FEBRUARY 2020

BRIEFING

REPORT

U.S. COMMISSION ON CIVIL RIGHTS

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Official Business

Penalty for Private Use $300

Visit us on the Web: www.usccr.gov

EXAMINING THE RACE EFFECTS

OF STAND YOUR GROUND LAWS AND RELATED ISSUES
U.S. COMMISSION ON CIVIL RIGHTS

The U.S. Commission on Civil Rights is an 

independent, bipartisan agency established 

by Congress in 1957. It is directed to:

• Investigate complaints alleging that citizens are 

being deprived of their right to vote by reason of their 

race, color, religion, sex, age, disability, or national 

origin, or by reason of fraudulent practices.

• Study and collect information relating to discrimination or a 

denial of equal protection of the laws under the Constitution 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Appraise federal laws and policies with respect to 

discrimination or denial of equal protection of the laws 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Serve as a national clearinghouse for information 

in respect to discrimination or denial of equal 

protection of the laws because of race, color, 

religion, sex, age, disability, or national origin.

• Submit reports, findings, and recommendations 

to the President and Congress.

• Issue public service announcements to discourage 

discrimination or denial of equal protection of the laws.1

1 42 U.S.C. §1975a.

MEMBERS OF THE COMMISSION

Catherine E. Lhamon, Chairperson

Patricia Timmons-Goodson, Vice Chairperson*

Debo P. Adegbile

Gail L. Heriot

Peter N. Kirsanow

David Kladney

Karen Narasaki**

Michael Yaki

Mauro Morales, Staff Director

U.S. Commission on Civil Rights

1331 Pennsylvania Avenue, NW

Washington, DC 20425

(202) 376-8128 voice

TTY Relay: 711

www.usccr.gov

* Term ended 12/05/2019.

** Term ended 11/29/2019. 
Examining the Race 

Effects of Stand Your 

Ground Laws

Briefing before

The United States Commission on Civil Rights

Held in Orlando, FL

Briefing Report
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Letter of Transmittal

February, 2020 

President Donald J. Trump 

Vice President Mike Pence 

Speaker of the House Nancy Pelosi

On behalf of the United States Commission on Civil Rights (“the Commission”), I am pleased to 

transmit our materials from our briefing on Stand Your Ground laws. These materials are also 

available in full on the Commission’s website at www.usccr.gov.

The purpose of the Commission’s briefing was to determine whether there is a possible racial 

bias in the assertion, investigation, or enforcement of justifiable homicide laws in states with 

Stand Your Ground provisions. In the transcript of our briefing, you will find expert testimony 

from state legislators, academic researchers, and advocates, as well as testimony on the personal 

impact of these laws. 

We at the Commission are pleased to share these materials to help ensure that all Americans 

enjoy civil rights protections to which we are entitled. 

For the Commission,

Catherine E. Lhamon 

Chair

UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 Pennsylvania Ave., NW  Suite 1150  Washington, DC 20425 www.usccr.gov
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Table of Contents i 

TABLE OF CONTENTS 

Table of Contents ............................................................................................................................. i

Commissioners’ Statements .............................................................................................................1

Statement of Commissioner Michael Yaki............................................................... 1

Statement of Commissioner Gail Heriot............................................................... 30

Statement of Commissioner Peter N. Kirsanow....................................................... 56

Stand Your Ground Public Briefing Transcript (Oct. 17, 2014) ....................................................71
ii Race Effects of Stand Your Ground Laws

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Commissioners’ Statements 1

COMMISSIONERS’ STATEMENTS

Statement of Commissioner Michael Yaki

INTRODUCTION

The shooting death of Trayvon Martin on February 26, 2012, and later that year, on November 

12th, the shooting and killing of Jordan Davis triggered a national controversy over the legislated 

criminal defense called “stand your ground.” These laws expanded the self-defense principles of 

the castle doctrine to situations and areas outside the curtilage of a home. It also expanded the 

principle of self-defense to a lesser justification standard than that of justifiable homicide. 

The United States Commission on Civil Rights opened its own inquiry on the subject in May 2013, 

and in October 2014, held a hearing in, Florida. The transcript of that hearing forms the main body 

of that report. Unlike other hearings or briefings, the work of the Commission was conceived as 

an investigation, on a bipartisan vote made possible by the vote of then-Vice-Chair Abigail 

Thernstrom.

1

 

We are here presented with only the testimony heard in Florida five years ago, as well as research 

and public information subsequent, but that does not prevent members of this Commission to state 

their observations on an issue that continues to trouble our nation to this day. And so my statement 

begins.

The question we asked then, and we ask now, continues to be: do Stand Your Ground laws2 have 

an unacceptable racial bias in their application in the criminal justice system. What we do know, 

and what we cannot ignore, is that the same racial biases that have permeated our criminal justice 

system cannot be separated from this issue. When you consider the racial disparities in selective 

prosecution and sentencing that have been amply documented in the literature3is it any wonder 

1 Through no fault of the Commission and its staff, the lack of resources – both fiscal and personnel – hampered the 

ability of the Commission to engage in the type of fact-finding this matter deserved. Because of the way that data is 

recorded in Stand Your Ground shootings – or, more accurately, was not recorded, as will be discussed later – the 

intensive investigative resources that would have been required to be dedicated proved to be beyond the reach of the 

Commission. However, I want to acknowledge the immense contributions of Commission staff in providing the 

research enabling this Statement. In particular, I want to acknowledge their major contributions in Sections I, IV, 

and V. 

2 Throughout the text of this Statement, Stand Your Ground and its abbreviation, SYG will be used interchangeably.

3 See, e.g., Marc Mauer (2010) “Justice for All? Challenging Racial Disparities in the Criminal Justice System,” 

Human Rights, Volume 37, Number 4, Fall 2010.
2 Race Effects of Stand Your Ground Laws

that a law like Stand Your Ground, which in effect grants both powers to an individual under the 

guise of self-defense would suffer similar maladies?

First, though, it is important to understand the background of Stand Your Ground laws.

I. THE RISE AND EVOLUTION OF STAND YOUR GROUND LAWS

A. The inception of Stand Your Ground

Florida passed the first “Stand Your Ground” law in 2005. The law extended the common-law 

“castle doctrine,” embedded in most state laws, to go beyond the confines of one’s home and into 

any area where a person “has a right to be” in defense of their person or property.4

Under the common law, the use of deadly force in the exercise of self-defense was justified in the 

case of a person defending their home.5 Until then, the “rule of retreat” dictated that a person had 

a duty to remove themselves from perceived harm. This was modified under early American 

jurisprudence to include any situation in which the defendant was in reasonable fear of imminent 

death or severe bodily harm. 6

4 Fl. Statutes 771.012: (1) A person is justified in using or threatening to use force, except deadly force, against 

another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself 

or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force 

in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force only if he or she reasonably 

believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A 

person who uses or threatens to use deadly force in accordance with this subsection does not have a 

duty to retreat and has the right to stand his or her ground if the person using or threatening to use 

the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to 

be. 

Fl. Statutes 776.031: (1) A person is justified in using or threatening to use force, except deadly force, against 

another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or 

terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a 

dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of 

his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A 

person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before 

using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force only if he or she reasonably 

believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A 

person who uses or threatens to use deadly force in accordance with this subsection does not have a 

duty to retreat and has the right to stand his or her ground if the person using or threatening to use 

the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to 

be.

5 See Christine Catalfamo, Stand Your Ground: Florida's Castle Doctrine for the Twenty-First Century,. 4 

RUTGERS J. L. & PUB. POL'Y 504.

6

Id.
Commissioners’ Statements 3

Florida’s law removed the duty to retreat and extended the right of deadly force to protect other

persons7, property outside the home8, as well as reduced the threshold in both statutes from 

“reasonable fear of imminent death or severe bodily injury” to the broader “imminent commission 

of a forcible felony.”9 In essence, the Florida law created innumerable and moving “castles” that 

allowed the use of deadly force wherever a person had “a right to be,” effectively abrogating the 

duty to retreat in any place or circumstance.10

The National Rifle Association, in crafting the Florida legislation,11 wanted the legal equivalent 

of carte blanche for the exerciser of a Stand Your Ground right. First, under the original version 

of the statute12 the person making the claim that they acted in accordance with the Stand Your

Ground law was immune to criminal and civil prosecution if they are deemed justified in their use 

of deadly force.13 In addition, and most confusing to law enforcement,14 the police “may not 

arrest the person for using or threatening to use force unless it determines that there is probable 

cause that the force that was used or threatened was unlawful.”15 In 2017, the statute was 

amended16 to shift the burden to the prosecution to overcome a Stand Your Ground claim by clear 

and convincing evidence17, which has further confused prosecutors.18

7 FL. Statutes 776.012(1).

8 FL. Statutes 776.031(1).

9

“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; 

robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; 

unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the 

use or threat of physical force or violence against any individual.” FL. Statutes 776.08

10 See Catalfamo, supra note 5, at 526.

11 See Mike Spies (2018) “The N.R.A. Lobbyist Behind Florida’s Pro-Gun Policies,” The New Yorker, March 5,

2018, at https://www.newyorker.com/magazine/2018/03/05/the-nra-lobbyist-behind-floridas-pro-gun-policies.

12 The statute has since been changed to make it even more difficult to charge someone using a Stand Your Ground 

defense, as will be discussed, infra. However, this section remains in the law.

13 FL. Statutes 776.032(1).

14 See Susan Taylor Martin, Tampa Bay Times, Florida 'stand your ground' law yields some shocking outcomes 

depending on how law is applied, http://www.tampabay.com/news/publicsafety/crime/florida-stand-your-groundlaw-yields-some-shocking-outcomes-depending-on/1233133 (hereafter “Tampa Bay Times”).

15 Fl. Statutes 776.032(2).

16 The Florida Supreme Court in 2015, after years of watching courts wrestle with interpreting the statute, created a 

court rule that required a defendant to establish at a pre-trial hearing their claim under the SYG statute by a 

preponderance of the evidence. See https://www.miamiherald.com/news/politics-government/statepolitics/article142992234.html The National Rifle Association then worked to pass the change in the legislature, 

finally succeeding in 2017. See Spies, supra.

17 FL. Statutes 776.032(4).

18 https://www.wtsp.com/article/news/local/pascocounty/trial-of-curtis-reeves-postponed-due-to-confusion-aboutstand-your-ground-law/67-587350524.
4 Race Effects of Stand Your Ground Laws

The Florida “Stand Your Ground” law has been emulated, in one form or another, in over two 

dozen states, 19 the most recent in 2018.20 As Table 1 illustrates, 2006 was a watershed year for 

SYG expansion as 14 states followed Florida by enacting similar legislation—AL, AK, AZ, GA, 

ID, IN, KS, KY, LA, MI, MS, OK, SC, and SD (see Table 1).

FIGURE 1. Number of SYG cases in Florida by SYG expansion nationwide, 2005– 2011. 

Source: USCCR analyses of SYG statutes for each state and SYG cases in Florida between 2005 

and 2011. 

The number of states reported as SYG states ranges between 22 and 33, depending on the criteria 

considered by a particular organization. For instance, considering only states that “allow a person 

to use deadly force where the shooter has a right to be, even when there is a clear and safe 

opportunity to avoid a dangerous situation,” the Mayors Against Illegal Guns reported 22 SYG 

states in their study.21 The Association of Prosecuting Attorneys (APA) reported 31 states in 

their report based on the following criteria: (1) whether states expanded the Castle doctrine to 

19 The states that adopted a Florida-style law that removes the duty to retreat include Alabama, Alaska, Arizona, 

Georgia, Idaho, Iowa, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, 

New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, 

and West Virginia.

20

 NRA-backed Stand Your Ground Bill Becomes Law in Wyoming, March 15, 2018, at 

https://www.nraila.org/articles/20180315/nra-backed-stand-your-ground-bill-becomes-law-in-wyoming. In 

addition, a good summary of Stand Your Ground laws can be found on the Rand Corporation website, The Effects 

of Stand-Your-Ground Laws, at https://www.rand.org/research/gun-policy/analysis/stand-your-ground.html.

21 Mayors Against Illegal Guns, 2013, “Shoot First: ‘Stand Your Ground’ laws and their effect on violent crime and 

the criminal justice system” (hereafter Mayors).

0

10

20

30

40

50

60

70

0

2

4

6

8

10

12

14

16

2005(N=1) 2006(N=14) 2007 (N=6) 2008 (N=2) 2009(N=1) 2010(N=2) 2011 (N=4)

Number of SYG Cases In Florida 

Number of SYG States 

Number of SYG States by Year 

Note. There were 39 SYG cases in Florida in 2012 
Commissioners’ Statements 5

areas outside the home; (2) diminished or eliminated the “duty to retreat;” (3) changed the 

burden of proving reasonableness to a presumption; and (4) providing blanket civil and criminal 

immunity.22 The American Bar Association (ABA) counted 33 states based on their analysis of 

statutory law and case law (including California and Illinois).

One state is one state too many. But Florida, the so-called Sunshine state23, is the incubator for 

National Rifle Association laws24 that have brought darkness into the homes of Trayvon Martin, 

Jordan Davis, and countless others. Yet proponents continue to claim that SYG is doing what it 

is intended to do. That, too, is called into question.

B. Stand Your Ground Laws Impact on Crime Reduction/Deterrence

Since the passage of the Florida statute and its progeny, there has been controversy over its efficacy

and collateral consequences. The NRA has consistently trumpeted Stand Your Ground laws as

expanding the “constitutional right to self protection.25 In contrast, the Brady Center to Prevent 

Gun Violence, dubbed it the “Shoot First” law, and noted that the “sensible requirements” of selfdefense law to “minimize conflict and protect life” were undermined by Stand Your Ground 

laws.26 However, it seems that the legislative history of the Florida law is rooted more in curbing 

“overzealous states attorneys” rather than any genuine concern rooted in safety.27 Even then, 

however, there was scant evidence supporting that claim.28 Nevertheless, for the purposes of this 

discussion, we will focus on the perceived benefits – deterrence and crime reduction.

1. National Studies – Increase in Homicides in States with Stand Your Ground Laws

A study by Cheng & Hoekstra examined state-level crime data from 2000 to 2010 from the FBI 

Uniform Crime Reports to analyze the effects of Stand Your Ground laws nationally on two types 

22 Association of Prosecuting Attorneys, available at http://www.apainc.org/self-defense-policy/. 

23 Because of its role in being a leader in new gun laws, Florida has picked up another moniker. See, e.g. Tess 

Owens (2018) How Gov. Rick Scott helped make Florida the “Gunshine State” Vice News, Aug. 28 2018, at 

https://news.vice.com/en_us/article/j5nzd3/how-gov-rick-scott-helped-make-florida-the-gunshine-state.

24 “Florida is often the first place the N.R.A. pursues specific gun rights protections . . . to set a precedent that can 

then be exported to other states,” quoting David Cole in Spies, supra. See also Adam Weinstein, How the NRA and 

Its Allies Helped Spread a Radical Gun Law Nationwide, Mother Jones, June 12, 2012 

https://www.motherjones.com/politics/2012/06/nra-alec-stand-your-ground/.

25

 https://www.nraila.org/articles/20180315/nra-backed-stand-your-ground-bill-becomes-law-in-wyoming.

26 SYG Briefing, Testimony of Elizabeth Burke, Vol. 3, page 5.

27 Spies, supra, characterizing the NRA as stating that innocent people were “being arrested, prosecuted, and 

punished for exercising self-defense that was lawful under the Constitution and Florida law.”

28 Id.
6 Race Effects of Stand Your Ground Laws

of outcomes – crime deterrence and homicide reduction. 29 Contrary to proponent’s predictions, 

the study instead found “no evidence of deterrence effects on burglary, robbery, or aggravated 

assault” but did find significant evidence that the laws lead to more homicides” and estimated that

“the laws increase homicides by a statistically significant 8 percent” or “an additional 600 

homicides per year” in states that adopted “Stand Your Ground” laws.30 Indeed, the study found 

that the Stand Your Ground law enactments across the country resulted in the largest divergence 

between SYG and non-SYG states in 40 years in terms of the rate of homicide increase in SYG 

states.31 The study concluded that it found “compelling evidence that by lowering the expected 

costs associated with using lethal force, [SYG] laws induce more of it.”

32

Another study by McClellan and Tekin used the U.S. Vital Statistics database to conduct a similar 

examination of the impact of Stand Your Ground laws. 33 The researchers raised “serious doubts 

about the claim that SYG laws make America safer.”34 Indeed, this study also tracked the Cheng 

& Hoekstra study by showing that having a SYG law is associated with a 6.8 percent increase in 

the firearms-related homicide rate.35 In contrast, states with self-defense provisions but retaining 

the duty to retreat (as contrasted with SYG’s removal of the duty as long as someone has a “right 

to be” in the location) showed no statistical increase.36 Thus, the study concluded that the removal 

of the duty to retreat caused the increase in homicides. They stated that their findings seemed to 

undermine argument that the stand your ground laws serve as a deterrent for crime.37

Under both the increased deterrence and decrease in homicide policy rationales, Stand Your 

Ground in practice appears to fail miserably on the national level.

2. Florida Study – Increase in Homicides Associated with Stand Your Ground

Due to Florida’s status as the leader in Stand Your Ground legislation, a group of doctors published 

a paper in 2017 in the Journal of the American Medical Association – Internal Medicine analyzing 

29 Cheng Cheng, Mark Hoekstra, Does Strengthening Self-Defense Law Deter Crime Or Escalate Violence? 

Evidence From Castle Doctrine, National Bureau of Economic Research, Working Paper 18134, 

http://www.nber.org/papers/w18134.

30 Id.

31 Id. at p.4.

32 Id.

33 Chandler B. McClellan, Erdal Terkin, Stand Your Ground Laws, Homicides, and Injuries, National Bureau of 

Economic Research, Working Paper 18187 at p. 7, https://www.nber.org/papers/w18187.pdf.

34 Id.

35 Id. at p. 20.

36 Id. at p. 22. The study also showed a correlation between states that adopted Stand Your Ground and higher 

emergency room visits and hospitalizations due to firearms-related injuries.

37 Id. at 32.
Commissioners’ Statements 7

the impact of Florida’s SYG law by studying homicide rates between 1999 and 2014. It found that 

the implementation of Florida’s SYG law was associated with “an abrupt and sustained increases 

in homicides, showing a 24.4% increase in homicide and a 31.6% increase in firearm-related 

homicide.38 The study also found further evidence that Florida’s stand your ground law has been 

associated with increases in both unlawful and justifiable homicides, including a 75% increase in 

determined justifiable homicides since the law passed.39 

A different 2014 study by Albert McCormick buttressed many of these findings. 40 In examining 

over 300 SYG cases in Florida, despite the claims by the NRA that Stand Your Ground was to 

protect law-abiding citizens,41 the study found that over 50% of the claimants (those asserting the 

defense) had criminal records, and almost one-third had criminal backgrounds involving at least 

one violent offense.

Indeed, the McCormick study showed that the “triggering event” precipitating the incident for 

which SYG was claimed was not, as proponents argued, a fear of violence.42 Instead, in 69% of 

the cases, the most likely incident trigger was an argument or dispute that then escalated to threat 

or violence. Defense against forcible felonies only comprised 27% of the triggering events.43 In 

other words, SYG laws have been used to protect the use of violence or deadly force for nearly 

70% of confrontations that did not begin as a forcible felony or threatening act. Rather, they help 

escalate a dispute into an incident with deadly consequences.44

C. Other Stand Your Ground Concerns

38

 David K. Humphreys, PhD., Antonio Gasparrini, PhD., and Douglas J. Wiebe, PhD, Evaluating the Impact of 

Florida’s “Stand Your Ground” Self-defense Law on Homicide and Suicide by Firearm: An Interrupted Time Series 

Study, January 2017, at https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2582988

39

 David K. Humphreys, PhD., Antonio Gasparrini, PhD., and Douglas J. Wiebe, PhD, Association Between 

Enactment of a “Stand Your Ground” Self-defense Law and Unlawful Homicides in Florida, August 2017 at 

https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2648742. See also 

https://www.reuters.com/article/us-health-homicides-standyourground/murders-surge-in-florida-in-decade-afterstand-your-ground-law-idUSKCN1AU1QL

40 Albert E. McCormick Jr., The Enforcement of Florida's "Stand Your Ground" Law: Preliminary Findings, The 

Journal of Public and Professional Sociology, Volume 6, Issue 1, Article 1, February 2014.

