-immunity. At least that was
my analysis until today. Then I noticed
a third quirk in Florida law.
You see, in the process of
reviewing the law, particularly Fl.
Stat. §776.013,
I realized a major mistake in my analysis.
Up until now, I had been stating that there were two unusual features in
Florida law ushered in by the Stand Your Ground legislation. But in fact there is a third unusual feature. You see Florida law has a relatively ordinary
presumption that you are reasonably in peril of death or great bodily harm to
yourself or another, if:
The person against
whom the defensive force was used was in the process of unlawfully and
forcefully entering, or had unlawfully and forcibly entered, a dwelling, [or] residence...
or if that person had removed or was attempting to remove another against that
person’s will from the dwelling [or] residence[.]
In other words, if a person is
breaking into your house, you generally have a right to shoot. If someone is dragging your child out of your
home, you have a right to shoot. At
least in Florida. Check local laws, etc.
The person against
whom the defensive force was used was in the process of unlawfully and
forcefully entering, or had unlawfully and forcibly entered, a[n]... occupied
vehicle, or if that person had removed or was attempting to remove another against
that person’s will from the... occupied vehicle
All I did different there was
skip over the words about a dwelling or residence.
So many cases were plainly decided
by appealing to this apparently unrebuttable presumption in the law that you
are allowed to use deadly force to prevent a person from breaking into your
car, against a person who has broken into your car, who is trying to drag you
out of your car, or who had dragged you out of your car. Fortunately, all the previous cases do not
appear to have involved that fact pattern.
But it will be several times in this post. I will refer to it as the “SYG-vehicle rule”
and I will bring it up when it seems relevant.
Anyway, so I have been going
through each case and seeing if any of the relevant SYG doctrines apply, in
order to determine if the case is arguably about Stand Your Ground in any form,
or is it a more classic case of self-defense.
So I have already completed fifty
four of these in the last two posts, and now I will do fifty four more. I
suggest you read my prior posts first, because I am going to refer freely to my
findings there as though you had.
And one more thing before I
start. One thing that became obvious
when studying the Tampa Bay Times’ database is that they were being very
arbitrary in deciding whom they called Hispanic or not. On one hand, they called George Zimmerman
Hispanic. On the other hand there are
many people that society would almost certainly construct as Hispanic that the
Tampa Bay Times are labeling white. And
there are some where you suspect that they are doing this, but you are not
sure. So expect me to note that now and
then.
As I have said repeatedly, race
doesn’t actually matter, but racism does.
So the most useful definition of race is focused on the differing
treatment it is likely to inspire.
So let’s dive in again, again
naming cases by the first victim listed.
This is the latest example of the
confusion over ethnicity. It involves a
black man shooting two “white” men, Rolando Carrazana, pictured here:
And Jason Jesus Gonzalez,
pictured here:
I suspect society would construct
them as Hispanics, but I report, you decide.
It is also a pending case. The alleged killer, Gabriel Mobley, had a
gun. The victims were unarmed. So as with most pending cases, I won’t
comment overly much, but I will point out that this
article gives a better picture of why Mr. Mobley may have been acting in
self-defense than the Tampa Bay Times database indicates.
And while the case isn’t over,
apparently he was denied SYG-immunity.
This is black on black violence,
involving a killer armed with a gun (Terry Tyrone Davis Jr.), and an unarmed
victim. The two had been arguing on and
off for a while. Before the fatal
encounter Davis texted to his girlfriend that he was going to kill Gooden. And then when they showed up for a fistfight,
he did shoot him.
He sought SYG-immunity and was
denied. Since this was on his yard, he
would likely been invoking the SYG-no-retreat rule. He pled guilty to second degree murder and
was sentenced to twenty-five years.
A white woman killing a black
man, and both were armed. Perhaps Sean
Connery should have said, “never bring a bow to a gunfight” because the victim,
Harris, had a bow, and the killer, Tabbatha Nussbaumer had a gun. Tabbatha also is a reserve Florida Highway
Patrol trooper, off duty. That is likely
to have colored how the case was seen.
Basically she came out of the
shower to discover there was an intruder in her house, with the bow and
arrow. Her 9 year old son was there,
too. He asked her where her money was
and she told him it was in the truck in a probable lie. She led him outside to it as he stripped off his clothes. Naturally she had a handgun hidden in the
truck and turned around and more or less tried to arrest him. He continued to approach her so she shot him
once.
You can read more about the case,
here.
She was not even charged, which
given that presentation shouldn’t surprise anyone. If an off duty trooper shoots a naked man
with a weapon, you are 90% of the way to reasonable doubt right there.
One issue that isn’t clear is if
he kept the bow and arrow drawn and pointed at her the entire time. If he did, then I think its hard to argue
that she could have retreated if she had to.
But as we will see going on, according to a Florida lawyer friend of
mine, law enforcement officers are always treated as law enforcement
officers. A cop doesn’t have a duty to
retreat in Florida and I don’t believe they have such a duty in most other
states. So SYG-no-retreat doesn’t apply.
Since she was not charged, there
were no need for a SYG-immunity hearing.
Bluntly, this case doesn’t belong in the database.
White guy on white guy violence,
with an unarmed victim and a killer, Charles Podany, who had a gun. This bears some resemblance to the Martin
case. Podnay saw a truck speeding
through his neighborhood and call the police.
They asked what the license plate was, so he got on his bike and tracked
it down to a house where it was parked.
Landes was a passenger in the truck and he attacked Podnay and basically
beat the hell out of him. So Podnay shot
him.
The judge ended up granting him
SYG-immunity. And since this was not his
home, SYG-no-retreat would normally apply, but this
article suggests another parallel to the Zimmerman case: Landes was on top
of Podnay when he shot. So like the
Zimmerman case, SYG is not really involved here. Even if he had a duty to retreat he couldn’t
have done so.
