In September 2010, Trevor Dooley stormed into a park near his home outside Tampa, angry because a teenager was skateboarding on the basketball court. Dooley was carrying a .32-caliber semiautomatic handgun in his pants, and it was visible to David James, 41, who was in the park with his 8-year-old daughter. James tried to disarm Dooley, who is now 71, and as the two men tussled on the ground, Dooley shot James in the chest, killing him. Prosecutors, not surprisingly, charged Dooley with manslaughter. But if Dooley's lawyers can convince a judge by next week that he fired the gun because his life was being threatened that he is therefore protected under Florida's "stand your ground" law Dooley may well walk away a free man.
A growing number of people hope the judge will make Dooley stand trial on the manslaughter charge. But that sentiment has as much to do with another tragedy that occurred last month, 60 miles (100 km) to the northeast, in Sanford, Fla. That's the case of Trayvon Martin, an unarmed teen who was shot and killed the night of Feb. 26 while walking back to the house where he was staying in a gated community. The shooter, George Zimmerman, 28, the neighborhood watch captain, was following Martin because he thought the 17-year-old, dressed in a hooded sweatshirt, looked suspicious. When the two got into an altercation, Zimmerman fired the gun he was carrying.
As astonishing as it sounds, Sanford police have refused to charge Zimmerman although the state attorney's office now says it will convene a grand jury next month to investigate the case. The cops have been balking in large part because, under the stand-your-ground statute, they're virtually obligated to accept his argument that he was acting in self-defense even if it was Martin who may have felt more threatened, according to recordings of 911 calls by neighbors that were released over the weekend. The 2005 Florida law permits anyone, anywhere to use deadly force against another person if they believe their safety or life is in danger, and it's the state's usually futile task to prove that the act wasn't justified. Little wonder the St. Petersburg Times found that five years after the law was signed by then Governor Jeb Bush who called it a "good, commonsense anti-crime" bill claims of justifiable homicides in Florida more than tripled, from just over 30 to more than 100 in 2010. In that time, the stand-your-ground defense was used in 93 cases involving 65 deaths and in the majority of those cases, it worked.
Pro-gun advocates like the National Rifle Association, which pushed hard for stand your ground, say it simply broadens citizens' capacity for self-defense. But if Dooley and now Zimmerman do walk, there may be an understandable public backlash against a statute that in reality has made the streets, bars and parks of Florida and of the at least 16 other states that have enacted similar laws since 2005 more dangerous spaces. Stand your ground, which many Floridians sardonically call "shoot first," didn't broaden self-defense as much as it broke with centuries of British and American common (and commonsense) law that absolved such deadly force only in cases involving the "castle doctrine," that is, defending one's home against a violent intruder.
Common-law tradition otherwise requires citizens to dutifully retreat from perilous situations, as a 911 dispatcher told Zimmerman to do on Feb. 26. But Zimmerman apparently felt emboldened to pursue Martin anyway which points at stand your guard's potential for turning the U.S. into a frightening society of vigilantes. Or worse, hotheads with carte blanche: one of the most notorious cases, in 2006, involved a man protected from prosecution by stand your ground after shooting his neighbor during an argument over loud music and garbage collection.
That's especially true in a state like Florida, where it's particularly easy even for a guy like Zimmerman who was arrested in 2005 for battery on a police officer (his case was moved to pretrial diversion and the charges were dropped) to get a concealed-weapon permit. "The major problem with stand your ground is that it exists in tandem with state laws that allow so many loaded guns to be carried around in public," says Daniel Vice, senior attorney at the Brady Center to Prevent Gun Violence in Washington. A Florida law enacted last year also lets people take guns to public beaches and city halls.
Even if Florida didn't have some of the country's most lenient gun laws, stand your ground would still be Paleolithic legislation because, as Ladd Everitt, spokesman for the Washington-based Coalition to Stop Gun Violence, puts it, "It gives us all the right to use lethal force like guns even during fistfights." Which is why police chiefs in Florida metropolises like Miami and St. Petersburg, and law-enforcement groups like the Florida Prosecuting Attorneys Association and the National District Attorneys Association whose then president said the law "gives citizens more rights to use deadly force than we give police officers, and with less review" decried stand your ground when it hit the books seven years ago.
The Florida Supreme Court would seem to agree. It has in the past supported the common-law duty to retreat before using lethal force by asserting that "human life is precious, and deadly combat should be avoided if at all possible when imminent danger to oneself can be avoided." But it's in a bind as to what it can do about stand your ground, because unlike obvious constitutional issues like church-state separation, the law doesn't directly contradict the state constitution. The state high court did hear a stand-your-ground case in late 2010, but all it could feasibly do was address procedural, not constitutional, issues and rule that judges must decide before trials whether defendants have legitimate self-defense claims.
Which is the job the judge in the Dooley case now has before her. Meanwhile, in the case of Martin who it turns out was doing nothing more sinister than returning home from a convenience store with some Skittles and a can of iced tea the actions of Zimmerman, who is from a mixed white and Hispanic family, are now under U.S. Justice Department investigation, and he could face charges for targeting the teen, who was black. But proving racial bias in this instance may be difficult, even though Zimmerman reportedly has a long history of making 911 calls about "suspicious" black persons. (It should also be noted that Dooley, who was charged, is black, and his victim, James, was a white Air Force veteran raising questions, say African-American community leaders, about whether white aggressors enjoy more certain stand-your-ground protection than minorities do.)
Before 2005, even Sanford police, who have been accused by Martin's family of blindly accepting Zimmerman's account, probably would have had to charge Zimmerman with manslaughter if not second-degree murder. Yet it seems the only Florida institution with any power in such cases now is the same state legislature that passed the law in the first place. That body could prevent a lot more David James and Trayvon Martin tragedies in the future by repealing the statute but the lawmakers sitting in Tallahassee look even more pro-gun today. Which means their response will be to stand their ground.