41 NRA-Backed Stand Your Ground Becomes Law in Wyoming, NRA Institute for Legislative Action, March 15, 

2018, https://www.nraila.org/articles/20180315/nra-backed-stand-your-ground-bill-becomes-law-in-wyoming.

42 Among the precipitating events were arguments or disputes over money or property, relationships (e.g., jealousy 

or love triangles), domestic disputes, complaints (e.g., speeding through a neighborhood, barking dog), situations 

where the claimant intervened between two other disputing parties, road rage incidents, and revenge-motivated 

incidents. See McCormick, supra, at p. 12.

43 Id.

44 SYG Briefing, Testimony of Senator Chris Smith, supra, at p. 11
8 Race Effects of Stand Your Ground Laws

There are also concerns expressed by critics over the broad application of SYG laws on law 

enforcement, the courts, and, most disturbingly of all, who should “benefit” from the law.

In 2013, the American Bar Association convened a Task Force to examine and report on the 

potential effects Stand Your Ground laws “may have on public safety, individual liberties, and the 

criminal justice system.”45 Of particular concern are provisions in many of the SYG laws that do 

not allow law enforcement to arrest an individual asserting SYG unless “probable cause” exists to 

overcome that assertion. As stated in the report:

Police officers report varying degrees of confusion regarding how to 

properly apply Stand Your Ground laws. Most Florida police officers now 

defer decisions to arrest on Stand Your Ground cases to the prosecutor’s 

office to make. This may be an unintended consequence of the law, as some 

Stand Your Ground statutes explicitly state in their language that the police 

should not vary from normal investigation procedures in Stand Your 

Ground cases. However, in jurisdictions with immunity from prosecution 

statutes, “criminal prosecution” is defined to include “detention, arrest, and 

charging.” This broad definition leaves police officers unsure about when 

they can and should arrest suspects.46

The confusion was also documented by the Tampa Bay Times in a study of nearly 200 cases in 

Florida where Stand Your Ground defenses were documented. The paper noted that the “law has 

allowed drug dealers to avoid murder charges and gang members to walk free. It has stymied 

prosecutors and confused judges.”47

“In Daytona Beach, for example, police Chief Mike Chitwood used the 

‘stand your ground’ law as the rationale for not filing charges in two drug 

deals that ended in deaths. He said he was prevented from going forward 

because the accused shooters had permits to carry concealed weapons and 

they claimed they were defending themselves at the time. ‘We're seeing a 

good law that's being abused,’ Chitwood told a local paper.”48

The inanity of the legislation is legend. In 2006, a Miami man avoided prosecution after spraying 

a car filled with gang members with 14 bullets. In 2008, a 15-year-old Tallahassee boy was killed 

in a shoot-out between rival gangs; two of the gang members successfully used Stand Your Ground 

to protect themselves from prosecution.49 As one law enforcement official stated, ‘‘Stand your 

ground’’ laws provide safe harbors for criminals and prevent prosecutors from bringing cases 

45 American Bar Association, p. iii.

46 Id. at p. 27.

47 See Tampa Bay Times, supra.

48 Id.

49 See Weinstein, supra.
Commissioners’ Statements 9

against those who claim self-defense after unnecessarily killing others.

50 The Tampa Bay Times 

analysis is replete with further examples of this “safe harbor” consequence:

One man killed two unarmed people and walked out of jail. Another shot a 

man as he lay on the ground. Others went free after shooting their victims 

in the back. In nearly a third of the cases the Times analyzed, defendants 

initiated the fight, shot an unarmed person or pursued their victim — and 

still went free. . . . During an argument at a 2009 party in Fort Myers, Omar 

Bonilla fired his gun into the ground and beat Demarro Battle, then went 

inside and gave the gun to a friend. If Battle feared for his life, he had time 

to flee. Instead, he got a gun from his car and returned to shoot Bonilla three 

times, including once in the back. Battle was not charged in the slaying.51

The 2017 amendments to the Florida law, opposed by prosecutors, have not resulted in any 

clarity.52 The Tampa Bay Times has noted that “confusion” has resulted in two different appeals 

courts rendering two different opinions on the application of the law to cases pending at the time 

the law was enacted.53 One of these cases involved a 75-year old retired police captain shooting a 

man in a movie theater after popcorn was thrown at him.54

In addition, the Tampa Bay Times article noted:

Critics contend the shift in the law will have its biggest impact before stand

your ground hearings even occur. They say the amendment could have a 

"chilling effect" on authorities, who will think twice before bringing cases 

that should reasonably go before a judge. The immunity offered by stand 

your ground is broad, said University of Miami law professor Mary Anne 

Franks, and "the statute suggests the person ... would actually be able to sue 

everybody" if a judge dismisses the charge. Stand your ground does not 

mention the specific process for filing a civil suit. But it does state that 

defendants are immune from an arrest, language that could later bolster a 

claim of wrongful arrest or imprisonment. "You have basically cowed law 

50 David LaBahn, (2013) “Stand Your Ground Laws: Civil Rights and Public Safety Implications of the Expanded 

Use of Deadly Force,” October 29, 2013. Testimony before the Committee of the Judiciary, Subcommittee on the 

Constitution, Civil Rights, and Human Rights of the United States Senate, Serial No. J–113–35, p. 15.

51 Id.

52 “In the summer of 2015, the Florida Supreme Court addressed one of Stand Your Ground’s core provisions, 

which provides a path to immunity from the legal proceedings that typically follow a charge of murder or assault. 

Under the law, a defendant is entitled to a special pretrial hearing, during which a judge can dismiss the case. The 

court ruled that in these hearings the burden of proof was on the person claiming the statute’s protections. To shift 

the onus in the other direction, the court said, would essentially require prosecutors to prove a case twice.” See

Spies, supra.

53 Kathryn Varn and Zachary T. Sampson, Think you know stand your ground? The recent Clearwater case tells us 

you’re probably wrong, Tampa Bay Times, August 17, 2018.

54

 Aaron Mesmer, Deputy who witnessed theater shooting takes stand, FoxNews13, March 1, 2017, at 

http://www.fox13news.com/news/local-news/deputy-who-witnessed-theater-shooting-takes-stand
10 Race Effects of Stand Your Ground Laws

enforcement in saying you need to be very careful proceeding in these 

cases," Franks said. "They’re being asked to adjudicate something that 

should be brought out during the trial. It’s cart before horse.55

The “bewildering” rules governing the presumption of justified use of deadly force, especially the 

roles of the police and prosecutors, resulting in attempts to repeal or weaken the law in Florida –

all of which failed.56 

D. Has Stand Your Ground Increased Safety

The principle rationale propelling Stand Your Ground is that it makes us safer. Our safety is 

increased. Is that true?

In a study of the Florida SYG cases collected by the Tampa Bay Times, the answer would be no. 

If safety is defined as loss of life, SYG encounters have a mortality rate of 60%. If increases in 

the homicide rate, as documented above, means decreased safety, the answer would be no. If a 

fight breaks out between two people, are you – as a bystander – safer if neither are armed, one is 

armed, or both are armed? 

David LaBahn, the President of the Association of Prosecuting Attorneys, expanded on this theme:

By expanding the realm in which violent acts can be committed with the 

justification of self-defense, Stand Your Ground laws have negatively 

affected public health and undermined prosecutorial and law enforcement 

efforts to keep communities safe.57

Proponents of Stand Your Ground continue to argue that possibility that someone is armed will 

increase the fear in a criminal and deter crime. Based on the testimony and examples in the 

literature, it is difficult to believe anything other than the fear of law-abiding citizens that 

untrained, unqualified people with concealed handguns are walking the streets will increase.

And for African Americans and other minorities, do they feel safer and experience less fear 

knowing that a wrong look, an honest dispute, or even an issue that rises to an argument can end 

with their life being taken? A recent killing in Florida reinforces that rather than protecting the 

innocent, Stand Your Ground continues to resonate in tragedy.

55 Id.

56 SYG Briefing, Testimony of Senator Chris Smith, Vol. 1, pp. 13-15.

57 David LaBahn, (2013) “Stand Your Ground Laws: Civil Rights and Public Safety Implications of the Expanded 

Use of Deadly Force,” October 29, 2013. Prepared Statement for the Committee of the Judiciary, Subcommittee on 

the Constitution, Civil Rights, and Human Rights of the United States Senate, Serial No. J–113–35, p. 66.
Commissioners’ Statements 11

E. The Killing of Markeis McGlockton

On July 19, 2018, a dispute over a parking space at a convenience store in Clearwater, Florida 

turned deadly. Michael Drejka, after being shoved to the ground, pulled his weapon and fired 

once into the chest and killed Markeis McGlockton, who had pushed Drejka but started to back 

off, according to video surveillance.58 The Sheriff for the jurisdiction – Pinellas County -- refused 

to prosecute, citing his interpretation of Florida’s SYG law. In statements to the press, the Sheriff 

reiterated that the “Florida Legislature had created a ‘subjective standard’ for determining whether 

the person who used force was in fear of bodily harm, but suggested that his hands were tied 

because his department could be sued if it failed to follow the law’s requirements.”59

In later statements, the Sheriff doubled down on his statement, saying "The law has taken away 

law enforcement discretion to arrest unless there is no 'stand your ground' as a matter of law . . . it 

must be so clear that as a matter of law 'stand your ground' does not apply in any way to the facts 

and circumstances that you're presented with. That is not the situation here. The facts are not so 

clear that this is absolutely outside the boundaries of 'stand your ground.'"60

Three weeks later, the Pinellas-Pasco State Attorney filed manslaughter charges against Drejka.61 

Many critics have described the push for “Stand Your Ground” laws as a solution in search of a 

problem.62 Others have noted that the law pours accelerant on seemingly minor incidents as above 

– a shove, a look – and converts them into something much more serious – deadly serious.63 As 

noted above, studies do not bear out any deterrent impact of the law, and in fact shows a strong 

correlation in the rise of the firearms-related deaths. Law enforcement is uncertain how to 

investigate and prosecute these cases. And, of most interest to the Commission, this last act 

involved a white shooter – Drejka – and an African American victim – McGlockton. 

58

 Gina Martinez (2018) A Fatal Shooting Is Sparking New Debate About Florida's Stand Your Ground Law. It 

Could Be Even Harder to Prosecute This Time, Time Magazine, July 25, 2018, at https://time.com/5346981/floridastand-your-ground-markeis-mcglockton/.

59

 Julia Jacobs (2018) Stand Your Ground’ Cited by Florida Sheriff Who Declined to Arrest Suspect in Killing, New 

York Times, July 21, 2018, at https://www.nytimes.com/2018/07/21/us/florida-stand-your-ground.html.

60

 Bill Hutchinson (2018) Sheriff says he made 'correct' decision in Florida 'stand your ground' shooting of 

unarmed, Jul 31, 2018, ABC News at https://abcnews.go.com/US/sheriff-made-correct-decision-florida-standground-shooting/story?id=56937230.

61

 Kathryn Varn and Zachary T. Sampson (2018) Shooter charged with manslaughter in Clearwater stand your 

ground case, Tampa Bay Times, August 13, 2018, at http://www.tampabay.com/news/publicsafety/Shooter-chargedwith-manslaughter-in-Clearwater-stand-your-ground-case_170853729.

62 See, e.g., American Bar Association at p. ; Arkadi Gerney and Chelsea Parsons (2013) License to Kill, How Lax 

Concealed Carry Laws Can Combine with Stand Your Ground Laws to Produce Deadly Results, Center for 

American Progress, September 2013, p. 6, at https://cdn.amgt wouldericanprogress.org/wpcontent/uploads/2013/09/StandYrGround.pdf.

63 SYG Briefing, Testimony of Senator Chris Smith, supra.
12 Race Effects of Stand Your Ground Laws

The recent shooting of Markeis McGlockton brings us full circle to the crux of the hearing, and of 

this Statement – the role that racial bias plays in the deadly manner in which Stand Your Ground 

laws play out. And it begins with two young African Americans – Trayvon Martin and Jordan 

Davis. And, as you will see, the confluence of all the issues raised heretofore are represented, in 

full, in the deaths of these two young men.

II. TRAYVON MARTIN AND JORDAN DAVIS

A. Trayvon Martin

Trayvon Martin was born in February 1995. He lived with his mother, Sybrina Fulton, in Miami 

Gardens, but was visiting his father, Tracy Martin, in nearby Sanford on February 27, 2012. During 

a break in a televised basketball game, he left his father’s home to buy some Skittles and iced tea 

at a nearby convenience store. On his way back, he was followed by George Zimmerman, who 

belonged to a neighborhood watch program, ironically, for the neighborhood where Trayvon’s 

father lived.

Zimmerman was a part-time student, and carried a concealed semi-automatic for which he had a 

permit. From the previous August to February, he had called the police several times to report on 

“suspicious” persons, all of whom were black.

Zimmerman called the police while following Trayvon in his car, reporting that there was a 

suspicious person in his neighborhood. The dispatcher at the time instructed Zimmerman to 

remain in his car and await the arrival of the police. Zimmerman disregarded this, and continued 

his pursuit of Trayvon.64

At some point, Trayvon called his girlfriend and told her he was being followed, and he began to 

run.

What happened next has been the crux of examination and a trial. Witnesses heard shouts of help. 

Shots were fired. When police arrived on the scene minutes later, they found Trayvon face down, 

shot in the chest, dead. Zimmerman was at the scene, bleeding from the head.

Police took Zimmerman into custody, but released him from the station without any charges. 

Among the reasons later given by the Police Chief was language taken from the Stand Your 

64 See https://www.miamiherald.com/news/state/florida/article135413214.html.
Commissioners’ Statements 13

Ground statute65 stating that he was prohibited from arresting Zimmerman and that it could have 

held the city liable.66

It was only after Trayvon’s parents began questioning his release and contacted attorney Benjamin 

Crump, that the Florida criminal justice began to pay attention. 

On March 12 – 2 weeks after Trayvon’s death – the local Police Chief who had refused to charge 

Zimmerman turned over the investigation to the State’s Attorney office. Zimmerman was charged 

with second-degree murder on April 11, 2012. The trial began on June 24, 2013, after the selection 

of an all-female jury. The following month, on July 13, 2013, the six-member jury acquitted 

Zimmerman of murder.

Throughout the murder trial, some commentators sought to distance the trial from the Stand Your 

Ground law.67 That flies in the face of the jury instructions and the plain law. Stand Your Ground 

is not a separate section of the law. It was part of the self-defense instructions sought by the 

Zimmerman team and read by the judge.68 

Perhaps the best summation of the application of Stand Your Ground in the Zimmerman trial was 

made by Arkadi Gerney and Chelsea Parsons:

The Stand Your Ground provision of Florida’s self-defense law cannot be 

severed from the other elements of that body of law; it has become part of 

the overall conception of what constitutes justifiable use of force in that 

state. Stand Your Ground expands upon the traditional concept of selfdefense by allowing the use of deadly force in self-defense, even when 

lesser means of force would suffice or safe escape is possible. All the 

elements of Florida’s expansive body of self-defense law come into play 

when a person claims their use of deadly force was justified, even if the 

65 The relevant sections of FL. Statutes 776.031: (2) A law enforcement agency may use standard procedures for 

investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the 

person for using or threatening to use force unless it determines that there is probable cause that the force that was 

used or threatened was unlawful. (3)The court shall award reasonable attorney’s fees, court costs, compensation for 

loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the 

court finds that the defendant is immune from prosecution as provided in subsection (1). (emphasis added).

66

 Trymaine Lee (2012) Trayvon Martin Case: Police Chief Bill Lee Under Fire With ‘No Confidence’ Vote, 

Huffington Post, Mar 22, 2012, at https://www.huffpost.com/entry/trayvon-martin-case-george-zimmerman-billlee_n_1371635.

67 Jacob Sullum (2013) Sorry, the Zimmerman Case Still Has Nothing to Do With 'Stand Your Ground’” Reason, 

July 14, 2013, at https://reason.com/2013/07/14/sorry-the-zimmerman-case-still-has-nothi.

68 Ta-Nehisi Coates (2013) How Stand Your Ground Relates To George Zimmerman, The Atlantic, July 16, 2013, at 

https://www.theatlantic.com/national/archive/2013/07/how-stand-your-ground-relates-to-georgezimmerman/277829/.
14 Race Effects of Stand Your Ground Laws

defendant does not seek to use Stand Your Ground to avoid arrest or 

prosecution or directly invoke it as part of their formal defense.

The Zimmerman trial provides an example of this. Although Zimmerman

did not seek a Stand Your Ground hearing and his attorneys did not directly 

invoke this law as part of the formal defense, the expanded notion of one’s 

right to use lethal force in self-defense was part of the judge’s instructions 

to the jury. The judge instructed the Zimmerman jury on all aspects of the 

state’s expansive self-defense laws, which include a person’s right to use 

deadly force even when safe retreat is an option. It is in the context of this 

entire body of law that the jury was asked to evaluate Zimmerman’s conduct 

and ultimately found his conduct to be justified. In fact, both of the jurors

who have spoken out since the trial indicated that the Stand Your Ground 

law played a role in their deliberations.69

Interestly, it was brought out at trial that Zimmerman knew exactly how Stand Your Ground 

worked.70

Sybrina Fulton and Tracy Martin established the Trayvon Martin Foundation after Trayvon’s 

death. In 2018, Rest in Power: The Trayvon Martin Story, aired on BET and the Paramount 

Network. It traced the life of Trayvon Martin and the legacy from his death, which included giving 

rise to the Black Lives Matter movement.71

B. Jordan Davis

Jordan Davis was also a 17-year old high school student on November 23, 2012. He liked roller 

skating and playing video games. His mom, Lucy McBath, lived in Atlanta, and his dad, Ron 

Davis lived in Jacksonville, Florida. Just 18 months previously he had moved to Jacksonville to 

live with his dad.72

The day after Thanksgiving, he and three friends pulled up to a convenience store, and one of his 

friends went into the store. Michael Dunn and his girlfriend parked in the adjacent space, and 

69 Arkadi Gerney and Chelsea Parsons (September 2013) “License to Kill: How Lax Concealed Carry Laws Can

Combine with Stand Your Ground Laws to Produce Deadly Results”, Center for American Progress, p. 5.

70 Barbara Liston (2013) Zimmerman studied Florida's 'Stand Your Ground' law: witness, Reuters, July 3, 2013, at 

https://www.reuters.com/article/us-usa-florida-shooting/zimmerman-studied-floridas-stand-your-ground-lawwitness-idUSBRE9620RL20130703.

71 Jessica Guyn (2015) “Meet the Woman Who Coined #BlackLivesMatter,” USA Today, March 4, 2015, 

https://www.usatoday.com/story/tech/2015/03/04/alicia-garza-black-lives-matter/24341593/.

72 Mike Hayes (2014) “The Life And Last Days Of Jordan Davis,” BuzzFeed News, March 31, 2014, at 

https://www.buzzfeednews.com/article/mikehayes/the-life-and-last-days-of-jordan-davis.
Commissioners’ Statements 15

Dunn began complaining about the loud rap music coming from Davis’ car while his girlfriend 

went into the store.

At some point, an argument erupted between the Dunn and the occupants of the other car, and then 

Dunn, who had a concealed weapons permit, took out a gun from his glove compartment and began 

shooting into the other car, and continued shooting as the car backed out and pulled away.73

Jordan Davis, hit several times, was dead. Dunn, after the shooting, drove to a hotel and ordered 

pizza. He never contacted the police until he was arrested.74

Dunn was tried and convicted of first-degree murder in 2014, and is serving a life sentence.75 

During the trial proceedings, his lawyers argued that he was acting in self-defense, both in jury 

arguments, instructions, and in their appeal arguing that the prosecution had not overcome the 

presumption that he had acted in self-defense. Throughout, they referenced the Stand Your 

Ground statute.76

Jordan’s mother, Lucy McBath, became an anti-gun advocate, as well as an advocate against Stand 

Your Ground laws. In November 2018, she was elected to the United States Congress.77

Unlike the Trayvon Martin killing, there were plenty of witnesses, including Davis’ friends and 

Dunn’s girlfriend. There was no dispute that both parties were in their cars at the time the shooting 

started, that Davis and his friends had no weapons, and that Dunn had left his car to continue 

shooting even after the teenagers’ fled the scene. 

Both Trayvon Martin and Jordan Davis deserved to be living full lives at the time of our hearing 

and of this statement. Trayvon had dreams of being a pilot. Jordan was just a lively, “mouthy” 

kid hanging out with his new friends. Neither had a chance to see where their lives would take 

them.