Two black alleged killers, both
armed with guns, named Xavious McCray, Lavelton Williams. They allegedly killed two unarmed black men,
Howard and Andre Lamar Jackson. And what
is unusual for me to categorize is that the case is only pending for
Williams. McCray already pled guilty to
the lesser charges of aggravated assault and illegal possession of a firearm by
a felon.
But despite the fact that much of
the case is pending, I can say two things for sure. First, there was a failed attempt at a
SYG-immunity hearing, and further the judge found that both men had a duty to
retreat because they were both illegally possessing their guns. As I have noted regularly, Florida law
requires you to retreat if the defendant was engaged in unlawful activity, and
unlawful possession of a gun counts as unlawful activity. So Mr. Williams might still win his case, but
win or lose, it will have nothing to do with SYG-no-retreat.
This is a black man killed by an
alleged white man, named Emanuel Rivera, who looked like this:
I could see society constructing
him as black or Hispanic. I don’t see
where they get “white” from. Otherwise
the case is pending and while the facts suggest that he was dealing drugs when the
shooting occurred, which would negate SYG-no-retreat, I don’t feel comfortable
drawing any conclusions yet.
Another case of black on black
violence, with both the victim (Moore) and the killer (Maurice Moorer) being
armed. I am going to refer to them by
their first names to make it easier to keep track of them given how similar
their last names are.
Eddy was the boyfriend of
Maurice’s ex-wife. Eddy was in his car
when Maurice approached. Maurice claimed
to see him reach for his gun, so he shot Eddy fifteen times.
Indeed, you can get a much more
fulsome, if unverified, account here,
from his defense attorney extolling the virtues of Stand Your Ground. It makes for interesting reading.
In any case, Maurice was not
charged, so no SYG-immunity applied.
Since it was not in Maurice’s dwelling, SYG-no-retreat would apply. And since there was no attempt to break into
the car, etc., the SYG-vehicle rule doesn’t apply.
Another black on black case,
involving and armed alleged victim (Samuel) and an armed alleged killer, Terry
McKeliver, both with guns. The database
says that the case is pending, but it has been “pending” for over a year with
no one even charged. Since too many
facts are up in the air to make any judgments, I won’t be.
White man, armed with a knife,
Craig Sandhaus, killed unarmed Hispanic male (Torres). Other than that the case is pending, although
I will note that SYG-immunity was denied.
Beyond that, I don’t feel comfortable commenting on it.
Another black on black violence
case, with killer wielding a gun (Jimmy Hair) and the victim being
unarmed. The short version is that there
was an argument outside a nightclub.
Harper kept trying to enter and fistfight with Hair and another man in
the car. A third man kept pulling Harper
out, after which he would escape and come back in the car.
The unusual feature in this case
is that it was actually decided by a court
of appeals, where they decided as a matter of law Hair was entitled to
statutory immunity. What they found was
that the shooting part was accidental, that his intention was purely to beat
Harper with the pistol and it accidentally went off. So the court didn’t even think he
intentionally applied deadly force.
Further, the court was plainly applying the SYG-vehicle rule. The court wrote that “Harper, the victim, had
unlawfully and forcibly entered a vehicle occupied by Germinal, Hair, and a
third person in the back seat.” They
plainly felt he was entitled to a conclusive presumption he believed he was in imminent
danger of death or great bodily harm, justifying deadly force.
The SYG-no-retreat rule seems to
have applied, as well. And of course
SYG-immunity was granted. So this is a
rare trifecta where all three doctrines apply.
This would be a white man, armed
with a gun, killed by a Hispanic man, Anthony Gonzalez Jr., also armed with a
gun. Or so the database says. Then if you look at this flyer
used in the case, Henry is clearly a black man.
Essentially the story is about a frickin’ car chase in the streets of
Miami, both men exchanging gun fire.
After a motion for SYG-immunity and before the judge decided, the pled
the case down from Second Degree Murder to Manslaughter. He was sentenced to three years in prison.
So SYG-immunity was invoked and I
suppose had some success. Gonzales was
only a passenger, so how exactly could he have “retreated”? But for now I will trust in the Tampa Bay
Times description that he could have retreated.
This is an unarmed black man
being killed allegedly by two other black men, Earl Jackson, Dervaunta
Vaughn. In this case, Miller was just a
bystander caught in the crossfire. They
didn’t claim any need to defend themselves against Miller, but instead claimed
he was accidentally shot while defending themselves against others.
As I mentioned in relation to
Shervadia Jenkins according to Wayne R. LaFave and Austin W. Scott, Jr. Criminal Law 462 (2d Ed, 1986) the
typical rule is that if you are acting in lawful self-defense, you are only
held liable for the injuries to third parties if you were acting
recklessly. (Do consult your local laws
on this subject and wholly apart from any legal duty, if you have to defend
your own life or another’s exercise great care that you don’t harm anyone
else.)
Both men sought SYG-immunity and
it was denied. The SYG-no-retreat rule
didn’t apply because they were both felons in unlawful possession of firearms.
The Tampa Bay Times recordation
of outcomes is strange here. Jackson
went through a full trial and was acquitted from murder charges but found
guilty of unlawful weapon possession.
Vaughn, meanwhile, worked out a plea deal to the same charges and was
not charged with murder, in exchange for testimony. So they list Vaugh as having a “plea” as his
outcome, but list Jackson as having charges dismissed. I think the answer is both cases is that they
were found not guilty of murder, but convicted of unlawful possession of a
firearm, which they were probably really obviously guilty of.
Unarmed Hispanic victim shot by a
white male named Samer Hasan. He was
acquitted but all of this was before SYG was passed. So what is it doing on the list at all? I am not including it.
Black victim with a gun, killed
by black killer with gun, David Justin Wilson.
Wilson was a repo man, trying to take back a car owned by a third
party. Williams objected to this and
tried to intervene. There is no question
Williams shot a few times in Wilson’s direction, and no question Wilson shot
and killed Williams. There is some dispute
as to who fired first.
Who fired first would determine
whether SYG-no-retreat is likely to be relevant. If Wilson fired first, he would have to argue
that he believed that Williams was about to use deadly force against him. That situation might have afforded him time
to retreat if he was legally required do.
On the other hand, if Williams
was shooting first, then there would probably have been no safe retreat. He could have just shot back. So the information is not clear enough to determine
if it is a SYG-no-retreat case or not.
Further, since he was never charged there was no SYG-immunity hearing.
I’m going to leave it out of the
database due to poor data, and because it seems unlikely that he could have
retreated if he was required to.
White unarmed man killed by white
guy, Steven Anthony Thompson, with a gun.
Two men staying at a hotel for work and got into a fistfight in the
room. Thompson at one point retreated to
the corner of the room. He claimed
Barter charged him and he was afraid he would be beaten to death. So he grabbed his gun and shot him.
He was ultimately acquitted. But SYG-immunity was denied. At the same time, he couldn’t retreat, so SYG-no-retreat
is irrelevant.
This was about a white guy, who
looked like this...
...who was armed with a gun,
being shot by a black guy named Demarro Battle.
Or so it says in the summary. The
two men got into an argument at a party outside Bonilla’s home. Bonilla drew his gun and fired it into the
ground and had struck Battle a few times.
Bonilla then ran into his apartment, gave the gun to another person and
came back out. Meanwhile, Battle had
returned with his own gun and ended up shooting him. Like in a lot of these cases, I suspect we
are not hearing enough of the facts.
In any case, Battle was not
charged. This was a SYG-no-retreat case. But obviously SYG-immunity was not sought.
The races/ethnicities of the two
are unknown, but it was an unarmed man shot by an armed one, Jakob Penrod. Basically Penrod was living with his pregnant
fiancé. Gayle was his fiancé’s
brother. He was at their house for
several weeks when they had a violent argument.
Penrod and his fiancé actually retreated into a bathroom and Gayle broke
in and started attacking Penrod. So
Penrod shot and killed him.
Penrod was not charged.
Why this is chalked up to Stand
Your Ground is beyond me. Penrod did initially retreat, and ended up
trapped in a bathroom. At the moment he
finally fired, there didn’t seem to be any further place to retreat to. And no other unusual doctrine of Florid law
applied. So this has nothing to do with
Stand Your Ground at all.
There are those who argued that
if a black man shot and killed a white man, he would always be arrested, always
charged, and usually convicted. This is
the case that proves this is not always the case.
Two white men, Borowsky and
Steven Lonzisero, armed with knives, were shot by Hygens Labidou. Only one, Lonzisero survived. It started as an argument about how Labidou
had been driving, and the two men allegedly pounded on his truck and made
racial slurs. Lonzisero had a visible
knife. So Labidou pulled out his gun and
shot both men.
So an arrest was made, a man was
charged with murder but ultimately those charges were dropped. Who was that man? Lonzisero.
That is right, not only did they not
even arrest the black dude, but they actually arrested one of the men he
shot on the theory that he was responsible for the death of his partner in
crime under the felony
murder rule. But like I said, those
charges were dropped
in favor of aggravated assault. I
have no idea how that turned out.
Since Labidou was not even
charged, there was no SYG-immunity. On
the other hand, it wasn’t clear if he could retreat or not. I mean he was in the driver’s seat in a
truck. But according to this
report it sounds like he was at least blocked from the front. So at best we can chalk this up to a “maybe”
for SYG-no-retreat.
Further, since they also
tried to drag Labidou from his vehicle, the SYG-vehicle rule would apply.
A black gunman (Jimmy Lee Cruz)
shot an unarmed black man. The case is
pending, despite being about two years old, so I won’t go into a lot of detail,
but I will note that SYG-immunity was denied.
White on white violence, an
unarmed victim while the killer, John Croft, had a gun. It is worth noting that Croft is an old man
of 81 years. Basically they were
neighbors who had been fueding for a while, and one day they were arguing and
Croft took out his gun and shot Sigmon.
Croft said Sigmon had made a threat to throw him in a dumpster that was
central to their dispute, and suggested he was coming at him.
In any case there was no
suggestion that Croft sought SYG-immunity.
But since this was in his yard and not his dwelling, the SYG-no-retreat
rule would be in play. Since he was
convicted, it was obviously rejected.
White killer, Rhonda Eubanks,
with a gun. The victim was black and
unarmed. Basically first, Wesley tried
to break in her home and failed. Then he
tried to steal several cars including one that was occupied. Then he came back to Eubanks’ home and
charged her as she stood in the doorway.
She shot and killed him then.
She was never charged, therefore
there was no attempt to get SYG-immunity.
And as for the SYG-no-retreat rule, the cops said they didn’t even
consider it. From the database: “
Investigators said at the time that Florida's "stand your ground" law
did not impact their decision not to arrest the shooter.”
So this has nothing to do with
Stand Your Ground.
White on white violence, where an
unarmed victim was shot by Seth Browning.
But what is not noted in this breakdown is that Baker had a twin
brother, Christopher, who was involved in this.
Brandon was angry at Browning for his driving, so the twins stopped in
separate cars. From this account, the
twins approached the car and Browning pepper sprayed them. Brandon then reached into the window of
Browning’s car and punched Browning.
Browning then shot him.
This account gives you more of a picture
of the situation.
Anyway, no charges were
filed. No SYG-immunity was sought,
obviously. And while the Tampa Bay Times
seems to think that he could have retreated, his statement from his lawyer
suggests he couldn’t have. Supposedly
the attack came so quickly he couldn’t put the car in park. So I am not going to count this as a
SYG-no-retreat case.
Also it is not clear that he was
forcibly entering the vehicle or anything like that, so the SYG-vehicle rule
doesn’t apply.