73 The Guardian (2014) “Michael Dunn sentenced to life without parole for killing of Florida teenager” 

https://www.theguardian.com/us-news/2014/oct/17/michael-dunn-sentenced-life-without-parole-florida.

74 Katie McDonough (2014) Jordan Davis' father on Michael Dunn verdict: We do not accept a law that views our 

children as "collateral damage", Salon, February 16, 2014, 

https://www.salon.com/2014/02/16/jordan_davis_father_on_michael_dunn_verdict_we_do_not_accept_a_law_that_

views_our_children_as_collateral_damage/.

75 Jasper Scherer, Fla. (2016) ‘Loud Music’ murder: Firing into car full of teens playing rap music not ‘self-defense,’ 

court rules, Washington Post, November 18, 2016, at https://www.washingtonpost.com/news/morningmix/wp/2016/11/18/fla-loud-music-murder-firing-into-car-full-of-teens-playing-rap-music-not-self-defense-courtrules/?utm_term=.c73782e9068c.

76 Nicole Flatow (2014) “Juror: Some On Panel Thought The Killing Of Unarmed Teen Jordan Davis Was 

‘Justified’” ThinkProgress, February 20, 2014, at https://thinkprogress.org/juror-some-on-panel-thought-the-killingof-unarmed-teen-jordan-davis-was-justified-33df7991e1f3/.

77 https://mcbath.house.gov/.
16 Race Effects of Stand Your Ground Laws

III. DISPROPORTIONALITY IN APPLICATION OF STAND YOUR GROUND 

LAWS

The studies that found that SYG laws were associated with higher homicide rates and, to the ability 

that they were able, to identify the broad ethnicities of the people involved in SYG incidents.

First, the McClellan and Terkin’s national studies that the greatest increase in homicide rates was 

for or white males (17.1%). For firearms-related homicides, the increase in white males was 

11.6%. They found no statistically significant increase for black males or the African-American 

population.78

The Humphries et al. study found similar in homicide rates when just studying Florida. When 

differentiating for firearms-related homicides, their findings “suggested a statistically significant 

increase in homicide by firearm” for whites (45.1%) ; African Americans (22.9%); those 20 to 34 

years (35.8%); those 35 years and older (21.5%); and males (31.8%).79 

These studies, therefore, do not show a disproportionate increase in the deaths of protected classes 

as a result of SYG laws. The vast majority of concealed weapon permit holders are white,80 the 

largest increases in firearms-related homicides are white. As a matter of impact on death rates, 

there does not appear to be any statistically significant disparity that would imply that Stand Your 

Ground results in more deaths of African Americans.

However, that does not begin to end the analysis. It is here that all the issues relating to the fairness 

of the American justice system on black Americans come to the fore, for in studying the parties to 

an SYG confrontation, this pattern emerged: 

In homicides where the shooter is black and the victim is white, those are 

ruled to be justified 1.2 percent of the time. In cases where the shooter is 

white and the victim is black those are ruled to be justified 11.2 percent of 

the time. Ten times more likely if the shooter is white and the victim is 

black, than if the shooter is black and the victim is white.81

In fact, despite the fact that a racial disparity already existed in justified 

shootings, i.e., if the shooter was white and victim black it was ruled to be 

justified 9.5% of the time, and the inverse was 1.1%., the disparity grows 

when Stand Your Ground is enacted. 

82

78 McClellan and Terkin, supra, pp. 21-23.

79 Humphries et al, supra. 

80 John Lott, Concealed Carry Permit Holders Across the United States: 2018, August 2018, 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3233904.

81 SYG briefing, Testimony of John Roman, Vol. 1, p. 25.

82 Id. (emphasis added).
Commissioners’ Statements 17

In other words, if you are a black American, the chances of your death being ruled “justified” and, 

therefore, immune to prosecution increases if you die in a Stand Your Ground state.83 The chance 

of your family being able to seek justice goes down if you are killed in a Stand Your Ground state. 

That chance that your killer gets off scot-free increases if you are black and your killer is white in 

a Stand Your Ground state.

In an especially telling summation, Professor John Roman – who testified at our hearing – also 

wrote an article that describes the statistical probabilities of the outcome of an individual fitting 

the profiles of the Trayvon Martin proceeding. In relevant part:

Table 3 describes the likelihood a homicide is ruled justified when there is 

a single victim and single shooter, they are both male, they are strangers, 

and a firearm is used. In the six years of FBI data, this fact pattern occurred 

in 2,631 cases.

Table 3. Percentage of Homicides Ruled Justified, Martin Case Attributes, 2005-2010

Total

Non-Stand Your 

Ground states

Stand Your Ground 

states

White on white 16.28 12.95 23.58**

White on black 42.31 41.14*** 44.71***

Black on white 8.57 7.69** 11.10

Black on black 10.14 10.24*** 9.94***

Total 14.90 2.15*** 3.67

Source: 2005-10 FBI Supplementary Homicide Reports.

* p < 0.05; **p < 0.01 ***; p <0 .001

Overall, the rate of justifiable homicides is almost six times higher in case 

with attributes that match the Martin case. Racial disparities are much 

larger, as white-on-black homicides have justifiable findings 33 percentage 

points more often than black-on-white homicides. Stand Your Ground laws 

appear to exacerbate those differences, as cases overall are significantly 

83 The racial disparity in treatment of “justified” killings is not new. The Marshall Project conducted a study of FBI 

datasets and came to this conclusion: “When a white person kills a black man in America, the killer often faces no 

legal consequences. In one in six of these killings, there is no criminal sanction, according to a new Marshall Project 

examination of 400,000 homicides committed by civilians between 1980 and 2014. That rate is far higher than the 

one for homicides involving other combinations of races. In almost 17 percent of cases when a black man was killed 

by a non-Hispanic white civilian over the last three decades, the killing was categorized as justifiable, which is the 

term used when a police officer or a civilian kills someone committing a crime or in self-defense. Overall, the police 

classify fewer than 2 percent of homicides committed by civilians as justifiable. The disparity persists across 

different cities, different ages, different weapons and different relationships between killer and victim.” See

https://www.themarshallproject.org/2017/08/14/killings-of-black-men-by-whites-are-far-more-likely-to-be-ruledjustifiable.
18 Race Effects of Stand Your Ground Laws

more likely to be ruled justified in SYG states than in non-SYG states (p = 

0.02).84

The data used by Professor Roman in both his oral and written testimony, as well as his research, 

came from the Federal Bureau of Investigations Supplementary Homicide Report (SHR), the only 

dataset that includes information about the disposition of a proceeding, including whether a 

homicide was deemed justified.85 This information showed that, the, controlling for variables, the 

odds a white-on-black homicide being found justified is 281 percent greater than the odds a whiteon-white homicide is found justified.86

 This is an extremely sobering, and powerful, statistic.

Ironically, Professor Roman’s data does not include the state of Florida because Florida does not 

participate in the FBI’s Supplementary Homicide Report database.87 However, a team of health 

scientists studied the Tampa Bay Times data of 237 cases from 2012-2013 and updated all the 

unresolved case statuses for their analysis in 2015.88 They then applied traditional and accepted 

social scientist analytical techniques to the data and their conclusion was no less startling than that 

of Roman: “SYG legislation in Florida has a quantifiable racial bias that reveals a leniency in 

convictions if the victim is non-White, which provides evidence towards unequal treatment under 

the law.”89 

Their examination of the data also confirmed that a suspect was twice as likely to be convicted if 

the victim were white, versus non-white, where an SYG defense was asserted. This confirms the 

shift that Roman saw in the national data. It means that if you are an African America asserting 

an SYG defense where a white person was killed, under their analysis you have double the chances 

of being convicted as opposed if the victim were black. If the victim were African American, and 

the alleged killer asserting the SYG defense were white, he also better than double the odds of 

being let go.

The combination of these two social scientists’ studies – one nationally, one focused on Florida –

provide a compelling case that there is racial bias in the application of SYG laws that tilt against 

justice for African American victims, and bias in the application of justice depending on whether 

you are an African American or white person accused of shooting another white person. Stand 

Your Ground, in other words, is a perfect illustration of the disparity in the administration of justice 

84 John K. Roman, Ph.D. (2013) Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI 

Supplementary Homicide Report Data, The Urban Institute, July 2013, at p. 9 (emphasis in blue added to Table).

85 Id. at p.2.

86 Id. at p. 9.

87 https://www.ojjdp.gov/ojstatbb/ezashr/asp/off_display.asp.

88 Nicole Ackermann, Melody S. Goodman, Keon Gilbert , Cassandra Arroyo-Johnson, Marcello Pagano, Race, law, 

and health: Examination of ‘Stand Your Ground’ and defendant convictions in Florida, Social Science & Medicine 

142 (2015) 194-201.

89 Id.
Commissioners’ Statements 19

if you are an African American – whether a victim, or unable to assert a successful Stand Your 

Grand challenge.

IV. THE IMPACT OF CONCEALED CARRY LAWS 

The confluence of Stand Your Ground and concealed-carry laws90 is, to even the casual observer, 

an invitation to use deadly force. Seven years after Stand Your Ground passed in Florida, the 

number of concealed carry permits tripled.91 In 2019, Florida leads the country by far with nearly 

2 million permits issued for a state population of nearly 22 million – nearly 1 in 10 Floridians carry 

concealed weapons. Florida is, to no one’s surprise a state that is a “shall issue” state with regard 

to concealed carry weapon permits. Indeed, of the states associated with Stand Your Ground laws, 

almost all are “shall issue” or permitless states. According to one pro-gun website, there are over 

17 million concealed carry permits issued across the country.92

Civil immunity and concealed carry laws in the context of SYG were addressed a number of times 

during the Commission’s briefing. Panelists expressed concern about the “very dangerous” and 

often lethal circumstances created by the combined effects of concealed carry laws and “shifting” 

civil immunity.93 Most SYG states have provisions that protect SYG claimants from civil law 

suits with varying degrees.94 Over half of these SYG states provide what is considered “blanket” 

immunity, which prohibits anyone from bringing law suits against SYG claimants―including 

injured bystanders and their dependents (AL, AZ, FL, KS, KY, LA, MS, NC, OK, SC, and TX).95

Other states offer partial immunity that prohibits only the aggressor or related party from bringing 

a civil suit (AK, GA, MI, MT, NH, PA, TN, and WV).96 

90 “Concealed-Carry” laws refers to Of the 35 states that generally require a CCW permit in order to carry 

concealed weapons in public, eight states and the District of Columbia have “may issue” laws, which grant the 

issuing authority wide discretion to deny a CCW permit to an applicant if, for example, the authority believes the 

applicant lacks good character or lacks a good reason for carrying a weapon in public. 14 “shall issue” states provide 

the issuing authority a limited amount of discretion, and 13 “shall issue” states provide no discretion to the issuing 

authority. Nearly every state places some restrictions on where concealed firearms may be carried, such as 

restrictions on carrying in bars, schools, and hospitals, and at public sporting events.

91 Tampa Bay Times, supra.

92 https://crimeresearch.org/2018/08/new-study-17-25-million-concealed-handgun-permits-biggest-increases-forwomen-and-minorities/.

93 See SYG Briefing. Elizabeth Burke, p. 86. She discusses in detail consequences presented by the intersection of 

conceal carry laws and civil immunity. 

94 Civil immunity, in the context of SYG, shields a person who invokes SYG from liability in a civil law suit. 

Generally, when a person is tried on a criminal matter, the aggrieved party also seeks to sue the defendant in civil 

court to recover monetary damages. 

95 Mayors Against Illegal Guns, 2013, “Shoot First: 'Stand Your Ground' laws and their effect on violent crime and 

the criminal justice system” (hereafter Mayors).

96 Id. However, in these states, injured bystanders or their family members can bring civil suits. 
20 Race Effects of Stand Your Ground Laws

The deadly cocktail of Stand Your Ground and concealed-carry is a license to kill. As one advocate 

stated, “[i] encourages vigilante law. . . So one of the critical problems with the Stand Your Ground 

law is that before, that person would have had the impetus to leave, to go away. . . . But the Stand 

Your Ground laws allow people to stand, shoot, and murder with no consequences.”97

It cannot be understated that concealed-carry makes it possible for Stand Your Ground to be 

deadly. Over two-third of the cases in the Tampa Bay Times studies involved guns.98 But of those 

cases, in 60% of the cases the person claiming the benefit of SYG was armed with a gun, whereas 

over 60% of the victims were unarmed.99 And it is not surprising that nearly 60% of the persons 

who were the “assailant” in an SYG situation died.100 

It is no coincidence that the intersection between “shall issue” and “no permit required” states and 

states with Florida-style SYG laws is almost a 1:1 match. And, therefore, it should come to no 

one’s surprise that states with Florida-style “shall issue” permit laws were significantly associated

with increases in their homicide rates, with 6.5% higher total homicide rates, 8.6% higher firearm 

homicide rates, and 10.6% higher handgun homicide rates.

101

 It was entirely expected that Florida 

experienced the surge in homicide rates after the adoption of Stand Your Ground, as documented 

in Section I of this statement.

As the study of Stand Your Ground, weapon availability, and race continues, it would be a critical 

area of study to understand whether there is any racial bias in the granting or rescinding of 

concealed carry gun permits. It would be a critical area of study to determine the application of 

conditions, even in “shall issue” states like Florida, that would enable a state to deny someone with 

a clear history of disturbing behavior to be denied the right to carry a gun. It has been a source of 

continual puzzlement that George Zimmerman even had a concealed weapons permit, given his 

history of assaulting a police officer and history of domestic violence. In 25 other states, this could 

have resulted in the denial of his application for a carry permit.102 In Florida, no such bar existed. 

In fact, years later, and numerous other run-ins with the law, Zimmerman has yet to lose his 

permit.103

97 ABA Report, p. 26 (quoting Eva Jefferson Patterson).

98 Tampa Bay Times, supra.

99 McCormick, supra, at pp. 14-16.

100 Id. at 17.

101 Michael Siegel et al. “Easiness of Legal Access to Concealed Firearm Permits and Homicide Rates in the United 

States”, American Journal of Public Health 107, no. 12 (December 1, 2017): pp. 1923-1929.

102 Arkadi Gerney and Chelsea Parsons, supra, at p. 15. According to the authors, Florida would have required to 

have been convicted of a violent crime within the last 3 years to have been denied a permit. Id.

103 George Zimmerman's Stalking Victim Demands His Concealed Weapon License be Revoked (November 2018) 

https://theblast.com/george-zimmerman-stalking-victim-demands-his-concealed-weapon-license-be-revoked/ 
Commissioners’ Statements 21

V. IMPLICIT BIAS AND THE “REASONABLE BELIEF” STANDARD

A thread that continues throughout any analysis of Stand Your Ground is the presence within its 

legislative language that a person using deadly force must reasonably believe that that using “such 

force is necessary to prevent imminent death or great bodily harm . . . or to prevent the imminent 

commission of a forcible felony.”104

What constitutes reasonable belief? We have seen that law enforcement officials in Florida have 

used an extremely broad, subjective standard. This is due, in no small part, to the deliberate 

omission of any criteria for what constitutes a reasonable belief, either from the Legislature or the 

courts.105 According to one commentator, the statute instead created a “presumption of fear”106

that moves with the individual, creating an arena of lethal force that is already presumed to be 

legal, notwithstanding whether the force was really proportional to the apparent threat.107

Zimmerman received a one-year probation sentence for stalking, and the person stalked has requested that Florida 

revoke his license. It is unknown whether any action has been taken or reported.

104 FL. Statutes 776.012(2).

105 See Texas Penal Code Sec. 9.32.(b) The actor's belief under Subsection (a)(2)(B) [to prevent the other's 

imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or 

aggravated robbery] that the deadly force was immediately necessary as described by that subdivision is presumed 

to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the 

actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, 

the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of 

a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not 

provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at 

the time the deadly force is used is not required to retreat before using deadly force as described by this 

section. 

106 Katheryn Russell-Brown, 2014, “Go Ahead and Shoot, The Law Might Have Your Back: History, Race, Implicit 

Bias, and Justice in Florida’s Stand Your Ground Law,” in D. Johnson, Y.P. Warren, and A. Farell, eds., Deadly 

Injustice: Trayvon Martin, Race, and the Criminal Justice System, (New York University Press 2015).

107 Ronald Sullivan, (2013) “Stand Your Ground Laws: Civil Rights and Public Safety Implications of the Expanded 

Use of Deadly Force,” October 29, 2013. Testimony prepared for the Committee of the Judiciary, Subcommittee on 

the Constitution, Civil Rights, and Human Rights of the United States Senate.
22 Race Effects of Stand Your Ground Laws

In the absence of an objective reasonable person standard, the person inserting themselves into a 

situation where they will eventually claim a Stand Your Ground defense is allowed to import their 

own biases to color the lens through which they view a situation. It is what they believe. In other 

words, Stand Your Ground legitimizes a person’s implicit bias. The challenge is that the data is 

implied – it relies on social science into the type of racism that is not overt, but which taints the 

entire criminal justice ecosystem.

This Commission and many social science researchers, along with racial crime statistics reported 

by state and federal agencies, allows an understanding of how negative perceptions of racial 

minorities’ criminality lead to uneven racial treatment in the criminal justice system, which in turn 

implicitly drives feelings of racial bias and discrimination. 

David Harris, in his testimony to the Commission, talked about this at length. In shorthand, he 

called it, in essence, a mental rule of thumb. In psychological terms, he credited that rule of thumb 

as a “heuristic.”108 Both Harris, in his written testimony, and Katheryn Russell-Brown, in an article 

we were provided, refer to what to the “suspicion heuristic”―which describes the psychological 

process through which many people link blackness with criminality.109 Mr. Harris stated how this 

suspicion heuristic works:

You have a negative view of blacks for the most part, implicit. This leads to beliefs 

that blacks are prone to criminality. That they are violent. And there is a lot of other 

research besides Mr. Goff's that goes in this same direction. So what you get is an 

automatic very rapid association between blacks, that is not just about negativeness, 

but also about violence and criminality . . . . [I]n the specific context of stand your 

ground laws what this will mean is that more people will think of black people they 

meet as dangerous, as criminal, and as violent. And that is going to result in more 

blacks being the victims in stand your ground shootings. It has the other effect of 

when a white person or somebody goes to court and says, "I stood my ground," and 

the victim is black, the jury harboring those very same biases will be more inclined 

to acquit when the victim is black.110

In other words, implicit bias, including a suspicion heuristic about African-Americans, becomes a 

means of justifying killing them.

Ms. Russell-Brown has written of the importance of examining the historical roots of the 

association of race with certain criminal laws and criminal justice polices that exist today. She 

explains:

108 SYG Briefing, Testimony of David Harris, Vol. 2, pp. 9-10. 

109

 Ms. Russell-Brown specifically attributed the “suspicion heuristic” to the work of L. Song Richardson & Phillip 

Goff, 2012, Self Defense and the Suspicion Heuristic, 98 IOWA L. REV. 293, 295.

110 Harris testimony, supra, at pp. 10-11.
Commissioners’ Statements 23

We must examine the historical relationship between the law and African 

Americans and how the law has been utilized to respond to racialized threats. These 

images drive our perceptions of which groups are to be feared, who is fearful, the 

appropriate responses to fear, and whether that fear is justified under the law.... 111

She further states: 

For decades, scholars have identified laws and legal practices that have created 

stark racial disproportionality within the justice system, including the war on drugs, 

racial profiling by law enforcement, mandatory-minimum sentences, felony 

disenfranchisement, and mass incarceration.112

Similarly, Khalil Gibran Muhammad has developed a discussion of how the perception of

criminality in the black community began in early nineteenth century practices of using racial 

crime statistics to support discriminatory public policies. This manifested in the “negro criminal” 

discussed in his book, Condemnation of Blackness, where he argues: 

Beginning in the late nineteenth, statistical rhetoric of the “Negro criminal” became 

a tool to shield white Americans from the charge of racism when they used black 

crime statistics to support discriminatory public polices and social welfare. 113

Harris, Russell-Brown, Goff, Richardson and Muhammad did not develop their positions in a 

vacuum. Beginning in the 1990s, it became apparent that racial crime statistics reported by some 

state and federal officials showed an uneven criminal justice response to racial minorities’ 

criminality. Traffic stop data shows that blacks are stopped considerably more often than whites, 

yet are less likely to be found with contraband.114 “Driving while black” became a staple of 

conversation and debate that continues to this day.115 The Department of Justice (DOJ) Office of 

Juvenile Justice and Delinquency (OJJPD) Relative Rate Index (RRI) shows that minorities are 

disproportionately over-represented at each stage of case processing (e.g., arrests, sentencing, 

placement in secure facilities, etc.), except for diversion programs.116 

111 Russell-Brown, supra.

112 Id.

113 K.G. Muhammad, 2010, Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, 

Cambridge, MA: Harvard University Press. 