Unarmed Hispanic shot by old
white man, Owen Eugene Whitlock. Ramirez
was his daughter’s boyfriend and he felt insulted by Whitlock. He came to Whitlock as he was in his driveway
and this, according
to Whitlock, is what happened next:
Whitlock said
Ramirez threatened "to show me what they do to people like me in
prison," then hit him in the chest with his forearms twice and shoved him
in the back when the older man turned.
"I wasn't going
to stand there and let someone beat me to a pulp," said Whitlock, who has
a concealed weapon permit.
He pulled his Glock
from his front pocket, warned Ramirez to back off, then shot him when he kept
on coming. Ramirez stumbled back. Whitlock told onlookers to call the sheriff.
Whitlock was never charged, so no
SYG-immunity hearing was held. On the
other hand, SYG-no-retreat was probably taken into account.
White on white violence, with an
unarmed victim (Rich) and an armed killer, Donald Rivera, who looks like this:
Or was it really Donald Montanez? Well, it turns out that Mr. Rivera had been
operating under a false name for a number of years and allegedly operating an
illegal towing operation where they would tow legally parked vehicles. Basically it was (allegedly) legalized theft.
One of the people whose cars were
allegedly unlawfully towed tried to, more or less, steal the vehicle right
back. Rivera claimed he only shot
because the car was coming right at him, but the state demonstrated that in
fact he fired as the car passed by.
Rivera did seek SYG-immunity, and
it was rejected. He didn’t assert that
he was entitled to a SYG-no-retreat rule because the prosecutors said they
planned to introduce evidence that he was engaged in unlawful activity—namely,
the alleged illegal towing operation—to negate it. So they conceded he had a duty to retreat,
making SYG-no-retreat irrelevant.
He was unsurprisingly convicted
of manslaughter.
So this is a unarmed white man
stabbed to death by Anusha Bissoon, whose race is listed as “other.” I suck at “guess the ethnicity” but here’s
here picture so you can judge for yourself.
Basically her boyfriend and Sule
were fighting over road rage, and she claimed she stabbed in defense of her
boyfriend.
She was not charged, so no
SYG-immunity at issue. And since she was
invoking the defense of her boyfriend, SYG-no-retreat doesn’t apply. Bluntly, this doesn’t belong in the database.
Hispanic man, Edwin Vargas-Lopez,
stabbed unarmed allegedly white man, Morales.
There is no picture in this case.
Apparently he was dancing with a girl and two men objected to that. Vargas-Lopez left the club and got into his
truck, but his truck was surrounded by an group of angry people. Several people were trying to punch him and
pull him through the window allegedly
when he pulled out a knife and swung, hitting one woman in the hand, and
stabbing Morales to death.
He was granted SYG-immunity. Further, since they were trying to drag him
out of his vehicle, the SYG-vehicle rule applied. But SYG-no-retreat didn’t apply because they
were actually grabbing him as he swung.
If anything, it looks like he was trying just to use enough force to
escape.
White guy (Ralph L. Wald) shoots
unarmed white guy (Conley). Basically a
man woke up in the middle of the night and came out of his bedroom to find his
wife having consensual sex with another man.
He claimed, however, that he thought she was being raped. So he got his gun, came back and killed the
guy.
This article
is downright weird in how overjoyed his wife seems to be, seeing that he got
away with murdering her lover.
Anyway, whatever my skepticism
about his actual motives, this has nothing to do with stand your ground. It was his own home meaning SYG-no-retreat
didn’t apply and there is no suggestion that he sought SYG-immunity.
White on white violence. Unarmed victim, Hilson, shot by Russell
Conrad, an old man. Basically Conrad
interrupted Hilson as he was breaking into his car, firing several shots in his
direction but not hitting him. Hilson
then approached him and Conrad told him to stop. Conrad claimed he was extremely frail and
wouldn’t fair well in a fist-fight. Hilson wouldn’t stop approaching him, so he
shot him once.
I relied significantly on this
article for additional details.
Conrad was not charged, so
SYG-immunity is irrelevant. But since he
was not presently in his home SYG-no-retreat was in play. And the SYG-vehicle rule requires the vehicle
to be occupied, which it wasn’t.
White woman, Bonnie, killed by
her husband Bryan Hower. He claimed
self-defense, that he strangled her because she came at him with a knife. Then he hid her body and pretended he didn’t
know where she was. In all frankness, it
sounds like the jury decided he fabricated the self-defense story to cover up
what was intentional murder. He was
convicted of first degree murder.
Still, he did seek a SYG-immunity
hearing, and since both of them presumably had a right to be in the home,
SYG-no-retreat was in play. So the case
involves Stand Your Ground in that respect.
Hispanic male, Oscar Delbono,
shot an unarmed white guy. The two men
were neighbors and had been feuding for a while. This article
states:
In 11 years, Huse had
been arrested 10 times in Florida. He recently had brandished a handgun and
grumbled to a neighbor that he would make Delbono pay.
But on this day,
after flailing his arms, Huse turned to walk away.
His 5-year-old son
looked on as Delbono drew a .45-caliber pistol and shot Huse through the neck
and chest. Huse died where he fell. His killer dialed 911 and told a dispatcher
that he had fired because he thought Huse "was going for something."
"I feared for
my life," said Delbono, who had no criminal history in Florida.
Delbono was not prosecuted. So no SYG-immunity hearing. Since this was not in either man’s house,
SYG-no-retreat was in play.
Indeed, as an editorial aside,
the State’s Attorney, when deciding not to charge Delbano, makes an eloquent point
about how Stand Your Ground is in part about vindicating your right to move
freely:
"Although it
might have been wiser for Delbono to remain inside his trailer and call the
sheriff's office he certainly need not be kept hostage in his own home."
The effect of a retreat rule is
to say if a person is threatening you in a certain location, you have to leave
that location, to cede it to that other person.
So if it your favorite dance club, you have to ruin your evening and
flee it, because of someone else’s bad conduct.
Same applies to the streets in your own neighborhood, even potentially
your own lawn. Yes, you can call the
police to come handle the situation, but what if they don’t come or there isn’t
sufficient proof of this person’s conduct when they get there?
When a person acts unlawfully, they should be the one who is
inconvenienced, not the innocent.
Again, it is asserted that if a
black man shot an unarmed white man, he would automatically be arrested,
charged and convicted. As one author wrote:
“African-Americans are never protected or served by the law enforcement apparatus
— yet they are always subject to its military might.” This shows that line for the ridiculous
hyperbole that it is.
We have an unarmed white male,
Lavoie, being shot to death by a black man, Cleveland Murdock.
Murdock was allegedly tailgating
Lavoie and his girlfriend in traffic. So
the cars stopped and Lavoie argued with Murdock, finally reaching into the car
and trying to open the door as
they fought. Murdock then shot him.
Murdock was briefly detained for
questioning to check on his story but then set free. This is constitutionally-speaking an arrest
requiring Miranda warnings and the like, but they don’t call it one. Zimmerman was subjected to the same kind of
treatment.
Murdock was not charged with a
crime. And indeed he shouldn’t have been
on those facts.
So SYG-immunity didn’t
apply. Also SYG-no-retreat is debatable,
much like the Baker case above. Could he
had backed the car away? In Baker it
really sounded like he didn’t have the time.
Here, it’s not clear. So we will
say a “maybe” on SYG-no-retreat. But
since Lavoie was also trying to open the door, this also falls within the
SYG-vehicle rule, which means Murdock was presumptively in fear of death or
great bodily injury.
Another white-on-white incident,
involving an unarmed man, Baisden, who was shot by Sean Christopher
Stewart. But the case is pending, so
beyond noting that this man was charged and pretty vigorously pursued,
including following an appeal by Stewart.
Another white-on-white incident,
involving an unarmed man, Martell, shot by Max Wesley Horn Jr. Basically they had been arguing on or off
previously at a bar unfortunately named Hot Shots. Horn claimed to have a heart condition that
prevented him from fighting. So from a
Tampa Bay Times article
on the subject:
"Then he
[Martell] starts on me. … I told him, 'I can't fight you,' " Horn said.
Horn had a concealed
weapons permit and a serious heart condition. He lifted his shirt to reveal he
was armed. "I'll shoot you," he told Martell.
So his story is he really
couldn’t engage in a fistfight, similar to a disabled gun owner I
blogged about in my Patterico days.
Martell was “dragged” to another bar by a friend named Scott Hicks, but
ducked out and went back to Hot Shots looking for a fist fight... with a man with a gun. He did end up slugging Horn and Horn shot him
six times.
He was charged with second degree
murder and acquitted by a jury.
He sought SYG-immunity and was
denied. And presumably he had many
routes of escape, so SYG-no-retreat applied.
By the way, I love how the photo
they used of Martell was with family, while the photo of Horn featured him
acting out the shooting.
Unarmed black man, Mitchell, shot
by another black man, Deounce Harden.
Harden was dating Mitchell’s ex-wife, leading to a running dispute
between them. Harden showed up at
Mitchell’s job and they started arguing again.
The database says he simply shot and killed Mitchell without further
provocation. In an article with a hilariously
biased title, Law
And Disorder: Carwash Homicide Deemed Justifiable, the Times Union
reported that
Assistant State
Attorney John Gihon... said he didn't believe Mitchell was armed with a gun
when he died, but that there were allegations he had threatened to kill or do
great bodily harm to Harden prior to the shooting.
So you get the feeling there is
more to the story than these reports are telling us. In any case, he was not charged, so no
SYG-immunity involved. On the other
hand, it’s a public place so SYG-no-retreat probably did play a role in this.
Sidebar: One thought that has occurred to me is that perhaps the
influence of the law has been more about making people suddenly aware of the
law rather than any radical shift in the law.
Allow me to explain. Before the
ADA was passed, was it legal for public schools, colleges (private or
otherwise), and businesses to discriminate against the disabled? Were they required to provide reasonable
accommodations? Actually for a great
number of such institutions, they were not allowed to discriminate: they had to
provide accommodations.. Prior to the
ADA there was a law called the Federal Rehabilitation Act of 1973, which
included in it a provision banning discrimination based on disability and
requiring reasonable accommodations...
if the entity received any federal money. So rather than relying on the commerce power
or Section 5 of the Fourteenth Amendment, they made it a “string” attached to
any amount of federal spending. Further,
it was expansive. For instance, if any
unit of a state government received federal funding, the entire government was
bound.
So practically speaking a great
number of institutions were covered by this law... and yet
discrimination—including a failure to accommodate—was still pretty
rampant. Why? Because most people didn’t even know the law
existed.
I have watched in my lifetime how
the ADA changed things. I myself went
from being a high school drop-out to being a Yale-educated attorney. Similarly dramatic changes were made in many
of the lives of the disabled. But I
suspect that in the end what was most important was not the change in the law
that was made, so much as the change in awareness of the law.
So maybe something similar to
that happened here. The law wasn’t very
different from this before, but because this change in the law was so
contentious everyone suddenly knew there was this new law on self-defense that
was more permissive than before.
Anyway, back to the analysis.
Black on black violence, an
unarmed man (Carter) stabbed to death with scissors by a woman, Rotesia Levette
Bryant. So basically they were living
together, they had a number of domestic violence incidents at the house and
Carter was in the process of moving out.
Bryant stated that Carter hit her several times, tackled her and pinned
her to the bed. That is when she stabbed
him twice in the chest.
She said she didn’t want to kill
him but the law tends to say that is deadly force regardless of her subjective
intent.