114 2013 Missouri Vehicle Stops Executive Summary, available at https://ago.mo.gov/divisions/litigation/vehiclestops-report/vehicle-stops-report---2013-executive-summary. 

115 Excellent discussions of the “driving while black” phenomenon can be found in David A. Harris (1997) 

“’Driving While Black’ and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops,” 87 J. 

Crim. L. & Criminology 544; David Harris (1999) “The Stories, the Statistics, and the Law: Why ‘Driving While 

Black’ Matters,” 84 Minnesota l. Rev. 365.

116 Relative Rate Index (RRI), DOJ OJJDP.
24 Race Effects of Stand Your Ground Laws

Pretextual traffic stops and other manifestations of racial profiling essentially treat 

race as evidence of crime, targeting certain segments of the population as potential 

criminal offenders solely by virtue of their race. Thus, through racial profiling, 

American’s law enforcement officials not only “racialize” crime by assuming most 

crimes are committed by minorities, they also “criminalize” race. In so doing, they 

place the primary burden of law enforcement on the backs of innocent minorities 

who are the victims of racial and ethnic stereotyping. Innocent minorities are 

harassed more than innocent white Americans, and wrongdoing by minorities is 

punished more harshly than wrongdoing by whites.117

A number of prominent research studies also demonstrate that the negative portrayal of minorities 

in the criminal justice system creates and perpetuate the “suspicion heuristic” that trigger racial 

disparities.

118 In perhaps the most extreme and chilling example, a research study analyzed bias on 

perceived weapon holders by police officers. In the test, black and white subjects were holding 

harmless objects. The analysis revealed race effects that led to (1) black subjects being incorrectly 

shot at more than Whites: (2) a perceptual sensitivity effect (when held by black subjects guns 

were less distinguishable from harmless objects) and (3) a response bias effect (objects held by

the black subjects were more likely to be treated as guns).119

The above shows how the passage and institutionalization of SYG law are inevitably influenced 

by mainstream narratives of race and crime. For these reasons, as David Harris pointed out to the 

Commission120: 

The combined potential impact of implicit bias against blacks and the suspicion 

heuristic on the use of SYG laws is potentially catastrophic. SYG laws lower the 

potential cost of engaging in deadly violence; one can use deadly force in any public 

place, even when avoiding violence is possible, and still use the SYG defense to 

argue that the jury should not convict. Implicit bias against blacks, especially seeing 

blacks as likely to be violent or dangerous, increases the likelihood that people with 

weapons will shoot them; armed people are more likely to feel fear, and therefore 

to shoot. And when the victim is black, members of juries—also infected with the 

same implicit bias—are more likely to sympathize with the shooter. 

117 Ronald H Weich, Carlos T Angulo, Leadership Conference on Civil Rights & the Leadership Conference 

Education Fund (200) Justice on Trial: Racial Disparities in the American Criminal Justice System (Collingwood 

Press), p. 7.

118 From Ackerman, et. al, supra, at p. 199: “Whites still have limited social cues to tell differences among Black 

men's professional status (e.g., criminal, janitor, teacher, physician) in the 21st century and often assume the worse. 

Feagin states, “Many Whites have fearful reactions to a Black man encountered on streets, in public transport, and in 

elevators” (Feagin, 2010, p.108). There are also many negative perceptions about the character and behaviors of 

Black men, such as Whites' perceptions that Black men as more violent, unpleasant, promiscuous, unintelligent, and 

less ambitious and nurturing (McConnaughy and White, 2008).

119 Anthony G. Greenwald, Mark A.Oakes, Hunter G.Hoffman (2003) “Targets of discrimination: Effects of Race on 

Responses to Weapons Holders”, Journal of Experimental Social Psychology Volume 39, Issue 4, July 2003, Pages 

399-405.

120 See page 64. 
Commissioners’ Statements 25

Or as Ronald Sullivan said before the United States Senate:

Mr. Zimmerman’s acquittal was made possible because Florida’s ‘‘stand your 

ground’’ laws and its concealed weapons laws conspired to create the perfect 

background conditions for his exoneration. These laws permitted Mr. Zimmerman 

to carry a loaded firearm, to disregard the clear directive of a 911 dispatcher, to 

follow and pursue Trayvon, and then stand his ground when young Trayvon 

reasonably sought to defend himself—and all because, I strongly suspect, that Mr. 

Zimmerman could not apprehend any lawful reason for a young black male to be 

walking through his middle-class neighborhood. To Mr. Zimmerman, Martin’s 

blackness likely served as a crude proxy for criminality.121

Thus, while it may be difficult to impute overt racist intent in Stand Your Ground laws, or 

deliberate racism in its application and implementation, there is a voluminous amount of research 

documenting implicit bias and its impact on criminal justice. Stand Your Ground is not free of 

such bias; indeed, it is the proverbial Wednesday’s child, full of woe, a sad example of how bias 

is embedded and enshrined in law to the detriment of our African American community.

VI. DATA COLLECTION CHALLENGES

A. The SHR lacks adequate data to track critical SYG impact on protected classes

1. The SHR itself is not complete

As noted before, Florida does not even participate in the report. Nor do all states or their 

municipalities participate fully, or only intermittently.122 Moreover, the data is reliant on selfverification – so researchers have to rely on the data, even if the locality providing it did not check, 

confirm, or verify whether it was correct.123 Even more chilling, it is likely that many justifiable 

homicides are severely underreported.124 

In addition, the methodology does not allow for separation of white and Hispanic in reporting.125

2. The lack of charging/non-charging data is important.

121 Ronald Sullivan, (2013) “Stand Your Ground Laws: Civil Rights and Public Safety Implications of the Expanded 

Use of Deadly Force,” October 29, 2013. Testimony before the Committee of the Judiciary, Subcommittee on the 

Constitution, Civil Rights, and Human Rights of the United States Senate, Serial No. J–113–35, p. 13.

122 SYG Briefing, Testimony of William Krouse, Vol 2, p. 14.

123 SYG Briefing, Testimony of John Roman, Vol. 2, p. 22.

124 Testimony of William Krouse, supra, at p. 53.

125 Testimony of John Roman, supra, at p. 23
26 Race Effects of Stand Your Ground Laws

Also noted before, the SHR data is based on information from the criminal justice system. If a 

person does not even enter the system – is not charged – that is not available. One of the challenges 

this investigation faced was the task of examining “charging sheets” where decisions are recorded 

as to the disposition of an arrested person. Perhaps now, with the advent of social media and the 

camera phone, it is more difficult today than at any other time in history for a shooting not to 

receive the type of scrutiny that would allow someone to escape any examination of their alleged 

actions in a SYG situation. But that doesn’t take the place of requiring data as part of submissions 

to the FBI, much less requiring submission to the FBI, which Florida resolutely does not do.

One of the most important aspects of Florida-style SYG laws is that there is discretion at the 

charging official, i.e., the police, to simply let someone go – even if they committed homicide –

because they assert a prima facie case of Stand Your Ground. Both George Zimmerman and 

Michael Drejka were summarily released because the police determined that they had both asserted 

adequate SYG defenses to their actions. Only after considerable social and media attention were 

both men eventually arrested for their actions. Under any reporting regime, there is no obligation 

to report non-charging decisions, regardless of the underlying action. In the absence of any social 

media or press media attention, how many other decisions to release, rather than charge, go 

unnoticed, unreported, unknown. How many other young men not named Trayvon Martin, Jordan 

Davis, or Markeis McGlocktons never have the chance to have their killers go to trial? 

VII. PROPOSED RECOMMENDATIONS

It is thus, after this examination that we come to the end and ask: what next?

There are certain steps, recognizing the reality that gerrymandering, lobbying, and campaign 

contributions have on putting a thumb on the scales of justice, that Congress or state legislatures 

can do to ameliorate some of the obvious negative impacts that Stand Your Grounds laws have 

wrought upon our communities.

First, remove the immunity clauses from Stand Your Ground laws. Immunity clauses remove 

incentives to mitigate or reduce the use of deadly force by protecting the claimant regardless of 

the collateral consequences. It means that innocent bystanders, families, children, have no 

recourse to someone spraying an area with bullets. It also removes the confusion and concerns 

about liability from local law enforcement in investigating all the circumstances of any so-called 

self-defense claim rooted in Stand Your Ground, so we don’t have situations – like we have seen 

in Sanford and Pinellas – where law enforcement simply throws up its hands and says, in effect, 

“I can’t do it” out of concerns of the civil liability a municipality may incur.

Second, all states should modify their concealed-carry statutes to include proper education and 

training in how self-defense laws actually work, including conflict avoidance. Stand Your Ground, 
Commissioners’ Statements 27

at its most positive interpretation, is meant to protect your life and loved ones from imminent death 

or severe injury. It is not an excuse to pick a bar fight and know, in the end, you can shoot your 

opponent if you are coming out on the losing end. 

Indeed, as a corollary issue to this, I find very puzzling that most self-defense statutes – including 

Florida’s Stand Your Ground law – do NOT allow deadly force or the threat of deadly force when 

only faced with “unlawful force.”126 What is unlawful force, and how does one distinguish that 

from a “forcible felony”? Proper gun education and some legislative and judicial guidance would 

be helpful in reducing the possibility of the unfortunate circumstances that have claimed so many 

lives.

Third, Congress should require that all states comply with the Supplementary Homicide Reporting 

Database, and include additional categories on race and ethnicity on the statistics on justified 

homicides. Further justified homicide reporting should also include demographic information on 

the disposition of cases that did not “enter” the criminal justice system, but where charges were 

never brought or dismissed early on. Ensuring that weapon factors, like use of a gun, will also 

help shed light and enable researchers to quantify and qualitatively measure the impact of justified 

homicides on protected classes such as the African American community.

Fourth, if any state is considering implementing a Stand Your Ground-type law (and the NRA 

continues to push for these, regardless of the negative attention and regardless of the terrible cases 

that continue to make headlines127), I am in favor of the suggestion of Katheryn Russell-Brown of 

requiring a racial impact statement128 to be prepared. Focusing on the themes discussed in this 

Statement – impact on overall homicide rates, law enforcement decision-making, and most 

importantly of all, racial disparities in its application and the problems of implicit bias, would be 

essential.

Fifth, if any state is considering implementing a Stand Your Ground-type law, the legislation 

should be clear that an objective “reasonable person” rather than a subjective “reasonably believes” 

126 FL. Statutes 776.012(1).

127 The NRA continues to advance legislation today in Louisiana (see https://www.bossiernow.com/la-house-votesto-boost-gun-possession-and-stand-your-ground-laws/) and Maine (see

https://www.nraila.org/articles/20190506/maine-gun-bills-head-to-criminal-justice-and-public-safety-committee), 

and will probably try again in Ohio after having legislation die in late 2018 (see

https://www.wcpo.com/news/state/state-ohio/ohio-senate-passes-new-gun-rights-law-minus-controversial-standyour-ground-provision).

128 Impact statements began being used by legislatures to evaluate potential fiscal and environmental consequences 

of proposed legislation prior to adoption and implementation. Racial impact statements have been adopted in 

several states to address racial disparities in sentencing and parole. See Mark Mauer (2009) Racial Impact 

Statements Changing Policies to Address Disparities, Criminal Justice, Volume 23, Number 4, Winter 2009.
28 Race Effects of Stand Your Ground Laws

standard should be used. Law enforcement has made it very clear that the subjective standard 

leads to bizarre and often bewildering results since they are forced to accommodate the particular 

viewpoint of the claimant of an SYG defense, rather than objectively reviewing the facts to see if 

the actions taken were reasonable. Such a standard may have made someone like George 

Zimmerman think twice before continuing his pursuit of Trayvon Martin after law enforcement 

asked him to withdraw.129

Sixth, and a corollary to the fifth point, is that any Stand Your Ground statute should remove the 

provision that prohibits law enforcement from arresting anyone asserting a Stand Your Ground 

defense unless they determine there is probable cause that the act was unlawful. Prosecutorial and 

law enforcement discretion already exists, and this clause is another source of confusion and, when 

combined with the civil liability clause, becomes another inhibitor on law enforcement 

investigating an incident.

Seventh, and last – of this section – it goes without saying, but it shall be said anyway, that all 

parties to the criminal justice system should undergo training to recognize and remove racial bias. 

It is simply unacceptable that it still remains a fact that the life – or death -- of young black person 

appears to be worth less than the life of a white person in the eyes of the law. 

These are recommendations that are rooted in the reality of our time. But they are, at best, bandaids on a gaping wound that cuts to the core of who we are as a country.

If we are to be honest, to be true to the better angels of our nature, to truly strive to be the more 

perfect union, we would repeal all Stand Your Ground laws. We would state that the common law 

and its development has in American jurisprudence130 has always recognized a right of necessity 

of self-defense in exigent and emergent circumstances. That the duty to safely retreat has and 

always been a prudent rule of self-preservation. That no one will question a person’s right to 

protect their home or, outside the home, their family and loved ones from an imminent threat. That 

had been the law for over two hundred years, and it is the law now.

Instead, Stand Your Ground has made our lives less safe. It made lives worth less, especially if 

you are a young black person. It has contributed nothing but pain and misery, including to those 

who have invoked it to justify the death of another. By removing the duty to safely retreat, it has 

converted every confrontation to potential shootout—or execution. And for the African American 

129 An ironic, and tragic, point often made about the circumstances of the struggle between Trayvon Martin and 

Zimmerman is that Trayvon had a lawful right to be in the neighborhood and a lawful right to defend himself from 

the obvious stalking engaged in by Zimmerman. In other words, Trayvon – not Zimmerman – was the real legal 

claimant of any Stand Your Ground defense. See, e.g., Miller Francis (2013) “What about Martin's right to ‘stand 

his ground’”? CNN, July 12, 2013, at https://www.cnn.com/2013/07/11/opinion/francis-zimmermantrial/index.html.

130 See, e.g., Beard v. U.S., 158 U.S. 550, 564 (1895).
Commissioners’ Statements 29

community, the disproportionate weight of tragedy and fear would be, however slightly, be lifted 

from their shoulders.

And if we are to truly honor Trayvon, and Jordan, and countless others of ever color and creed and 

orientation, we would enact sweeping, comprehensive, and strong gun control. Stand Your 

Ground and concealed carry are the societal equivalent of matches and gasoline, but the lack of 

any semblance of reasonable gun control is like constructing that society from dried tinder. 

Congress makes brave noises about closing gun-show loopholes or bump stocks or noise 

suppressors. But universal background checks and licensing requirements, elimination of assaultstyle rifles, large capacity magazines – these and more are what is needed. Ask Gabby Giffords. 

Ask the parents of Newtown, the young men and women of Parkland, the survivors of Columbine 

and Aurora and Las Vegas and Orlando and too many cities and towns to mention. The solution 

to guns is not more guns. This is not Tombstone, or Dodge City, not any more. 

Making guns less available turns February 26th into a brawl, makes November 23rd a loud and 

angry dispute. But everyone walks away.

Making guns less available and more rare, and its impact on crime and safety and, yes, on the civil 

rights of individuals in our country is a debate I would welcome. 
30 Race Effects of Stand Your Ground Laws

Statement of Commissioner Gail Heriot

This report should not have been published in this form. When the results of an empirical study

don’t come out the way Commission members hoped and expected that they would, the right thing

to do is usually to publish those results anyway. Why hide useful information?1

Instead, the Commission sat on the report for years. Then it decided to discard the draft written by

our staff and publish instead a transcript of the witness testimony received at our briefing that took

place on October 17, 2014 in Orlando, Florida (along with Commissioner Statements like this

one). In that way, the staff’s empirical findings could be buried forever.

No one would claim that the results of the staff’s empirical study conclusively resolve all the

controversy over “Stand Your Ground” laws or even over Florida’s “Stand Your Ground” law in

particular. But they are useful for what they don’t show. The most passionate opponents of “Stand

Your Ground” laws appear to have believed that the empirical evidence would show clearly that

African Americans are harmed by these laws. But it turns out things are not so clear; the evidence

of discrimination against African Americans or even real disparate impact is absent. Yes, it is true

that a disproportionate number of those killed in Florida in cases in which, correctly or incorrectly,

the “Stand Your Ground” law has been invoked were African American. But it is also true that a

similarly disproportionate number of those for whom that law has been invoked were African

American.2 African Americans are disproportionately on both sides of the issue.

1 This is not the first time in recent years that the U.S. Commission on Civil Rights has conducted an empirical 

study, only to downplay its results. In Environmental Justice: Examining the Environmental Protection Agency’s 

Compliance and Enforcement of Title VI and Executive Order 12,898 (2016), the Commission apparently hoped to 

prove that coal ash dumps were more likely to be located near neighborhoods with disproportionate numbers of 

African Americans. But the data came back showing the opposite. Although the Commission had originally 

intended this study to be a centerpiece of the report, instead it was barely mentioned. See Dissenting Statement of 

Commissioner Gail Heriot in U.S. Commission on Civil Rights, Environmental Protection Agency’s Compliance 

and Enforcement of Title VI and Executive Order 12,898 (2016), available at 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2897775. 

Another example is the Commission’s 2015 civil rights enforcement report, With Liberty and Justice for All: The 

State of Civil Rights at Immigration Detention Facilities (2015). For that project, a delegation from the Commission 

toured two immigration detention centers. Yet barely any information about that visit made it into the staffgenerated section of the report. As I described at some length in my Statement in that report (pp. 198-210), our visit 

suggested that these particular centers appeared to be generally well-maintained and that detainees appeared to be 

treated appropriately at the time. See Statement of Commissioner Gail Heriot in U.S. Commission on Civil Rights, 

With Liberty and Justice for All: The State of Civil Rights at Immigration Detention Facilities (2015), available at 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2897732. 

2 Statement of John Lott, Draft Report at 76 (stating that 34% of those for whom the law was invoked were African 

American).
Commissioners’ Statements 31

The Commission embarked on this project in May 2013, at a time when public interest and public

passions about “Stand Your Ground” laws were running high.3 The immediate trigger of that

interest was the Trayvon Martin case4—although, oddly enough, that case was not really a “Stand

Your Ground Case.”5

3 See, e.g., Gary Yonge, Open Season on Black Boys After a Verdict Like This: Calls for Calm After George

Zimmerman Was Acquitted of Murdering Trayvon Martin are Empty Words for Black Families, The Guardian (July

14, 2013), available at https://www.theguardian.com/commentisfree/2013/jul/14/open-season-black-boys-verdict.

One way in which these laws have been impugned is to associate them with the National Rifle Association. See E.J.

Dionne, Jr., Why the NRA Pushes “Stand Your Ground,” Washington Post (April 15, 2012)(claiming that such laws

exists because state legislators were afraid to oppose the NRA) available at

https://www.washingtonpost.com/opinions/why-the-nra-pushes-stand-yourground/2012/04/15/gIQAL458JT_story.html?utm_term=.c25da969e2df; Carl Hiaasen, Welcome to Florida, Where

the NRA Rules, and We Proudly Stand Our Ground, Miami Herald BLOG (February 22, 2014, 7:00 pm)(arguing

that Florida’s “Stand Your Ground” law will likely never be repealed, since the NRA “owns too many Republican

lawmakers”), available at https://www.miamiherald.com/opinion/opn-columns-blogs/carlhiaasen/article1960643.html; Andy Kroll, The Money Trail Behind Florida’s Notorious Gun Law, Mother Jones

(March 29, 2012)(“the money trail leading to the watershed law in Florida—the first of 24 across the nation—traces

primarily to one source: the National Rifle Association”), available at

https://www.motherjones.com/politics/2012/03/nra-stand-your-ground-trayvon-martin/. For more examples, see

Cynthia Ward, “Stand Your Ground” and Self Defense, 42 Am. J. Crim. L. 89, 96 n.19 (2015).

4 Commissioner Michael Yaki, who proposed the project, said that he wanted to take up the issue in part because of 

the Trayvon Martin case. U.S. Commission on Civil Rights, Transcript of May 31, 2013 Business Meeting at 6. 

Commissioner Yaki also discusses the Trayvon Martin case several times in his Commissioner’s statement.

5 See infra at 54-55. See also, e.g., Scott Lemieux, The Zimmerman Acquittal Isn’t About Stand Your Ground, The 

American Prospect, July 14, 2013, available at http://prospect.org/article/zimmerman-acquittal-isnt-about-stand-yourground (wherein the progressive-leaning political science professor author notes that “Zimmerman’s defense involved 

just standard self-defense,” while nonetheless claiming that the case highlights serious racial issues); Jacob Sullum, 

The New York Times Admits That Its Reporting on the Trayvon Martin Case Has Been Fundamentally Wrong, 

reason.com June 20, 2013, available at http://reason.com/blog/2013/06/20/the-new-york-times-admits-its-reporting: 

“Zimmerman's defense does not hinge on the right to stand your ground when you are attacked in a public place 

because he claims he shot Trayvon Martin during a violent struggle in which there was no opportunity to retreat.” 

Commissioner Yaki also discusses at some length the Jordan Davis case as a supposed illustration of the problems 

with “Stand Your Ground” laws. But this also is a case that ultimately did not turn on the existence of such a law. 

Instead, it illustrates the point I have tried to make infra at 52-55 that “Stand Your Ground” laws do not authorize an 

individual to use force simply because “he feels threatened.” 

The day after Thanksgiving, Davis and three of his friends pulled up to a convenience store. Michael Dunn and his 

girlfriend parked in the adjacent space, and Dunn began complaining about the music coming from Davis’s car. An 

argument erupted between Dunn and Davis and his friends. Dunn, who had a concealed weapons permit, reached for 

his gun from his glove compartment and began shooting into the other car, and continued shooting into the other car 

until it drove away. Davis was killed. Dunn drove away with his girlfriend and did not report the matter to the police.

At trial, Dunn claimed that he had acted in self-defense because he thought he saw Davis armed with a gun. But the 

police found no gun in Davis’s car or near the scene, and Dunn also never told his girlfriend at the time of the incident 

about the gun. See Kristal Brent Zook, The Lessons of Jordan Davis’s Murder, Revisited, The Nation November 13, 

2015, available at https://www.thenation.com/article/the-lessons-of-jordan-daviss-murder-revisited/. 

The jury convicted Dunn of first-degree murder. He won’t be out on the streets anytime soon. We cannot know for 

sure what the jury’s reasons were. But it seems overwhelmingly likely that they thought either (1) he was lying about 

believing that he saw a gun; or (2) if he believed he saw a gun, he was being unreasonable in doing so. In the unlikely 

event that it had come to the opposite conclusions on those issues, Florida’s Stand Your Ground law could have come 

into play in the sense that it would obviate the need for the jury to resolve whether Dunn could have safely withdrawn. 
32 Race Effects of Stand Your Ground Laws

The concept paper proposing the project defined “Stand Your Ground” laws for the purposes of 

the project as “any state statutory enactment in the past decade that extends the common law right 

to use deadly force, without a duty to retreat, beyond an individual’s home.” See, e.g., Fla. Stat. § 

776.041 (2014) (attached hereto as Exhibit A).

Much of the passion over “Stand Your Ground” laws was misplaced—a product of an imperfect

understanding of their content and their impact. And that passion and its accompanying

misunderstanding have not entirely subsided.6 Florida gubernatorial candidate Andrew Gillum

commented in 2018, with more dramatic flair than was warranted by the actual facts, that “you

can’t have a conversation about Stand Your Ground without understanding what the racial

elements are” and “[Florida’s “Stand Your Ground” law] is dangerous, which is why I ask the

Governor to declare a state of emergency, because in the State of Florida, as long as that law exists,

the state is not safe for all kids, it’s not safe for all people.”7

Alas, the Commission has not been immune to that misplaced passion. When the controversy first

arose, it made a hasty decision to undertake a study of the racial effects of those laws.8 At the time

But it is unlikely that even in that event Florida’s “Stand Your Ground” law would have affected the outcome. If the 

jury had found that Davis was indeed threatening Dunn with a gun, they probably would have also found that Dunn 

could not have safely backed up his car and left the parking lot (thus leaving his girlfriend, who was in the convenience 

store when the fight erupted).

6 Editorial: “Stand Your Ground” Doesn’t Stand Common Sense Test, York Dispatch (October 24, 2018), available 

at https://www.yorkdispatch.com/story/opinion/editorials/2018/10/24/editorial-stand-your-ground-doesnt-standcommon-sense-test/1737906002/. 

7 Ashley Velez, The Root Video: Andrew Gillum Says Florida Is Not Safe for All While “Stand Your Ground” Law 

Exists, (November 2, 2018)(emphasis added), available at https://www.theroot.com/andrew-gillum-says-florida-isnot-safe-for-all-while-st-1830188947.

8 The project was proposed by Commissioner Michael Yaki. At the time, he said that he thought that alreadyexisting data on the application of “Stand Your Ground” laws indicated a racially biased effect against African 

Americans. He stated:

By racial bias, I'm talking about the fact that just on some statistics out there alone there are

questions about whether or not if you are a - if you are a black victim, in other words, the person

who was shot by someone asserting the SYG, that there seems to be a disproportionate number of

those victims are African-American or are a minority versus homicide victims generally for that.

I know there's some people talking about crime rate, this, that when you're just looking at the 

homicide rate alone. But when you cut it out for this type of homicide and this type of defense, the 

number of people who happen to be of minority background seems to be a little bit higher.

U.S. Commission on Civil Rights, Transcript of May 31, 2013 Business Meeting at 7.
Commissioners’ Statements 33

I warned the members of the Commission who favored such a study that “Stand Your Ground”

laws effect only a fairly minor change to the law in the states that have adopted them and that

enough data to draw firm conclusions will be lacking.9 There are about 15,000 homicides each

Commissioner Yaki later told MSNBC News that “All of the data shows it [Stand Your Ground] makes people kill

people more often, and it makes black people die more often.” Zachary Roth, Is Stand Your Ground Racially Biased?: 

George Zimmerman vs. Marissa Alexander, MSNBC News (July 23, 2013), available at

http://www.msnbc.com/msnbc/stand-your-ground-racially-biased-george. The project won Commissioner Yaki

accolades in the national media. See, e.g., Emma Allen, Customer Relations, The New Yorker, November 11, 2013,

available at https://www.newyorker.com/magazine/2013/11/11/customer-relations (generally favorable profile of

Commissioner Yaki, mainly focused on his job as a consultant for the department store Barneys, that also mentions

his work on Stand Your Ground at the Commission); Editorial, When “Self-Defense” Violates Civil Rights, N.Y.

Times (June 19, 2012)(“ Michael Yaki, a member of the civil rights commission, has properly asked that the cases

involving Stand Your Ground laws be analyzed to see if there is racial bias in accepting a claim of justifiable

homicide when the victim is a minority”), available at https://www.nytimes.com/2012/06/20/opinion/when-selfdefense-violates-civil-rights.html. Like Commissioner Yaki, the media appear to have expected our study to come

out a particular way. The New York Times wrote that “There can be no justifying the public mayhem legalized by

Stand Your Ground. These laws should be repealed, and the [Commission’s] civil rights inquiry should help make

that point.” Id.

When the Commission held a briefing on the topic, even though we hadn’t yet crunched any data, a number of

witnesses confidently asserted to the Commission that Stand Your Ground laws had an unfair effect on racial and

ethnic minorities. See, e.g., Statement of Ahmad Nabil Abuznaid, Dream Defenders at 1 (“These SYG laws have, in

a sense, legalized the devaluing and dehumanizing of minority lives in a very real way... Since we understand that

the system itself has had to be constantly revised to deal with its inadequacies related to minorities, it should come

as no shock that a law allowing vigilantes to use fatal force on the streets would disproportionately affect

minorities.”).

Nor is Commissioner Yaki’s Draft Commissioner Statement’s free of that misplaced passion. In it, he calls “Stand

Your Ground” laws “the legal equivalent of carte blanche for the exerciser of a Stand Your Ground right” and

quotes the Brady Center to Prevent Gun Violence calling Stand Your Ground a “Shoot First” law. He also writes

that “And if we are to truly honor Trayvon, and Jordan, and countless others of ever[y] color and creed and

orientation, we would enact sweeping, comprehensive, and strong gun control. Stand Your Ground and concealed

carry are the societal equivalent of matches and gasoline, but the lack of any semblance or reasonable gun control is

like constructing that society from dried tinder.”

Gun control laws are far beyond the scope of this report, so I will refrain from commenting to them except to say

that when guns allow an innocent person to protect himself against an individual who is slamming his head against

concrete, that would seem to me to be one of the best arguments in favor of guns. The odd thing here is that the

Trayvon Martin case is one in which the only gun involved (Zimmerman’s) was used in what the jury clearly found

was legitimate (and traditional as opposed to Stand Your Ground) self defense. Strict gun control laws would not

have made things better in the case. There is every reason to believe that they would have led to Zimmerman’s

death. 

9 My remarks at the meeting at which we officially accepted Commissioner Yaki’s concept paper included the

following:

Okay. I believe that what's being proposed here is much, much too complicated for our commission

to be able to undertake. This is a big issue, plus there's not much in the way of data.

We're talking about with regard to some of these states, you know, with South Carolina

we've got almost 700 homicides, but only a very small number of those will have had any kind of

a self-defense issue.
34 Race Effects of Stand Your Ground Laws

year in the United States. That may be a tragically high number by the standards of the developed

world, but it is not a lot by the standards needed to draw statistical conclusions from the data. 

According to the FBI statistics, less than 3% (i.e. less than 450) are deemed to have been justifiable

self-defense.10 Of those, a similarly tiny, but undetermined proportion turn on whether a state has

a “Stand Your Ground” law or not.11 Add to that the problems that every murder has unique facts,

accessing those unique facts from FBI statistics or even police reports is difficult, state “Stand

Your Ground” laws differ from one another, and the states that have adopted “Stand Your Ground”

laws differ culturally and demographically from those that have not. One must also add that it is

impossible to estimate the number of occasions when “Stand Your Ground” laws have allowed an

And the number that would have a self-defense issue that turns on the difference between

Stand Your Ground and ordinary common law on self-defense, that's going to get down to like

Bob and Suzy ... a couple of homicides in each state.

U.S. Commission on Civil Rights, Transcript of May 31, 2013 Business Meeting at 18-19.

10 Even if that is a serious undercount, it is never going to be the case that a substantial proportion of the 15,000 or 

so homicides each year are cases of legally justifiable self-defense.

11

 Some of those justifiable homicides occur in the course of a burglary (and hence, ordinarily in the defendant’s 

home and subject to the Castle doctrine). Even limiting myself to news stories running in 2018, it was not hard to 

uncover such cases. I think it is safe to state that the number of burglary/home invasion justifiable homicide cases is 

not insignificant. Homeowners Tell 11 News They Shot Intruder in Self-Defense, KKTV.com (October 10, 2018), 

available at https://www.kktv.com/content/news/Shooting-Investigation-in-Colorado-Springs-495374221.html; 

Richmond Homeowner Shoots Intruder in Self-Defense: Police, NBCbayarea.com (July 6, 2018), available at 

https://www.nbcbayarea.com/news/local/Richmond-Homeowner-Shoots-Intruder-in-Self-Defense-Police487512971.html; Thomas, Leavy, Memphis Homeowner Grabs His AK-47, Kills Two Burglars, CBSnews.com 

(June 4, 2018), available at https://www.cbsnews.com/news/memphis-homeowner-kills-two-burglars-with-ak-47/; 

Thomas Plank, Helena Man Who Fatally Shot Burglar Defends Gun Rights at Young Republicans Event, 

Helenair.com (May 9, 2018), available at https://helenair.com/news/local/helena-man-who-fatally-shot-burglardefends-gun-rights-at/article_9b429d41-b70e-5843-a137-df0b93988b13.html. 

According to FBI statistics, in 2017, 90 persons were murdered in the course of a burglary (not including justifiable 

homicides). Presumably, then, all or nearly all of these were cases of the burglar murdering an innocent person. It 

is understandable why homeowners are thought to be reasonable for believing themselves to be in danger.

Many other cases occurred in the home, but not in the course of a burglary. Police: Grandfather Fatally Shoots 

Grandson in Self Defense, The Columbian (November 13, 2018) available at 

https://www.columbian.com/news/2018/nov/13/police-grandfather-fatally-shoots-grandson-in-self-defense/; Ken 

Curtis, Dothan Police Believe Deadly Shooting Self-Defense, WTVY.com (November 9, 2018), available at 

https://www.wtvy.com/content/news/Dothan-police-deadly-shooting-self-defense--500162481.html; Lynn Moore, 

Sister’s Fatal Stabbing of Brother Rules Justified Self Defense, Muskegon News (November 7, 2018), available at 

https://www.mlive.com/news/muskegon/index.ssf/2018/11/sisters_fatal_stabbing_of_brot.html. 

In addition, there are cases that occur outside the home, but for which it is obvious retreat would have been 

impossible. See Jon Wilcox, Prosecutor: 13 Bullet Holes Showed Self-Defense for Man Cleared of Murder 

Charge, The Victoria Advocate (October 22, 2018), available at 

https://www.victoriaadvocate.com/counties/dewitt/prosecutor-bullet-holes-showed-self-defense-for-man-clearedof/article_def55934-d637-11e8-9546-637075a1ed02.html. 
Commissioners’ Statements 35

individual to threaten self-defense in a way that prevented further violence. That is simply not a

lot to work with, especially if one’s task is to tease out the law’s racial effects.12

As a result, it was always highly unlikely that we could obtain the necessary data to decide

whether these laws had a racial effect or not, which is the issue we arguably have jurisdiction

over.13 It was not that I was against undertaking challenging empirical studies. Like

Commissioner Yaki, I believe that the Commission should focus more of its energies on its own

empirical studies and less on simply giving its opinion on policy issues. But I feared this

particular exercise would not generate enough useful information to be worth the effort.

Our staff undertook the study and did the best that could be done with the data available. I have

no reason to doubt either the competence or the integrity of the statistician in our Office of Civil

Rights Evaluation (“OCRE”) who undertook the analysis.14 On the other hand, OCRE was not

able to find data allowing it to make a comparison between jurisdictions with “Stand Your

Ground” laws and those without them or between a jurisdiction before it adopted a “Stand Your

Ground” law and after it did so. Thus even if a mammoth multi-factored analysis was desirable

to determine whether “Stand Your Ground” laws disproportionately increase the number of

homicides of African Americans, OCRE was in no position to conduct that analysis.

12 Of course, economists sometimes rush in where angels fear to tread. Two complex empirical studies have now 

been done on the effects of “Stand Your Ground” laws. Commissioner Yaki relies significantly on them to mount 

his critique, yet each has significant limitations that I discuss infra at p. 48, n. 50. For example, one of these 

studies—Chandler McClellan & Erdal Tekin, Stand Your Ground Laws and Homicides, 52 J. Human Resources 621 

(2017)—suggests that states that have passed “Stand Your Ground” statutes that allow individuals to stand their 

ground if they are in a place they are legally entitled to be had an increase in total homicides per 100,000 in 

population in the 17 months following the laws’ passage relative to other states for whites, but not for African 

Americans. (Indeed, for African Americans, the rate of total homicides was found to decrease slightly, but not 

significantly). Paradoxically, more limited “Stand Your Ground” statutes—such as those that extend the right to 

stand one’s ground only to one’s business or car—were associated with a decrease in the rate of total homicides 

(relative to states with no such changes in the law). Given these odd results, it is very hard to come away with the 

conclusion that the associations noted by the authors are causal in nature.

The other such study did not deal with racial effects at all. See Cheng Cheng & Mark Hoekstra, Does Strengthening 

Self-Defense Law Deter Crime or Escalate Violence?: Evidence for Castle Doctrine, 48 J. Human Resources 821 

(2013). But given that it finds that laws of this kind increase homicide rates, it does itself rule out the possibility (as 

McClellan & Tekin purport to) that “Stand Your Ground” laws increase the number of African-American 

homicides. See infra at n. 50.

13 Here is another way to give readers an idea of how small the pool of relevant cases is: In a study for PBS’s

Frontline, John Roman of the Urban Institute’s Justice Policy Center looked at SYG racial disparities using FBI

homicide data from 2005 to 2009. Out of 45,300 incidents of homicide from all 50 states in the database, there were

only 25 white-on-black justifiable homicides during the period of Roman’s study. See Sarah Childress, Is There

Racial Bias in “Stand Your Ground” Laws? Frontline, July 31, 2012, available at

https://www.pbs.org/wgbh/frontline/article/is-there-racial-bias-in-stand-your-ground-laws/.

14 That individual head holds a Ph.D. in sociology from Howard University. Before coming to the Commission, he 

was a Senior Statistician at the Criminal Justice Coordinating Council for the District of Columbia. 
36 Race Effects of Stand Your Ground Laws

Instead, the staff had a database, put together initially by the Tampa Bay Times, consisting of

192 Florida cases. The original list was supplemented by a list of cases compiled by the

researcher Albert McCormick for his paper on Florida’s “Stand Your Ground” law.15 In the end,

there were 305 cases in total. OCRE focused on whether success in invoking “Stand Your

Ground” laws varies by the race of the parties.

Alas, these cases are not what they appear. They are not cases for which Florida’s “Stand Your

Ground” law made a difference in the outcome. Rather some are cases for which Florida’s law

might have made a difference depending upon whether it was ultimately determined that the

shooter could have safely avoided the need for self-defense by retreating. (Of course, the point

of “Stand Your Ground” laws is that they take that issue out of consideration.)16 

Others cases in the database involved situations in which the defendant or the defendant’s lawyer

invoked “Stand Your Ground” law, but the facts did not fit “Stand Your Ground” (though in

some cases, real issues of self-defense may have fit the facts). In some cases, the term “Stand

Your Ground” was simply mentioned by somebody quoted in a news story account of the case. 

Sometimes that person had no idea what he or she was talking about.

Moreover, the cases were a hodgepodge. No two contained facts that were alike. For example:

(1) Seventy-year-old Ralph Wald woke up at midnight to find a younger 

man having sexual intercourse with his 41-year-old wife in the living 

room. According to Wald, he believed his wife was being raped. He 

went to his bedroom, got his gun and shot the man in the head and 

stomach. It turned out to be one Walter Conley, with whom Wald’s 

wife had once lived in a house next door to Wald’s. Police believed 

instead that Wald shot Conley in a fit of rage. Whatever this case is, it 

does not turn on the application of Florida’s “Stand Your Ground Law.” 

While the defense cited that law, under the pre-existing Castle Doctrine, 

Wald had no duty to retreat in his own home anyway. Moreover, this 

was a case of defending a third party. He could not have successfully 

defended his wife (assuming she needed defending) by retreating. The 

case turns on a question of fact: Wald either reasonably believed that 

he was defending his wife from a rapist or he did not. Wald was charged 

15 McCormick, Albert E. Jr., The Enforcement of Florida's "Stand Your Ground" Law: Preliminary Findings, 6 J.

OF PUB.& PROF. SOCIO. 1 (2014), available at 

https://digitalcommons.kennesaw.edu/cgi/viewcontent.cgi?article=1072&context=jpps. 

16 That is an aspect of “Stand Your Ground” laws that must always be kept in mind. Under a “Stand Your Ground”

law, it is unnecessary to determine whether the individual claiming the right to self-defense could have retreated in

safety. It doesn’t matter if he has the right to stand his ground. By contrast, in a jurisdiction with a duty to retreat, it

becomes necessary, when an individual fails to retreat and instead acts in self-defense, to determine whether he

should have retreated instead. The upshot of this is that law enforcement investigators may classify a case as falling

under a “Stand Your Ground” law when they mean only that the individual did not retreat. 
Commissioners’ Statements 37

with second-degree murder. Rightly or wrongly, the jury acquitted him. 

Florida’s “Stand Your Ground Law’ had nothing to do with it.

(2) Andrew Smith and Keith Quakenbush got into an argument while in 

Smith’s car. Smith requested that Quackenbush get out of his car, but 

Quackenbush refused. Smith was able to remove him from the car and 

attempted to drive away, but Quakenbush re-entered it. Smith removed 

him again. At that point, Quakenbush jumped onto the car and a physical 

fight began. When Quakenbush cut Smith with a box cutter, Smith took 

out a knife and stabbed Quakenbush, but did not kill him. The police 

arrested Smith. There does not appear to have been an opportunity for 

Smith to retreat once the physical fight began. Indeed, the Tampa Bay 

Times database specifically notes that retreat was not an option. 