In any case she was charged, but
granted SYG-immunity. However
SYG-no-retreat wasn’t in play because she couldn’t have escaped.
White guy on white guy violence,
a guy armed with a knife, Cohron, shot by David Hatley. The men were roomates. Cohron woke Hatley up one evening, they
argued and Cohron trying to stab him.
Hatley escaped and then came back, closing the door to his room and
warning Cohron that he had a gun and would shoot him if he entered. Cohron then “barged in” and Hatley shot him
to death.
Cohron was not charged, so
SYG-immunity was irrelevant. On the
other hand, this was both of their homes, SYG-no-retreat applied.
Unarmed white man, Frazzini, shot
by white guy, Todd Rasmussen. Really
this case is a strange one. Frazzini
thought people from the Rasmussen family were harassing his mother. So he investigates, wearing a sweat suit
and a camouflage mask, carrying a bat
and hiding. The Rasmussens see this
going on, and encountered him. Corey
Rasmussen, the shoooter’s son confronted him specifically, but the elder
Rasmussen was apparently concerned for his son’s safety and so he got a gun
from his daughter, shouted a warning and then shot Frazzini.
So a masked man with a bat was
shot to death.
Anyway, he was unsurprisingly not
charged. So no SYG-immunity. And since this was defense of others, the
duty to retreat didn’t really apply, so this was not a SYG-no-retreat rule
case. In all frankness, this has nothing
to do with Stand Your Ground at all.
An unarmed white guy, Sands,
stabbed to death by a black guy, Reginald Etienne. Basically they were having an argument at a
party. Etienne left, got a knife from
his kitchen and came back and resumed the argument. The Tampa Bay Times makes it sound like
Etienne stabbed Sands out of the blue, but this
account at least says there was some kind of fighting beforehand, but it’s
not clear who is striking whom. No other
account I have found clears that up.
Still I think what ultimately led
to his conviction is this part, describing how Etienne
stabbed Sands 18
times including in the liver and heart. After the fight, Etienne fled and was
found hiding in a Dumpster. Etienne remained in Lee County Jail since his
arrest. The medical examiner, Doerr said, testified that the heart wound was
not survivable and the liver wound “may have been survivable if he was on the
(operating) table.” Sands, whose death was the first of 2010, had stab wounds
to his back and torso and defensive wounds to his arms.
We have seen a number of cases
where the prosecutors argued that the first blows were justified, but
subsequent blows were not. It sounds
like case involving Yajaira Jimenez-Castillo, mentioned in the last post in
this series, who stabbed an attempted rapist 74 times. You have to wonder if all those stabbings are
necessary.
Anyway, he did seek SYG-immunity
and was denied. And since this was a
party at someone else’s house, this was a SYG-no-retreat case.
White on white violence, an armed
killer, Nathan McReynolds. Meanwhile,
the victim’s armament status is listed as “unknown.” The facts here are confused and I have
searched around and couldn’t get more data to clear it up. The mystery is why McReynolds even claimed
self-defense given that he also claimed his gun went off by accident. At best, maybe he was saying he was trying to
use it as a club when it went off like in the Harper case.
In any event, McReynolds was a
drug dealer, doing a drug deal with Asber.
They argued and somehow McReynolds ended up shooting him in the head.
Despite the difficulty in
asserting self-defense, he did seek SYG-immunity and was denied. As you know by now, SYG-no-retreat doesn’t
apply because he was engaged in illegal activity—drug dealing—when it happened.
He was convicted of manslaughter/
Two unarmed white people, Andrews
and a woman named Lynda McAdams, shot to death by Michael McAdams. I will refer to the McAdamses by their first
names to make life simpler. Lynda was
Michael’s wife. Andrews was Lynda’s
lover. What is strange here is that the
Tampa Bay Times account is contradicted by... the Tampa Bay Times. Let me illustrate.
As background, apparently Michael
came home to find his wife and a man together.
Supposedly Andrews challenged Michael to a fight and Michael refused and
retreated. And then we get this from the
database’s write up:
[Michael] McAdams
refused and said he left the house only to see the new couple having sex
through a window. Enraged, he grabbed a gun that he said he stored under a milk
jug by the front door and shot his wife in the face and her boyfriend in the
head.
But this is contradicted by the
Tampa Bay Times itself, when they wrote:
Some of his claims
about how the shooting unfolded didn't add up. McAdams claimed his wife was
naked when he arrived, but her body was fully clothed when it was unearthed.
Andrews' T-shirt had two apparent bullet holes in the back.
Yes, you read that right,
unearthed. As in he buried their bodies
somewhere. Indeed, judging by this posting
there was a considerable period of time when no one could figure out where they
were.
So it sounds like the Jodi Arias
case where at one point self-defense was claimed, but it was one of many
unbelievable stories he told. According
to this report, by the time the trial rolled around, they were no longer
arguing that he didn’t kill them, but just that he didn’t commit murder one:
Anyway, supposedly SYG-immunity
was asserted and denied. And the
SYG-no-retreat rule would be in play for however long he claimed self-defense.
Unarmed Hispanic guy, Ibanez,
shot by Marcos A. Trujillo. Trujillo is
described by the database as being on a “spiritual high.” You know, I don’t think I can quite capture
this as well as they do:
Neighbors said the
man had been pounding on windows and doors in the New Tampa apartment complex.
Witnesses describe a man out of control but not necessarily threatening. Before
he approached Trujillo's apartment and began banging on his windows, the
victim, Carlos Humberto Ibanez, was doing cartwheels and banging on cars hard
enough to set off alarms.
Also by this
account, he very specifically appeared to be banging on the door.
Anyway, since there was no
charge, there was no SYG-immunity necessary.
Since he was in his home, there was no SYG-no-retreat rule in play. This is not a Stand Your Ground case.
White guy armed with a knife,
killed by a white guy named Luis Perez.
There is no photo to show you.