Florida’s “Stand Your Ground Law” is thus, again, superfluous.17

(3) Gregory Gayle had been staying with his pregnant sister and her fiancé,

Jakob Penrod, for three weeks when an argument turned violent. Penrod 

told Gayle to move out. Fearing Gayle, Penrod and Gayle’s sister 

locked themselves in the bathroom (with Penrod’s gun). When Gayle 

forced his way into the bathroom and struck Penrod, Penrod shot him. 

This was a routine self-defense case and not one that turned on Florida’s 

“Stand Your Ground” law. Penrod was in his own home and had no 

opportunity to retreat anyway. According to the Tampa Bay Times 

website, “Witnesses, including some of Gayle’s relatives, agreed with 

Penrod’s description of the events and he was not arrested.”18 The only 

connection to “Stand Your Ground” law that I am aware of was the fact 

that Gayle’s father told the local television station that the “Stand Your 

Ground Law” needs a second look.19 

These cases were not difficult to find. There are certainly many more in the database that did not 

turn on the existence of the “Stand Your Ground” law. Indeed, while I did not look at them all, I 

did not run across a single case that really turned on the existence of a “Stand Your Ground” law, 

although I assume that some do. 

Both the fact that every case has different facts and the fact that large numbers of cases in the

database are not true “Stand Your Ground” cases make drawing conclusions very difficult. Add

to that the database does not include cases where an individual who stood her ground was

17 Florida Stand Your Ground Cases (Tampa Bay Times) http://stand-your-ground-law.s3-website-us-east1.amazonaws.com/cases/case_262. 

18 Florida Stand Your Ground Cases (Tampa Bay Times) http://stand-your-ground-law.s3-website-us-east1.amazonaws.com/cases/case_269. 

19 Lisa McDonald, “Stand Your Ground” Put to Test in Leesburg Shooting, ClickOrlando.com (April 9, 2012) 

https://www.clickorlando.com/news/florida/lake-county/stand-your-ground-put-to-test-in-leesburg-shooting. 
38 Race Effects of Stand Your Ground Laws

successful in scaring off her assailant just by brandishing a weapon (rather than running away) or

cases where an individual retreated anyway, despite a legal right to stand his ground.20 

The first draft of the report found that none of the attributes of those who claim the Stand Your

Ground defense, including race/ethnicity, was significantly associated with the probability of a

successful claim.21 I would quote the draft and give the specific figures, but some of my fellow

Commissioners have taken the position that for the Commission to publish this Statement quoting

those figures might be interpreted to waive the Commission’s deliberative process privilege. To

address their concerns I have edited this statement. Suffice it to say that insofar as there was

evidence, it suggested that African Americans and Hispanics were more likely to successfully

assert the defense than whites, but the difference was not statistically significant.22 The report also

found that the probability of a successful Stand Your Ground claim was greater if the initial

attacker was Hispanic than if he or she was black or white. But the differences were insignificant

at the conventional 0.5 level.23 The draft ultimately concluded that there was no significant

difference in the probability that a Stand Your Ground claim would be successful based on the

race or ethnicity of the claimant or the race of the initial attacker.

But Commissioner Michael Yaki, who spearheaded the project, was unhappy with the results and

protested them. To the credit of our statistician in the Office of Civil Rights Evaluation, while he

listened to and considered Commissioner Yaki’s complaints, he stood his ground and declined to

alter his results to follow a particular narrative. 

20 In the absence of a “Stand Your Ground” law, brandishing a weapon in a case in which one has a duty to retreat 

would presumably be at least technically an assault. And yet, cases in which an otherwise innocent individual scares 

off an assailant by showing his weapon seems like a benefit of “Stand Your Ground” laws to me. Of course, the 

individual who shows his assailant his weapon in this way may put himself in a position where he must use it, since 

he has likely used up precious time that could have been used to retreat. 

21 Draft Report at v. Given the existence of ordinary self-defense and Castle Doctrine cases in the database, even if 

the data had shown bias, it would be unclear whether the bias came from the application of “Stand Your Ground” 

laws or the application of other self-defense doctrines. It is one thing to argue for the repeal of “Stand Your 

Ground” laws. Reasonable policymakers have taken both sides of that issue. It is quite another to argue for the 

repeal of the right of self-defense generally and hence for a “Duty to Die” rule for those who find themselves under 

attack. Alas, while it appears that racial bias may not be an issue in this particular context, racial bias has certainly 

been known to rear its ugly head in employment, real estate sales and credit. Yet no one argues that this is a 

sufficient reason to abolish employment, home ownership and credit. Nor would it be a good reason to eliminate the 

basic right to self-defense. 

22 Draft Report at 28.

23 The difference between blacks and Hispanics were significant at all levels. The difference between whites and 

Hispanics was statistically significant at the .10 level. 
Commissioners’ Statements 39

For a while, there was talk within the Commission about trying to re-do the project. 24 Eventually,

though, the staff who had originally been the most immersed in this project (our statistician from

OCRE, as well as Commissioner Yaki’s special assistant and counsel) left the Commission, and

the discussions stopped. A majority of the Commission’s members were apparently happy not to

issue a report. But lately, they seem to be taking the position that the quantity of reports that the

Commission issues is important. More than two years after we received the initial draft, the

Commission voted to scrap that draft altogether and instead publish the report in the form you see

today.

I believe that the findings that were contained in the draft are worth publishing, despite the fact

that they do not resolve every issue we might like them to have. They are at least a bit of a

counterweight to some of the more fevered commentary about the intent and effects of “Stand

Your Ground” laws. Take, for example, the following comments, all of which were aimed at

“Stand Your Ground” laws:

“There is a word for the unfounded, pre-emptive, due-process-free (but tacitly

sanctioned) form of killing perpetrated against black people in this country in an

effort to safeguard white property: lynching.” –Sabrina Strings, Assistant Professor

of Sociology, University of California at Irvine.25

“... SYG laws make it easier for straight, cisgender people to kill queer people, for

white people to kill people of color, and for men to kill women, while preventing

targeted minorities from defending themselves.” Caroline E. Light, Director of

24 In February 2016, there was supposed to be a meeting of the eight special assistants and the then-head of OCRE to 

address some of the concerns about the first draft and discuss a plan for moving forward with the report. The 

meeting was cancelled after the OCRE head was assigned to a different role within the Commission. It was never 

rescheduled. 

In his Commissioner’s statement, Commissioner Yaki writes that “Through no fault of the Commission and its staff, 

the lack of resources—both fiscal and personnel—hampered the ability of the Commission to engage in the type of 

fact-finding this matter deserved. Because of the way that data is recorded in Stand Your Ground shootings—or, 

more accurately, was not recorded, as will be discussed later—the intensive investigative resources that would have 

been required to be dedicated proved to be beyond the reach of the Commission.” As discussed above, I do not fault 

the Commission’s career staff for the staff-generated section of this report’s failure to come to fruition. But I do not 

think it is entirely accurate to suggest that the failure was mostly about a lack of resources. It was not. The 

Commission could have had three times its level of resources, and it still would have been without the data it needed 

to draw conclusions.

25 See Sabrina Strings, Protecting What’s White: A New Look at Stand Your Ground Laws, The Feminist Wire 

(2014), available at https://thefeministwire.com/2014/01/protecting-whats-white-a-new-look-at-stand-your-groundlaws/. 
40 Race Effects of Stand Your Ground Laws

Undergraduate Studies in the Program in Women, Gender, and Sexuality Studies,

Harvard University.26

“This [is] structural racism at its finest: a modern-day lynch law. ... The arming and

acquitting of racists is nothing new in our country, but [proposed Stand Your Ground

laws] are open invitations for racist violence.”—Mari Christmas, Visiting Fellow in

Creative Writing, Idaho State University.27

The Commission’s study certainly fails to substantiate these statements. Common sense is all

that’s needed to understand that they are unhelpful and overblown.

Of course, misunderstanding about the racial aspects of “Stand Your Ground” laws is only one of

several misunderstandings concerning these laws. There are others:

THE APPARENTLY WIDESPREAD NOTION THAT “STAND YOUR GROUND” LAWS

ARE A RECENT INNOVATION IS FALSE.

Many people are under the incorrect impression that “Stand Your Ground” laws are a recent

innovation and that they greatly expand the circumstances under which the right to self-defense

can be invoked. The truth, however, is that “Duty to Retreat” rules and “Stand Your Ground”

rules have existed side by side, at least as far back as 17th century England.28 It hasn’t always

been easy to tell which rule applies to which situations, but Anglo-American law has muddled

through nonetheless. It is true that American law may be leaning somewhat more than English

common law toward “Stand Your Ground” rules. But the differences are smaller than many seem

to think.

Former Attorney General Eric Holder is among those who seems to be under this misimpression

that “Stand Your Ground” laws are novel (beyond the fact that they are now statutory, whereas

before they were common law). In addressing the NAACP in 2013, he stated: “These laws try to

fix something that was never broken. ... [I]t’s time to question laws that senselessly expand the

concept of self-defense and sow dangerous conflict in our neighborhoods .... [W]e must examine

laws ... eliminate[e] the common-sense and age-old requirement that people who feel threatened

have a duty to retreat, outside their home, if they can do so safely. By allowing and perhaps

26 Caroline E. Light, Stand Your Ground: A History of America’s Love Affair with Lethal Self-Defense 184 (2017).

27 Mari Christmas, Stand Your Ground Is a Modern-Day, Racist Lynch Law, Idaho State Journal (March 11, 2018), 

available at https://www.idahostatejournal.com/opinion/columns/stand-your-ground-is-a-modern-day-racist-lynchlaw/article_d530e232-c638-5c00-a8d2-2cbb8bcee138.html. 

28 Cynthia Ward, “Stand Your Ground” and Self Defense, 42 Am. J. Crim. L. 89 (2015).
Commissioners’ Statements 41

encouraging violent situations to escalate in public, such laws undermine public safety.... [W]e

must ... take a hard look at laws that contribute to more violence than they prevent.”29

Those who believe that recent “Stand Your Ground” statutes overrule a long history of precedent

imposing a duty to retreat (outside the home) before a right of self-defense can be invoked

sometimes rely upon William Blackstone’s Commentaries on the Laws of England as their

authority. That treatise states, “[T]he law requires, that the person, who kills another in his own

defence, should have retreated as far as he conveniently or safely can, to avoid the violence of the

assault ....”30 I’m guessing that most of those who cite to Blackstone for this purpose do not own

their own copies of Blackstone. I do. Browsing his section on homicide, one finds that he is

speaking of a particular kind of homicide—that arising in the course of a “sudden brawl or

quarrel.” 

This is an important qualifier. Going back to Lord Edward Coke’s Institutes of the Lawes of

England, we learn that initial aggressors and mutual combatants had a duty to retreat before

invoking the right to use lethal force in self defense, but that no duty to retreat existed where the

an individual was simply defending his or her life or property.31 (Yes, I own my own copies of

29 Attorney General Eric Holder’s Remarks on Trayvon Martin at NAACP Convention (full text), Washington Post

(July 16, 2013), available at https://www.washingtonpost.com/politics/attorney-general-eric-holders-remarks-ontrayvon-martin-at-naacp-convention-full-text/2013/07/16/dec82f88-ee5a-11e2-a1f9-

ea873b7e0424_story.html?utm_term=.e69c760b26c4.

30 IV William Blackstone, Commentaries on the Laws of England 184-85 (University of Chicago facsimile ed.

1979).

31 Edward Coke, The Third Part of the Institutes of the Lawes of England 55-56 (1669). In it, he makes the 

distinction between mutual combatants and victims of an attempted serious crime. Here we learn that retreat, if it 

can be accomplished in reasonable safety is required for mutual combatants:

Some [homicides] be voluntary, and yet being done upon an inevitable cause are no felony. As if 

A, be assaulted by B, and they fight together, and before any mortall blow given A, [retreats], until 

he cometh unto a hedge, wall, or other strait, beyond which he cannot passé, and then in his own 

defence, and for safeguard of his own life killeth the other: this is voluntary, and yet no felony, 

and the jury that finde, it was done se defendendo, ought to finde the speciall matter. ... If A 

assault B so fiercely and violently, and in such place, and in such manner, as if B should [retreat], 

he should be in danger of his life, he may in this case defend himself; and if in that defence he 

killeth A, it is se defendendo ....

On the other hand, the victim of an attempted serious crime has no duty to retreat:

Some without any [retreat] to a wall, &c. or other inevitable cause. As if a thiefe offer to rob or 

murder B, either abroad, or is his house, and thereupon assault him, and B defend himself without 

any [retreat], and in is defence killeth the theif, this is no felony; for a man shall never give way to 

a thief, &c., neither shall he forfeit anything.

See also 1 Edward Hyde East, A Treatise on the Pleas of the Crown 220-21 (1803)(stating that there is no duty to 

retreat from someone who comes with the intent to commit a forcible felony against one’s person or property); 

Michael Foster, A Report of Some Proceedings 273 (Oxford, Clarendon Press 1762)(“[An] injured party may repel 

force with force in defense of his person, habitation, or property, against one who manifestly intends and endeavors 

with violence or surprise to commit a known felony upon either. In these case he is not obligated to retreat ....”); 
42 Race Effects of Stand Your Ground Laws

Coke’s Institutes too. I am a law nerd.) This is consistent with a different section of Blackstone’s

Commentaries in which he discusses “such homicide, as is committed for the prevention of any

forcible and atrocious crime” and makes no mention of a duty to retreat.32 In the modern world,

where dueling and just plain brawling is less common, this part of Blackstone’s and Coke’s

commentaries is more significant. Never lose sight of the fact that we live in gentler times than

most of our 17th and 18th century ancestors, no matter what part of the globe those ancestors came

from.

Professor Cynthia Ward attempts to summarize the dominant theme among these distinguished

legal commentators this way:

“Early English commentators distinguished between two fundamental scenarios: 

(1) cases in which the defendant’s use of deadly force was justified—for example,

where a blameless and law-abiding defendant used deadly force to repel an attack

from a thief or a burglar who intended to kill or gravely injure him, and (2) cases

in which the use of deadly force was merely excused—for example where the

defendant either bore some responsibility for the deadly encounter, or had

reasonably but incorrectly believed that he or she was faced with imminent threat

of death or serious injury and responded with deadly force. In the former type of

case, a defendant could claim self-defense although he or she had stood his or her

ground and did not retreat; in the latter case, only defendants who could prove that

they attempted to retreat before using deadly force could successfully claim selfdefense. Even then, defendants of the second type did not merit a full acquittal but

only an escape from execution, which was the usual penalty for intentional killings

by private citizens. Thus under the English rule, as articulated by Edward Coke,

a person was justified in using deadly force against another, even to the point of

killing the other, if threatened with imminent death or grave injury for which the

defendant bore no responsibility or blame. In other cases where the defendant and

the deceased mutually came to blows and the embroglio reached the point where

the defendant found it necessary to kill the other rather than die, the defendant could

only claim self-defense in the defendant had first attempted to retreat.”33

American law has developed beyond the English law over the course of 19th and 20th centuries. 

And, for the most part, it has done so toward somewhat more liberal use of the “Stand Your

Matthew Hale, The History of the Pleas of the Crown 481 (1736)(stating that a “true man” has no duty to retreat and 

that if he kills his assailant, it is not a felony). See Cynthia Ward, “Stand Your Ground” and Self Defense, 42 Am. 

J. Crim. L. 89 (2015)(citing all three of the above).

32 Blackstone at vol. III at 180.

33 Ward at 98-99.
Commissioners’ Statements 43

Ground” approach.34 Erwin v. State (1876) was a significant early case.35 It concerned an

altercation between a farmer and his son-in-law, who is described as a “cropper” on the farmer’s

land. The two argued over who had the rights to a certain shed. In the course of the argument, the

son-in-law was said to have approached his father-in-law with an ax in a threatening manner,

despite the latter’s warning to stop. When the son-in-law got within striking distance, the fatherin-law shot him. 

After discussing the evolution of the doctrine in this area, the Ohio Supreme Court asked: “Does

the law hold a man who is violently and feloniously assaulted responsible for having brought [the

necessity for self defense] upon himself, on the sole ground that he failed to fly from his assailant

when he might have safely done so?” The Court’s answer was no. It held that while the right to

use deadly force in self-defense is not available for minor trespasses or to a man who provoked

the assault, “a true man, who is without fault, is not obliged to fly from an assailant, who, by

violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.”

Some later authorities have assumed that the Erwin court was using the term “true man” as a way

of invoking a particularly “virile man” or “macho man.”36 In fact, the court was simply using the

term used by Matthew Hale in the 17th century. Both the Erwin court and Hale appear to have

34 See Ward at 99-100 (“In the mid-to-late nineteenth century ... the American approach changed as homegrown 

commentators, influential state supreme courts, and United States Supreme Court opinions developed a more robust 

Stand Your Ground doctrine, which become a widely adopted basis for self-defense in this country”). See Richard 

Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society 5-7 (1994).

35 29 Ohio St. 186 (1876).

36 See, e.g., State v. Abbott, 174 A.2d 881, 884 (N.J. 1961)(“advocates of no-retreat say the manly thing to do is to 

hold one’s ground, and hence society should not demand what smacks of cowardice”); Richard Maxwell Brown, No 

Duty to Retreat: Violence and Values in American History and Society 17 (1994)(The language of the [Erwin 

Court] with its emphasis on the action of a ‘true man’ ... illustrates ... concern for the values of masculine bravery 

in a frontier nation”). See also Caroline E. Light, Stand Your Ground: A History of American’s Love Affair with 

Lethal Self-Defense (2017). Light acknowledges that Hale used the term “true man,” but seems unaware that of 

how that term was used in the 18th century. Instead, she writes that “[l]ethal self-defense was a right of “true 

manhood.” For reasons that make no sense to me, Light specifically associates “Stand Your Ground” laws with 

white men in particular:

Standing one’s ground against a perceived threat has long been a white, masculine prerogative in 

the United States. When European settlers arrived on American soil, they justified violence as 

necessary to their basic survival, seizing land that was already inhabited while imprisoning or 

exterminating its occupants. Settler colonialism and, later, the idea of Manifest Destiny—spreading 

Christianity across the continent—together demanded the subjugation of nonwhites. And the rights, 

privileges, and protections of citizenship were inaccessible to all but white, property-owning men. 

The legacies of this under-recognized history of repression and exclusion in the name of national 

survival still haunt us today.

Id. at 1.
44 Race Effects of Stand Your Ground Laws

meant “true” in the sense of trustworthy and honest. A “trueman” as used in the 18th century was

a law-abiding man.37

Note that the defendant in Erwin had been arguing with the deceased. Just in case Blackstone and

Coke viewed mutual combatants as including two individuals engaged in an spirited argument, the

court made it clear that, under Ohio law, given that the father-in-law had not assaulted the son-inlaw, he was not blameworthy and hence retained the right to stand his ground. It is not and should

not be regarded as blameworthy to engage in an argument—not in America.

A year later, the Indiana Supreme Court decided Runyan v. State (1877).38 Runyan was an Election

Day altercation. Both the defendant and the deceased were in town to vote and to hear the election

results for the 1876 Presidential contest between Rutherford B. Hayes (favored by the deceased)

and Samuel Tilden (favored by the defendant). The deceased, who was described by the court as

“a large and vigorous man,” had several encounters with the defendant during the day at which he

used strong and threatening language. Out of fear of the deceased, the defendant, who had lost

much of the use of his right arm fighting for the Union during the Civil War, borrowed a gun. 

Later that day, the deceased rushed him, striking him several times. The defendant drew his gun

and shot him dead. The jury was instructed that he had a duty to retreat and hence convicted him.

The Indiana Supreme Court reversed. Stating that “the tendency of the American mind seems to

be very strongly against the enforcement of any rule which requires a person to flee when assailed,”

the Court stated: “[W]hen a person, being without fault and in a place where he as a right to be, is

violently assaulted, he may, without retreating, repel force by force, and if, in reasonable exercise

of his right of self-defense, his assailant is killed, he is justifiable.”39

37 See The Compact Oxford English Dictionary (2d ed. 1991)(“trueman ... A faithful or trusty man; an honest man 

(as distinguished from a thief or other criminal”). The OED considers this definition to be obsolete. See Garrett 

Epps, The History of Florida’s “Stand Your Ground Law, American Prospect (March 12, 2012)(“a ‘true man’ in the 

legal sense—means not a manly man but, in the words of the Oxford English Dictionary, ‘an honest man (as 

distinguished from a thief or other criminal”), available at http://prospect.org/article/history-floridas-stand-yourground-law. 