Let me quote from the database, so you can see for yourself what is
strange here:
Luis Perez was in
his car waiting to pick someone up when his aunt's husband, 37-year-old Roberto
Legarreta, charged at him with what Perez thought was a machete or crowbar.
Perez said he couldn't get his keys out fast enough to drive away so he fired a
gun he had next to him, striking the man five times.
The motive for Legarretta’s
attack is never explained, but here’s the really odd part. When you look at the checkboxes below, they
say he could have retreated? How? He was in a car, and he couldn’t turn it on
fast enough to avoid being attacked with what he thought was a pretty serious
weapon.
Anyway, he was not charged, so no
SYG-immunity needed. And since he
couldn’t retreat, the SYG-no-retreat rule is not in play. This is not a Stand Your Ground case. There was no suggestion that he had even
touched the car, let alone attempted to break into it, so the SYG-vehicle rule
wouldn’t apply.
Hispanic on Hispanic violence,
with Roteta armed with a bag of car stereos, and Greyston Garcia having a
knife. I think this is one I have heard
referenced several times. Basically
Garcia saw Roteta stealing his car radio.
He chased the man down the street and caught up to him and Roteta swung
the aforementioned bag of car stereos at his head. Garcia stabbed him. There was video evidence, though it is
unclear if it captured the entire incident.
As an interesting aside, Garcia
didn’t call the police after the stabbing and denied involvement until the
video appeared. He also allegedly took
the stereos that Roteta had in his bag and pawned
them.
He sought and received
SYG-immunity. The judge ruled that he
was within his rights to chase the man down and once Roteta used deadly force
against him—swinging the sack of radios—Garcia was justified in using deadly
force in return. And of course
SYG-no-retreat rule was in play here.
For the life of me, I don’t
understand why this case is so controversial.
In most states you can use non-lethal force to try to protect your
property, which is all he did initially.
It was the thief who escalated matters into a lethal encounter.
As a final coda, Garcia was shot
by a random bullet about three months after being acquitted.
Unarmed white guy stabbed by
white woman, Cindy Gilliland. The
database said this case was pending, but in fact she
was sentenced to probation after pleading guilty to manslaughter in a
probable plea deal down from murder two.
Basically they were boyfriend/girlfriend
and she claimed he was abusive to her.
She claimed at some point it was self-defense. It is really unclear what the exact
circumstances were, but we don’t have to know for my analysis.
There is no indication she sought
SYG-immunity. But the SYG-no-retreat
rule would have applied.
Black on black violence, unarmed
victim (Johnson), shot by Greg McQuitter.
McQuitter is a sheriff’s deputy. I consider this a poor account for two
reasons. First, it doesn’t make it clear
why or if deadly force is justified. It
said that Johnson tried to rob him and McQuitter shot.
Or it might be the case that even
he was off-duty, he was still empowered to act as a law enforcement officer and
with greater freedom of action.
Certainly the police are not required to retreat. He might not have needed a threat to his life
to shoot.
In any case, he was not charged,
so no SYG-hearing. Since he was not in
his home, SYG-no-retreat would presumably apply, except his status as an
officer negates it. I asked a Florida
lawyer who goes by the nickname Rebelpundit about it, and this is what he said:
.@AaronWorthing Under Fla law, the authority/duty of a LEO isn't dependent on being "on duty". Their authority under color of law is 24/7.
— RebelPundit (@NoChromeHD) July 21, 2013
I will defer to his expertise on
this point. So he had no duty to
retreat, so the SYG-no-retreat rule wouldn’t have anything to do with it. In all frankness, he is not treated as an
ordinary person in this respect. This
case doesn’t belong in the database.
White man, Cline, shot to death
by white woman, Anita Jane Smithey. The case is pending so I won’t comment
overly much about it, but she did seek SYG-immunity and it was denied. She claimed that he was raping her with a
knife at her neck, so SYG-no-retreat wouldn’t apply. The problem with her defense, so far, is
problems in credibility—as in, they don’t believe her story.
Unarmed white guy, Fryer, shot by
white guy, Raymond Emala. Basically
there was domestic violence in Fryer’s mother’s home and she called for help
from her friend, Mr. Emala. Emala
arrived in his car and Fryer approached the vehicle in an aggressive,
threatening manner. Emala remained in
the vehicle. Emala was in poor health an
unable to defend himself physically, so he pulled out his gun hoping Fryer
would back off. Instead Fryer lunged at
the gun and according to this,
caused one shot to go through the windshield.
Fryer tried to punch him through the window and Emala shot Fryer twice,
killing him.
So let me break that down
some. One might debate whether Emala
initially feared deadly force or non-deadly force. But Emala didn’t respond with deadly
force—aiming a gun at person is force, but not deadly force. But Fryer decided that instead of running
away he would fight, so then now Emala had grounds to fear deadly force—namely
his gun getting taken from him and used against him.
There were no charges, so there
was no SYG-immunity needed. As for the
SYG-No-Retreat rule, I don’t see how it could be relevant. Plainly Fryer was able to get at him quickly
enough to deflect the first shot, so how could Emala have retreated in that
time? So this is not a Stand Your Ground
case.
Incidentally, it is not obvious
that the SYG-vehicle rule would apply, because his entry didn’t seem forcible.
Unarmed white man, James, shot by
an elderly black man, Trevor Dooley.
This on a high level bears some
resemblance to the Fryer case. Some of
the background facts are different, of course, and Dooley was not in his car at
the time. But the key similarity is an
older man and a younger man having an argument, and the older man asserting
physical weakness in part as a reason to shoot.
The short version is Dooley
didn’t like a kid skateboarding in the park.