38 57 Ind. 80 (1877).

39 Id. at 84.
Commissioners’ Statements 45

Many courts followed Erwin and Runyan40--but not all. In Judge v. State (1877),41 the Supreme

Court of Alabama, in retaining its duty to retreat, had this to say: 

We are pleased to observe that in this case, the old, sound, and much disregarded

doctrine, that no man stands excused for taking human life, if, with safety to his

own person, he could have avoided or retired from the combat, has been given

in charge, and must have been acted on by the jury. It is to be regretted that this

salutary rule is not universally observed by juries, without reference to the social

standing of the prisoner. Its observance would exert a wholesome restraint on

unbridled passions and lawlessness, and would, in the end, preserve to the

commonwealth many valuable lives.42

Note that the Alabama court wrote that no man who could have retreated stands excused for taking

a life. This differs not just from Erwin and Runyan, but also from Coke and Blackstone (although

the court does not appear to know this).

Federal courts have been accused of initially appearing to have gone in two directions. In Beard

v. United States (1895), the U.S. Supreme Court appeared to some to be taking an approach similar

to Erwin and Runyan.

43

 Indeed, it quoted with approval broad language from Erwin. But just a

year later, in Allen v. United States (1896), the Court made it clear that it intended to apply a “Stand

Your Ground” rule only to cases that occur in the defendant’s home or on his or her property.44 

Meanwhile, Harvard law professor Joseph H. Beale called the doctrine pronounced in Erwin and

Runyan “brutal.”45 In his view, “”[n]o killing can be justified on any ground, which was not

necessary to secure the desired and permitted result; and it is not necessary to kill in self-defense

when the assailed can defend himself by the peaceful though often distasteful method of

withdrawing to a place of safety.”46

40 See, e.g., People v. Lewis, 48 Pac. 1088, 1089-90 (Cal. 1897); Boykin v. People, 45 Pac. 419, 422 (Colo. 1896); 

State v. Hatch, 46 Pac. 708, 708 (Kan. 1896); State v. Bartlett, 71 S.W. 148 (Mo. 1902). Professor Joseph H. Beale 

has collected a number of other such cases in Joseph H. Beale, Homicide in Self-Defense, 3 Colum. L. Rev. 526, 

539, §8 n. 5 (1903). 

41 58 Ala. 406 (1877). Professor Joseph H. Beale has collected a number of other cases that appear to impose a duty

to retreat in cases involving an otherwise non-blameworthy defendant acting outside his or her home in Joseph H. 

Beale, Homicide in Self-Defense, 3 Colum. L. Rev. 526, 540, §8 n. 1 (1903). 

42 Id. at 413-14.

43 158 U.S. 550 (1895).

44 164 U.S. 492(1896).

45 Joseph H. Beale, Retreat from a Murderous Assault, 16 Harv. L. Rev. 579 (1902-1903). 

46 Id. at 580.
46 Race Effects of Stand Your Ground Laws

While Beale advocated a duty to retreat, he took pains to point out that the availability of firearms

changes the calculus for many Americans: 

It is of course true that to retreat from an assailant with a revolver in his hand is

dangerous, and one whose revolver is in his hip pocket is not to be despised; the

hip-pocket ethics of the Southwest are doubtless based on a deep-felt need. But

because retreat is less often safe than in the days of knives and small-swords, it by

no means follows that retreat when certainly safe should be less requisite.47

Ultimately, the U.S. Supreme Court moved in the direction of Erwin and Runyan. It just took a

few years. In Brown v. United States (1921), Justice Holmes argued against any duty of retreat on

the part of otherwise non-blameworthy defendants:

The law has grown, and even if historical mistakes have contributed to its growth

it has tended in the direction of rules consistent with human nature. Many

respectable writers agree that if a man reasonably believes that he is in immediate

danger of death or grievous bodily harm from his assailant he may stand his ground

and that if he kills him he has not exceeded the bounds of lawful self-defense. That

has been the decision of this Court [referring to Beard]. Detached reflection cannot

be demanded in the presence of an uplifted knife. Therefore in the Court, at least,

it is not a condition of immunity that one in that situation should pause to consider

whether a reasonable man might not think it possible to fly with safety or to disable

his assailant rather than kill him.48

I can see at least two arguments for “Stand Your Ground” laws. The first argument is the one the

Ohio Supreme Court employed in the Erwin case: A “Stand Your Ground” rule saves lives. 

In Erwin, the Attorney General of Ohio, arguing in favor of a duty to retreat, had asserted that the

Court should pick the rule that will save the most lives. In rejecting the Attorney General’s

argument, the Court stated that, yes, in adopting a “Stand Your Ground” rule, it was doing exactly

that:

The suggestion, by the attorney-general, that that rule should be declared the law

which is best calculated to protect and preserve human life, is of great weight, and

we can safely say, that the rule announced is, at least, the surest to prevent the

occurrence of occasions for taking life; and this, by letting the would-be robber,

murderer, ravisher, and such like, know that their lives are, in a measure, in the

47 Id.

48 Id. at 343.
Commissioners’ Statements 47

hands of their intended victims.49

What did the Ohio Supreme court mean by that? It meant that if thugs, including would-be rapists,

murderers and armed robbers, are conscious—even vaguely conscious—of the fact that their

intended victims are obliged to flee rather than fight, it will embolden them. Indeed, it will

embolden them even if they simply have a vague expectation that they are more likely to flee. Put

differently, there will be more such attacks asthey perceive, however faintly, that efforts to commit

a crime are low risk and efforts to forcibly drive someone from a place they have a right to be will

be successful.

Thugs need not have a grasp of the law for the Ohio Supreme Court to be right. Laws both reflect

culture and influence culture, and they do it in ways that both subtle and not-so-subtle. Sure,

expectations about how a victim is likely to behave may be based on knowledge of what the law

requires him to do. But, perhaps more likely, they will be based on vague notions of what the

victim ought to do, which in turn are influenced by often-distant memories of what has happened

in the past or of what others have said about what should happen based on their own memories of

what has happened in the past. 

Also the extent to which thugs are emboldened need not be great for the Ohio Supreme Court to

be right. They need not believe their victims will certainly flee. All that is necessary is that a

“Duty to Retreat” rule alter their expectations slightly relative to their expectations under a “Stand

Your Ground” rule.

On the other hand, the view that “Stand Your Ground” rules save lives is contestable. Indeed, the

Alabama Supreme Court did just that in Judge v. State, when it wrote that a “Duty to Retreat” rule

“would exert a wholesome restraint on unbridled passions and lawlessness, and would, in the end,

preserve to the commonwealth many valuable lives.”

Who is right? Does a “Stand Your Ground” rule or a “Duty to Retreat” rule save more lives? I

am somewhat inclined to believe that in the long term it is a mistake to send a message to

aggressors that their victims are required by law to respond passively. Eventually, they may learn

to take advantage of that. I note that some researchers believe they have evidence to the contrary,50

49 29 Ohio St. at 200.

50 McClellan & Tekin (whose study is cited favorably by Commissioner Yaki in his Commissioner’s Statement) are 

among those who believe that they have uncovered evidence to the contrary. States that have passed “Stand Your 

Ground” laws or are considering passing or repealing such laws should certainly be willing to examine that evidence 

and any further evidence that may come to light on the issue. But comparing crime rates of two very different sets 

of states with different histories, cultures and demographics, attempting to control for those differences the best one 

can, but then attributing the remaining differences to “Stand Your Ground” laws is fraught with risk. States are 

complicated things. And the evidence that McClellan & Tekin have produced is rather odd. It purports to show that 

in the seven months following each “Stand Your Ground” state’s adoption of its law, homicides dropped sharply 

relative to other states, but that beginning in the eighth month through the fourteenth month, the homicide rates in 
48 Race Effects of Stand Your Ground Laws

those states began to climb, while they remained more stable in the other states. The net effect of these changes was 

to raise the homicide rate in “Stand Your Ground” state relative to the other states. Such a roller coaster relationship 

is hard to attribute to changes in the law (which, at least with a change as minor as this one, one would expect to 

take a decade or more to affect the culture anyway). Why would a “Stand Your Ground” law cause a decrease in 

homicides during the first seven months followed by a six-month increase? 

The most obvious explanation is that something else is driving this (especially since the study finds states that 

enacted more limited “Stand Your Ground” statutes during the same period were found to have experienced a 

decrease in homicides rather than an increase like that found for the states that enacted the stronger versions of that 

law). Knock me over with a feather if large numbers of the citizens of these states could tell you the difference 

between their state’s statute and the statutes of other “Stand Your Ground” states.

There are several possibilities I can think of that are worth exploring. I’m sure others can think of more. First, the 

states that adopted the strong versions of “Stand Your Ground” are disproportionately located in the South, where 

incarceration rates have historically been higher than average. During the period of the enactment of these statutes, 

those incarceration rates had become controversial and difficult to maintain. The trend toward greater incarceration 

de-accelerated and ultimately reversed itself in the years around 2006-2009. Is it possible that Southern states were 

disproportionately affected and hence witnessed an uptick in homicides not matched in other parts of the country? I 

believe this is worth looking into. 

An alternative explanation was suggested by the authors themselves--that gun ownership was climbing faster in 

“Stand Your Ground” states than in others (although the authors suggest that “Stand Your Ground” statutes may 

have caused that increase). The notion that “Stand Your Ground” laws led to a greater rate of gun ownership rates 

strikes me as attributing too much to these laws. The more likely explanation for any difference in rates of increase 

in gun ownership is that Southern states, for cultural reasons, were especially fertile ground for sparking increased 

interest in firearms at a time that the Supreme Court was deciding Second Amendment rights. Issues of firearm 

control were very much on the minds of many Americans. See District of Columbia v. Heller, 554 U.S. 570 (2008). 

Prior to the Trayvon Martin case “Stand Your Ground” laws received far less attention. 

A third possibility is that that increases in population over the course of the decade were insufficiently taken into 

account by the authors. Since the “Stand Your Ground” states tend to be high-growth states, this would make it 

appear that homicides were increasing in “Stand Your Ground” states, while the increase was largely a function of

population growth. Texas, Arizona, and Florida, for example, grew 20.6%, 24.6% and 16.6%% respectively and 

were “Stand Your Ground” states, while Illinois, New York, and Ohio grew 3.3%, 2.1% and 1.6% respectively and 

did not enact “Stand Your Ground” statutes. I cannot tell the extent to which the authors adjusted their figures to 

account for this constant change in population size. 

Note the fact that population growth can itself result in increased feelings of rootlessness and hence in higher crime. 

Even taking into consideration actual population for each time period looked at will not account for this.

I am not in a position to draw conclusions here, except to state that the peculiarities in the findings of McClellan & 

Tekin leave me unconvinced that they have discovered a causal connection between “Stand Your Ground” statutes 

and an increase in homicide rates. See also supra at n. 12.

The same is true of the findings in Cheng & Hoekstra. Their study is similar to that off McClellan & Tekin in that it 

attempts something that is nearly impossible: It tries to isolate the effects of “Stand Your Ground” laws from the 

many other differences between states like Texas, Florida, and Arizona (which have adopted “Stand Your Ground” 

statutes) and states like New York, Illinois and Ohio (which have not).

Cheng & Hoekstra (whose study is also cited favorably by Commissioner Yaki) used a difference within difference 

approach. They make two findings: (1) If “Stand Your Ground” statutes have any deterrence effect on robbery, 

aggravated assault and burglary, it is a very small one; and (2) On the other hand, states that passed “Stand Your 

Ground” statutes (which the authors repeatedly call “Castle Doctrine” laws) experienced a very substantial uptick in 

homicide following the adoption of those statutes. 
Commissioners’ Statements 49

just as some believe they have evidence in support.51 But I am skeptical that overly ambitious

and complex regressions can be the basis of any conclusions.52 And I submit that anybody who is

If I were, for example, a Texas state legislator, I’m not sure I’d be as discouraged as Cheng & Hoekstra at the 

evidence of the deterrence effect of “Stand Your Ground” laws. They admit that it may well be the case that “Stand 

Your Ground” laws caused a 2.5% decrease in aggravated assault, a 1.9% decrease in robbery, and a 2.1% decrease 

in burglary. The authors evidently think that is small potatoes. In fact, however, that would represent 1,822 fewer 

aggravated assaults, 633 fewer robberies, and 3, 123 burglaries in Texas each year.

That may not be as impressive as the effect one might get from hiring 500 more police officers or cutting the 

unemployment rate by a percentage point, but it takes far less from the public purse than the former and it is more 

within the control of the state legislature than the latter. If I were a Texas legislator I would be more than delighted 

to learn that such a small tweak to state law had such a beneficial effect. 

But Texas legislators shouldn’t get excited. Cheng & Hoekstra did not find such an effect; they simply could not 

eliminate the possibility. Moreover, their finding that “Stand Your Ground” states have experienced an 8% uptick in 

homicide relative to other states (after controlling for many differences between the groups of states) demonstrates 

that their analysis did not take into consideration all the differences between the groups of states. It is simply 

implausible that “Stand Your Ground” statutes would have such a profound effect on homicide rates. It would be 

easier to believe that “Stand Your Ground” laws cause cancer. Consequently, their findings on deterrence must be 

viewed with great skepticism as well.

Why is the 8% implausible? “Stand Your Ground” laws affect only a very small number of homicide cases. Very 

few homicides involve claims of self defense. See text and note at n.10. Of those that do, most involve situations in 

which it is obvious that the individual invoking self defense had no opportunity to flee. The danger was imminent. 

Of those where flight would have been possible, many occur in the home, where the right to stand one’s ground is 

longstanding and universal across American jurisdictions. 

51 A Texas study in this regard is interesting. In September of 2007, Texas passed a “Stand Your Ground” law. In 

November of the same year, in suburban Houston, resident Joe Horn shot and killed two burglars who had been 

burglarizing his neighbor’s home. He said they were coming at him in the neighbor’s front yard. The incident was 

recorded on a 911 tape with the 911 operator urging Horn to wait for the police to arrive rather than to insert himself 

into the situation. See https://en.wikipedia.org/wiki/Joe_Horn_shooting_controversy. Rightly or wrongly under 

Texas law, the grand jury declined to indict.

Researchers found that through the period leading up to August 31, 2008, burglaries decreased in Houston, but not 

in Dallas. Ling Ren, Yan Zhang & Jihong Solomon Zhao, The Deterrent Effect of the Castle Doctrine Law on 

Burglary in Texas: A Tale of Outcomes in Houston and Dallas, 61 Crim & Delinquency 1127 (2012). Did Texas’ 

“Stand Your Ground” law have any causal role to play here? It is certainly plausible that the intense publicity 

surrounding the Horn case deterred burglaries. But did Horn’s action have any causal connection to the “Stand Your 

Ground” law? If he would have acted the same way under previous law, then the answer would be “no.” But it is 

difficult to say. Maybe he would not have.

52 A good example is a study of Arizona’s 2006 “Stand Your Ground” law. Looking at data from 2002 to 2011, its

author found that the number of robberies was not decreased by the passage of that legislation and (more

importantly) the number of homicides was not increased. This suggests the change was not very important. 

Curiously, it nevertheless found that the number of suicides had increased. Since it is not obvious why “Stand Your

Ground” legislation would lead to more suicides (but not more homicides), it seems odd to attribute the suicide

increase to the “Stand Your Ground” law. But the author seems inclined to do so anyway. Mitchell B. Chamlin, An

Assessment of the Intended and Unintended Consequence of Arizona’s Self-Defense, Home Protection Act, 37 J.

Crime & Justice 327 (2014). Perhaps the Great Recession, which commenced in 2008 and lasted many years, is a

more likely contributor to rising suicide rates over this period. Mayowa Oyesanya, Javier Lopez-Morinigo,

and Rina Dutta, Systematic Review of Suicide in Economic Recession, 5 World J. Psych. 243 (2015). See also

David K. Humphreys, Antonion Gasparrini & Douglas J. Wiebe, Evaluation the Impact of Florida’s “Stand Your
50 Race Effects of Stand Your Ground Laws

certain about the answer to this question for all time is making a mistake. It depends on a host of

unknowables. And the answer may be different for one culture than it is for another. It is thus a

question that needs to be left to the political judgment of legislatures or, in the absence of a

judgment by a legislature, by the courts.

The best I can offer may be this: I very much doubt the effect is large, no matter which direction

it goes. Stand Your Ground laws apply to only a few cases, and most citizens are unaware of their

existence. Some advocates of the “Duty to Retreat” have tried to suggest that the states that have

adopted “Stand Your Ground” rules tend to be those that value a gun-slinging image. One would

think, however, the longer a state has employed a “Stand Your Ground” rule, the more dangerous

they would be to live in (and the longer a state had been known for its “Duty to Retreat” rule, the

more tranquil it would be). If so, that would mean Ohio and Indiana should be among the most

dangerous, and Alabama among the most tranquil. Yet I doubt many Americans view those states

that way.

The second argument in favor of a “Stand Your Ground” rule is a prudential one that arises out of

the difficulty of knowing for sure whether a defendant could have safely retreated. One could say

that “Stand Your Ground” rules create an irrebuttable presumption that if an otherwise innocent

person decides to stand his ground rather than flee, that is was because he could not have safely

retreated. Such a presumption will be wrong sometimes, but it may be right more often than a rule

that juries must decide in each case whether the defendant could have safely retreated.53 

Beale, of course, disputed the wisdom ofsuch a rule. He argued that just because it is often difficult

to judge whether retreat would have been safe it “by no means follows that retreat when certainly

safe should be less requisite. “

One can conceptualize taking the issue away from the jury by irrebuttably presuming an otherwise

innocent defendant could not have safely retreated as adhering to the logic of Justice Holmes: 

Expecting detached calculation from someone who is in danger of imminent death is to expect far

too much. Give them a break.

I don’t need to resolve these issues. Legislatures are in a better position to judge these matters

than a law professor. But here’s the bottom line: Whether one supports or opposes “Stand Your

Ground” Self-Defense Law on Homicide and Suicide by Firearm, JAMA Intern. Med. 44 (January 2017)(making

extraordinary claims out of proportion to the number of self-defense cases).

53 The argument for this approach may be stronger in more recent centuries than it was in 16th century England, 

when altercations were more likely to involve swords, knives or fists than guns. In 19th-, 20th- or 21st-century United 

States, the likelihood that guns will be involved increased very substantially. The proportion of cases in which 

retreat will be ill-advised thus increased substantially. At some point, it arguably makes sense to presume 

irrebuttably that retreat would have been unsafe.
Commissioners’ Statements 51

Ground” laws, Attorney General Holder’s view that they are somehow novel is incorrect. This is

a debate that has been going on a long time. 

THE APPARENTLY WIDESPREAD NOTION THAT “STAND YOUR GROUND” LAWS

ALLOW AN INDIVIDUAL TO USE DEADLY FORCE IF HE SIMPLY “FEELS

THREATENED” IS FALSE.

The argument that “Stand Your Ground” laws allow anyone who feels threatened is frequently

repeated.54 Even former President Obama appears to have bought into this misimpression. Shortly

after George Zimmerman was acquitted in the Trayvon Martin case, Obama asked what would

have happened had the roles been reversed: “[D]o we actually think that [Trayvon Martin] would

have been justified in shooting Mr. Zimmerman, who had followed him in car, because he felt

threatened?”55

But it is an ill-informed question. Florida’s “Stand Your Ground” law as to the use of deadly force

is as follows:

776.012 Use or threatened use of force in defense of person.— ...

(2) A person is justified in using or threatening to use deadly force if he or she reasonably

believes that using or threatening to use 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. A person who uses or threatens to use deadly force in

accordance with this subsection does not have a duty to retreat and has the right to stand

his or her ground if the person using or threatening to use the deadly force is not engaged

in a criminal activity and is in a place where he or she has a right to be.

Note that what I am discussing here is not really about “Stand Your Ground” itself. This goes to

the contours of basic self-defense law.56 Florida requires a reasonable belief that one is being

54 Commissioner Yaki appears to be among those who buy into this misconception. See Yaki Statement at 16-17. 

See also Robert Leider, Understanding Stand Your Ground, Wall Street Journal (April 18, 2012)(“Many have 

asserted that in Florida anyone who believes he is in danger can use deadly force. ... These perceptions of the law 

are wrong. ... [Florida’s Stand Your Ground law requires that an individual] “reasonably believe that the aggressor 

threatened him with death, great bodily injury, or intended to commit a forcible felony ....”). 