For the life of me, I don’t understand why anyone gets so riled up about
skateboarders. James was just a bystander
but he decided to stick up for the kid and they argued. Here’s
what the court found to be the facts:
the evidence showed
that Mr. James had not been threatening or aggressive in any way toward
Defendant, although he did appear to be shocked, defensive, loud, upset and
agitated. It was not until Defendant
reached for and pulled out his weapon - indicating an intent to escalate from
an argument to violence - that Mr. James exerted and used physical force
against Defendant.
So you see it is very similar to
the Fryer situation, but in that case, they necessarily believed that Emala
reasonably feared non-lethal force, at the very least, when he drew and
brandished his gun, but evidently they did not believe the same about
Dooley. Instead once Dooley drew the
weapon—which is against the law in Florida as a rule and you must find some
exception to allow it, such as self-defense—he caused the situation to
escalate.
Anyway, that factual finding was
from a SYG-immunity hearing, where such immunity was denied. But as for SYG-no-retreat was concerned, the
defendant’s theory of events—that he only drew his gun because he was afraid of
being attacked—doesn’t implicate a retreat rule. If he was in a retreat jurisdiction and the
facts were truly as he stated, his drawing of the gun could have been justified
to help him retreat. As in, “I planned
to get out of there, and I drew my gun hoping to keep the other guy back.” Once the gun was drawn, evidently James
became afraid for his life, and rather than run, he jumped Dooley.
He was found guilty of
manslaughter.
Sidebar: According to my friend Lee
Stranahan, this story was advertised as a “reverse Trayvon Martin
situation” because Dooley claimed that James was had him pinned down and was choking
him before he shot, and he only shot because he was afraid he was going to
die. The problem was that there were four
living eye-witnesses who contradicted that story. And if there were any marks on his neck, I
haven’t heard of it. So the difference
isn’t the claims made by the defense—they are somewhat similar—but whether the
evidence supports them. Zimmerman’s
story was supported by most of the evidence; Dooley’s was not.
And let’s not forget that
Cleveland Murdock, a black man, was able to shoot a white man and was set free
after questioning, just like George Zimmerman, and never charged.
White on white violence,
basically an unarmed husband, Robert, was stabbed to death by his wife, Lillian
Dolores Fahrer. There was a history of
abuse by Robert against Lillian. That
night, they had been arguing and Robert pushed her against a wall and
threatened her. She went to the kitchen,
grabbed a knife. He dared her to stab
him and then took a step toward her, and so she did.
She was not charged, so there was
no SYG-immunity. What isn’t clear is if
she could have retreated safely. Some
kitchens you can retreat from, some you can’t—there is only one way in or
out. Well, the database put a checkmark
next to “no” to the question of retreat, so I will presume they know what they
are talking about. In that case, this
case wouldn’t be a Stand Your Ground case at all.
But think of the opposite
rule. Would it be right to require her
to flee her home? Are you good feminist
liberals sure about your opposition to Stand Your Ground?
White guy on white guy
violence. The deceased, Burke, had a
wrench. His killer, David Trombley, had
a metal pole. Trombley claimed that Burke
swung a wrench at him, but witnesses contradicted
his account, stating that he was too far away from Trombley to threaten him and
he waited 10-15 seconds after the swing to strike him.
He ended up pleading guilty,
sentenced to 40 months in prison.
There is no suggestion that
Trombley sought SYG-immunity. But he was
not on his property according to the Tampa Bay Times, so SYG-no-retreat would
be in play.
Two unarmed white guys, Mohlman
and Matthew Vittum, shot to death by another white guy, Michael Monahan. To be blunt I am not sure why this was
self-defense at all. This Blaze
article makes it clear that Mohlman and Vittum might have had murder on
their minds, but there is no report of why Monahan felt he was about to be
killed or suffer great bodily harm. They
were twenty feet away, and unarmed.
All of this took place on a boat,
and so it occurred to me that maybe this boat had become legally Monahan’s
dwelling. And that
is indeed what the court seemed to think, but at the same time, Mohlman was
apparently the legal owner of the boat, so he had a right to be there too. So I am left wondering why Monahan felt threatened, but for some reason the court felt
that he had proven, by a preponderance of the evidence, that killing the men was
necessary to prevent imminent deadly force against himself.
In any case, SYG-immunity was
granted. As for SYG-no-retreat, the database
describes him as cornered, so he couldn’t have retreated.
Another white guy on white guy
violence case, an unarmed man (Koenig) stabbed to death with a knife by David
Allan Dodd. Basically, Dodd was sleeping
with Jerry Koenig’s ex-wife, Kim. I will
refer to the Koenigs by their first names for clarity. The couple were asleep in small car repair
shop office that
doubled as Dodd’s home. Jerry kicked
in the door and attacked Dodd, Dodd telling him repeatedly to get off of
him. Then he grabbed a knife and stabbed
him.
He was initially charged, but the
case was dismissed. There is no
suggestion that SYG-immunity applied.
But there is also no suggestion that SYG-no-retreat applied. This was his home, of course, and according
to the database, he couldn’t have retreated.
So this is not a Stand Your Ground case at all.
So that is it for this
chunk. Stay tuned because the next is
likely to be the last of the fatal cases.
---------------------------------------
Disclaimer:
I have accused some people,
particularly Brett Kimberlin, of
reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice I want is through the
appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence
against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.
In the particular case of Brett
Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part
because under Maryland law, that can quickly become harassment and I don’t want
that to happen to him.
And for that matter, don’t go on
his property. Don’t sneak around and try
to photograph him. Frankly try not to
even be within his field of vision. Your
behavior could quickly cross the line into harassment in that way too (not to
mention trespass and other concerns).
And do not contact his
organizations, either. And most of all, leave his family alone.
The only exception to all that is
that if you are reporting on this, there is of course nothing wrong with
contacting him for things like his official response to any stories you might
report. And even then if he tells you to
stop contacting him, obey that request. That
this is a key element in making out a harassment claim under Maryland law—that
a person asks you to stop and you refuse.
And let me say something
else. In my heart of hearts, I don’t
believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.
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