55 Transcript: Obama Addresses Race, Profiling and Florida Law, CNN (July 19, 2013)(italics added), available at 

https://www.cnn.com/2013/07/19/politics/obama-zimmerman-verdict/index.html. See also Editorial: “Stand Your 

Ground” Doesn’t Stand Common Sense Test, York Dispatch (October 24, 2018)(“[T]here should be little argument 

that so-called “stand your ground” laws, which allow armed citizens to shoot and kill assailants if they feel 

threatened, are unnecessary invitations to vigilante homicide and need to be rescinded”), available at 

https://www.yorkdispatch.com/story/opinion/editorials/2018/10/24/editorial-stand-your-ground-doesnt-standcommon-sense-test/1737906002/. 

56 In tort law, only someone who reasonably believes that his assailant is about to inflict an intentional contact or

other bodily harm and that he is thereby put in peril of death, serious bodily harm or ravishment, which can be

safety prevented only by the immediate use of force likely to cause death or serious bodily harm. See Restatement

(Second) of Torts § 65 (1965). The Model Penal Code, on the other hand, is a little different and is considered
52 Race Effects of Stand Your Ground Laws

threatened. And not just any threat of intentional contact or bodily harm will do. The threat has

to put the individual in peril of death, great bodily harm or the imminent commission of a forcible

felony (e.g. rape). Moreover, the threat must be imminent. If there is time to call the police, then

the police must be called. Any suggestion that deadly force can be employed if someone merely

feels threatened is thus false. 57 

unusual: It doesn’t mention reasonableness (though it does require “the actor [to] believe[] that such force is

immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person

on the present occasion.” Model Penal Code § 3.04(1). The Model Penal Code, however, does impose a duty to

retreat (in places other than the home). I can see the argument for the Model Penal Code’s failure to require the use

of deadly force in self-defense to be reasonable for criminal law purposes (although for tort law purposes there

needs to remain, at the very least, a requirement of reasonableness). One could argue that incarcerating or otherwise

punishing a person who happens to be unreasonably timid and anxious serves no purpose. But if one is going to

take that position it is important that one stick with a duty to retreat. “Stand Your Ground” jurisdictions should (and

do) require reasonableness.

57

 A variation of this argument involving the concept of “implicit bias” appears in Commissioner Yaki’s Statement.

Commissioner Yaki does not define the term “implicit bias,” but I understand him to be referring to the “attitudes or

stereotypes that affect our understanding, actions, and decisions in an unconscious manner.” 

http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/. In the racial context, this is often interpreted to

mean that many white persons who profess not to be racially biased nonetheless actually are unconsciously biased

against racial and ethnic minorities and that this unconscious bias means that whites frequently discriminate against

racial and ethnic minorities without being aware of it. 

Talk of “implicit bias” is fashionable these days, especially among those involved in the diversity training business –

perhaps in large part because a free, readily available online test purports to be able to measure an individual’s 

“implicit bias” against African Americans. See Project Implicit, available at 

https://implicit.harvard.edu/implicit/takeatest.html. There is, however, significant reason for skepticism that the test 

accurately measures an individual’s actual bias.

A full discussion of the merits of the IAT lies beyond the scope of this Statement, but for overviews of the major

criticisms of the IAT, see generally Jesse Singal Psychology’s Favorite Tool for Measuring Racism Isn’t Up to the

Job, New York Magazine, January 11, 2017, available at https://www.thecut.com/2017/01/psychologys-racismmeasuring-tool-isnt-up-to-the-job.html; Olivia Goldhill, The world is relying on a flawed psychological test to fight

racism, Quartz, December 3, 2017, available at https://qz.com/1144504/the-world-is-relying-on-a-flawedpsychological-test-to-fight-racism/; Althea Nagai, The Implicit Association Test: Flawed Science Tricks Americans

into Believing They Are Unconscious Racists, The Heritage Foundation, December 12, 2017, available at

https://www.heritage.org/science-policy/report/the-implicit-association-test-flawed-science-tricks-americansbelieving-they; Heather Mac Donald, Are We All Unconscious Racists? City Journal, Autumn 2017, available at

https://www.city-journal.org/html/are-we-all-unconscious-racists-15487.html.

The important part is this: Even if one is less skeptical of implicit bias than I am, it still makes little sense to use

implicit bias as an argument against the “reasonable belief” component of “Stand Your Ground” laws. As discussed

above, the plain text of the Florida law requires that the person must believe that the use of 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.” The perception that an individual is threatening merely because of his or her race would not

qualify under this standard. Moreover, the “reasonable belief” standard in not just a component of “Stand Your

Ground” laws, it is part of traditional self defense. I trust that Commissioner Yaki would not abrogate traditional

self defense—i.e. impose upon Americans who are being threatened with imminent death or great bodily harm have

a duty to die simply because the implementation of that defense will never be perfect.
Commissioners’ Statements 53

THE APPARENTLY WIDESPREAD NOTION THAT INITIAL AGGRESSORS CAN

BENEFIT FROM “STAND YOUR GROUND” LAWS IS ALSO FALSE.

Another common misunderstanding is that an initial aggressor can invoke the right to stand his

ground. This, too, is mistaken. From the time of Coke and Blackstone, it has been repeatedly

articulated that if two individuals are engaging in mutual combat with each other, such that they

are both in some way at fault, there is a duty to retreat if it can be done safely before deadly force

may be employed. This aspect of the rule is important to the law. Consider, for example, the case

of duelists—perhaps the quintessential mutual combatants. Without a duty to retreat on the part

of mutual combatants, whoever prevails in the duel would be able to claim that since the other

party intended to kill him they are in the clear for acting in self-defense. Imposing a duty to retreat

on both of them preserves to the state the ability to come down hard on duelists. 

The case for denying the initial aggressor in an attack on an innocent victim is a fortiori an

exception to traditional “Stand Your Ground” rules. Blackstone discusses the innocent victim’s

right of self-defense without any qualifier. Coke is explicit that the innocent victim has no duty to

give way.

This was evident in American cases as well. For example, in Erwin v. State, the Indiana Supreme

Court placed an important qualifier on its “Stand Your Ground” rule. It stated that a man “who is

without fault” “is not obliged to fly from his assailant.” It never suggested that an initial aggressor

(i.e. a man who is with fault) is entitled to that same option.

Most important, the Florida “Stand Your Ground” law is not to the contrary. It explicitly states

that the justification of self-defense is not available to an individual who: 

(1) Is attempting to commit, committing or escaping after the commission of, a forcible felony; 

or

(2) Initially provokes the use or threatened use of force against himself or herself, unless:

(a) Such force or threat of force is so great that the person reasonably believes that he or 

she is in imminent danger of death or great bodily harm and that he or she has exhausted 

every reasonable means to escape such danger other than the use or threatened use of 

force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and 

indicates clearly to the assailant that he or she desires to withdraw and terminate the 

use or threatened use of force, but the assailant continues or resumes the use or 

threatened use of force.

Fla. Stat. § 776.041 (2014).
54 Race Effects of Stand Your Ground Laws

Determining what constitutes the “initial aggression” (or in the words of the Florida statute, what 

“initial[] provo[cation]” may sometimes require a little thought. The most obvious cases involve 

physical attacks. Indeed, physical attacks are by far the most typical initial aggression. If Alice 

walks up to Bob and punches him in the nose, and Bob, fearful that Alice is about to cause him 

seriously bodily harm, draws his gun, Alice has a duty to retreat, if she can do so safely, rather 

than to draw her gun and kill Bob. Why? Because Alice initially provoked Bob (§ 776.041(2)). 

This is so even though the punch in the nose may itself be only a misdemeanor and not a felony 

under § 776.041(1).

At the other end of the spectrum, certain things are not considered initial aggression or provocation. 

An individual has the right to discuss a sensitive subject, to engage in an inconsiderate act, to 

demand an explanation of the other individual’s actions, and even to hurl insulting epithets at the 

other individual without forfeiting any aspect of his right to defend himself.58 

One can easily see how a nation that is careful to protect free expression in so many ways would 

be careful not to define the exercise of free expression as “aggression” or “provocations.”

Are there things that don’t constitute violence that are classed as initial aggression or provocation? 

Professor Cynthia Ward in “Stand Your Ground and Self-Defense” cites “being caught sleeping 

with the deceased wife” as a possible example.59 But, if so, that goes far beyond inconsiderate 

acts, insults, or annoying interrogations.

The Trayvon Martin case was thus not a case of initial aggression by Zimmerman. Some have 

suggested that George Zimmerman somehow “provoked” Martin by following him and asking him 

why he was there. But this does not rise to the level of aggression or provocation as those terms 

have been understood. 

Even if it did constitute aggression or provocation within the meaning the Florida statute,

Zimmerman would likely qualify under § 776.041 (2)(b) as having “withdraw[n] from physical

contact with [Martin] and indicate[d] clearly to [Martin] that he ... desire[d] to withdraw and

terminate the use or threatened use of force, but [Martin] continue[d] ... the use or threatened use

of force.

The uncontradicted evidence was not just that he had turned away and was surprised by Martin,

who had turned the tables and was now following Zimmerman. The jury found that Martin had

knocked Zimmerman to the ground and was beating Zimmerman’s head into the concrete sidewalk

when Zimmerman pulled out his gun and shot Martin. At that point, retreat was impossible.

58 2 Wharton’s Criminal Law § 128 (5th ed. 1993), quoted in Ward at 114.

59 Ward at 114 (citing id.).
Commissioners’ Statements 55

Might the jury have been wrong about the facts? Anything is possible (though the scrapes on the

back of Zimmerman’s head must have gotten there somehow). But the point remains that the

problem in that case was not the Florida “Stand Your Ground” law. 

CONCLUSION:

The Commission is publishing this transcript more than seven years after Trayvon Martin passed 

away—without any reference to its independent research on the subject . The controversy over his 

death and over “Stand Your Ground” laws has largely faded out of the headlines. Some members 

of this Commission might be inclined to bemoan this report not being as relevant as it might have 

been had it been ready closer to 2012. I disagree. Cooler heads should have prevailed early on 

during the debate over Stand Your Ground laws. But they did not. Now that years have passed, 

the Commission could have made a modest contribution to that debate by publishing the results of 

its research. It chose to bury those results instead only because they did not go in the direction the 

Commission’s majority was hoping for. 
56 Race Effects of Stand Your Ground Laws

Statement of Commissioner Peter N. Kirsanow

The Commission held a hearing on Stand Your Ground laws in the wake of the death of Trayvon 

Martin. In my view, this is not a subject the Commission is well-equipped to address. Reviewing 

the witness statements and hearing transcripts four years after the hearing, it seems that most of 

the disagreements center around four primary issues:

1) Whether there is a duty to retreat when exercising self-defense; 

2) Self-defense;

3) Possession of firearms; and

4) Race.

The first three items are closely linked. However, all of them were jumbled together during our 

briefing under the heading “Stand Your Ground,” and also in regard to the tragic MartinZimmerman altercation. This did not bring clarity to the discussion. 

The Duty to Retreat

The term “Stand Your Ground” is confusing. It sounds novel, when it is merely one long-standing 

interpretation of the law of self-defense.1 Nor is this interpretation limited to states regarded as 

politically conservative.2 Therefore, in this section, I will discuss the disagreement over whether 

there is a duty to retreat when exercising self-defense, as that better describes the issue.

One of the problems with having the Commission investigate an issue such as Stand Your Ground 

is that there are different and irreconcilable values in play. It is tempting to view Stand Your 

Ground as a matter of determining whether individuals of a particular race are more likely to 

invoke Stand Your Ground or not, but the conflict is more fundamental. The issue is really a matter 

of determining who should bear a heightened risk of injury – the aggressor or his victim. States 

that have adopted stand your ground laws or have common-law doctrines of self-defense that are 

similar to stand your ground have decided that the aggressor should bear the heightened risk of 

1 See Eugene Volokh, “The Duty to Retreat in the Founding Era,” The Volokh Conspiracy, December 21, 2017, 

http://reason.com/volokh/2017/12/21/the-duty-to-retreat-in-the-founding-era. 

2 See Cal. Jury Instr. – Crim. 550. Self-Defense – Assailed Person Need Not Retreat.

A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the 

exercise of [his][her] right of self-defense a person may stand [his][her] ground and defend [himself][herself] by the 

use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with 

similar knowledge; and a person may pursue [his] [her] assailant until [he][she] has secured [himself][herself] from 

danger if that course likewise appears reasonably necessary. This law applies even though the assailed person 

might more easily have gained safety by flight or by withdrawing from the scene. [emphasis added]
Commissioners’ Statements 57

injury. States that adhere to a “duty to retreat” say that the victim should bear the heightened risk 

of injury. 

I was struck by this while reading exchanges between various commissioners and South Carolina 

Representative Todd Rutherford. This exchange is representative:

Vice-Chair Timmons-Goodson: Okay. Second and last question. You say that stand 

your ground law to you means that you don’t have to live in force –

Representative Rutherford: Fear

Vice-Chair Timmons-Goodson: - that it doesn’t make sense to you that one would 

not be permitted to elevate force. I guess I’m left wondering why is it not common 

sense that if someone comes up and pushes you, that you push them back, or 

someone comes up and hits you with a fist that you hit them with a fist, why should 

– I mean, why does it make such sense that you could elevate the force that you use 

to a gun or a knife in response to being pushed or hit with a fist?

Representative Rutherford: Commissioner, respectfully, I submit that you should 

have a right to not have people hit you with a fist. That you have a right not to be 

pushed. That you have a right not to wait and see what the next step will be once 

someone hits you in the face. 

You should not wait to see whether you’re going to be knocked out. You should 

have a right to pull that gun if you have one and say, “Leave me alone. I don’t want 

to be bothered.” And that’s what the general assembly found. We have a right to 

live in peace. 

And peace means that I’m not going to wait on you to hit me. I’m not going to wait 

on you to push me. I’m standing with my two children – I have two little boys. And 

if you’re going to walk up to me and try and assault me or one of them I’m not 

going to wait to see what your next step is going to be before I decide what I’m 

going to do. 

That’s what the general assembly found. And I think that’s common sense.3

It might seem hyperbolic to say that a duty to retreat shifts extra risk on to the victim of aggression, 

and undoubtedly that is not what my colleagues have in mind. Nonetheless, that is the practical 

effect. As Representative Rutherford said, the duty to retreat means that you have to “wait and see 

what the next step will be once someone hits you in the face.” Professor Katheryn Russell-Brown 

also discussed these disparate values in her written testimony:

The second approach [to the issue of use of deadly force in self-defense] is “no 

retreat.” In the face of threatened violence, a person should be allowed to stay put 

– to stand his ground and fight back against his attacker. In the 1800s, the “no 

3 Transcript at 73-74.
58 Race Effects of Stand Your Ground Laws

retreat” approach was particularly attractive to frontier states, which viewed retreat 

as a sign of cowardice. Erwin v. State, an 1876 case decided by the Ohio Supreme 

Court, represents this perspective. The court declined to use the retreat rule and 

overturned the defendant’s conviction. It stated, “[A] true man, who is without 

fault, is not obliged to fly from an assailant who, by violence of surprise, 

maliciously seeks to take his life or do him enormous bodily harm.” In Brown v. 

United States (1921), the U.S. Supreme Court addressed the retreat rule. The 

murder case involved a victim who had a knife and a defendant who had a gun. The 

Court ruled that retreat is not always required. Instead, it is a factor for the court to 

consider evaluating a self-defense claim. Many people viewed the rule of retreat as 

an outdated legal carryover from the common law. Today the majority of states do 

not require retreat before the use of deadly force.4

This difference of opinion, largely rooted in cultural differences, persists today.5 As Ilya Shapiro 

stated in his written testimony, “[T]he core of the debate over SYG – the real one, not the phony 

way we’ve been having lately – is really one about the duty to retreat.”6

Self-Defense

The views expressed at the hearing would in many cases cast the idea of self-defense into jeopardy 

entirely. For example, David Labahn stated:

Even hearing that California is a stand your ground state surprises me immensely. 

I was a 10 year prosecutor there in that state, I prosecuted plenty of homicides and 

lots of violence, especially in Southern California. 

I then spent 10 years at the State Association. I was running the California District 

Attorneys Association when the proponents of this legislation – it was 2006, they 

brought it to Sacramento and they tried to put the bill in. We laughed at it. We 

laughed that you’re going to have criminal immunity and civil immunity for taking 

somebody else’s life. We thought it was almost funny that – you’ve got to be 

kidding me.7

One problem with Mr. Labahn’s statement is that if you kill someone in self-defense (and Stand 

Your Ground is merely one way the law approaches the natural right to self-defense) then yes, you 

are not criminally prosecuted for taking someone’s life. Nor should you be civilly liable for taking 

someone’s life if you were attacked by that person and had to defend your own life. If you clearly 

acted in self-defense, you shouldn’t have to go through a trial to prove that. As with so many other

aspects of government, the process is itself a punishment. The fact that Mr. Labahn thought this 

4 Written Statement of Katheryn Russell-Brown, University of Florida, Levin College of Law, at 3-4.

5 Written Statement of Ilya Shapiro, Cato Institute, at 3. 

6 Written Statement of Ilya Shapiro, Cato Institute, at 3.

7 Transcript Panel 3 at 61-62.
Commissioners’ Statements 59

idea laughable illustrates how opposition to Stand Your Ground is often rooted in skepticism of 

self-defense. 

John Lott made an interesting observation regarding homicide rates in states that introduce Stand 

Your Ground laws. If the homicide rate in a state does increase, and if that increase is attributable 

to this law, it could be because more people are availing themselves of the right of self-defense.

(There are relatively few homicides, so even a small increase in the number will show up in the 

statistics.) A person who would have been robbed, assaulted, or raped defends herself, and in 

doing so takes the aggressor’s life.8 Some of my colleagues raised the question of why a person 

wouldn’t use something short of deadly force to defend herself. I agree that is preferable. But many 

times, a criminal (or an angry ex-boyfriend) will prey on someone who is physically weaker. If a 

would-be mugger is looking for a victim and an Ohio State football player walks down one side 

of the street, and an elderly man in a wheelchair rolls down the other side of the street, the mugger 

will probably think it will be less trouble to attack the elderly man. A wheelchair-bound person is 

unlikely to be able to defend himself – unless he has a gun.9 The Ohio State football player might 

– might be able to punch the mugger and go on his way (and maybe not if the mugger has a knife 

or gun), but the man in the wheelchair certainly can’t. But if he shoots the mugger, the mugger is 

more likely to die than if the football player punches him. 

Possession of Firearms

Many of the panelists cite George Zimmerman’s history of arrests and question why he was not 

barred from owning a gun.10 The fact is, though, that Zimmerman was never convicted of a felony. 

Usually progressives support programs that divert low-level offenders from jail, like the program 

that sent Zimmerman to alcohol-education classes rather than convicting him of two felonies. Let 

us imagine this had played out differently. Let us imagine that George Zimmerman had been 

convicted of those two felonies and had served his time. Then in October 2014, he is sitting in 

8

John Lott, “Misleading Journal of the American Medical Association research about Florida’s Stand Your Ground 

law,” November 28, 2016, https://crimeresearch.org/2016/11/misleading-journal-american-medical-associationresearch-floridas-stand-ground-law/. 

9

John Barnes, “Justified to kill: Why there are more self-defense killings in Michigan than anyone knows,” MLive, 

June 12, 2012, https://www.mlive.com/news/index.ssf/2012/06/justified_to_kill_why_there_ar.html. 

Sometimes, cases are reported [to the FBI] that are wildly inaccurate. 

The FBI lists an incident in Flint in 2001 where a 17-year-old boy shot a 68-year-old man. 

It was the other way around. 

The 68-year-old, Clinton Burns, was confronted in his home by Howard Byas, who climbed through the window

and threatened to kill Burns unless he surrendered his wallet and other valuables. 

Burns pointed a remote control at the teen and ordered him to leave. When the teen snatched the remote, Burns shot 

him with a .38 caliber pistol hidden under a seat cushion. 

The cushion was on his wheelchair. Burns, who passed away in 2008, was a paraplegic. 

10 Written Statement of Arkadi Gerny, Center for American Progress, at 1. 
60 Race Effects of Stand Your Ground Laws

front of the Commission testifying about how he committed a youthful indiscretion and had tried 

to go straight, and yet had been unable to obtain employment that matched his skills because of 

his criminal record. The Commission would have solemnly nodded and agreed that there is a need 

for diversion programs so that the lives of foolish young people are not permanently blighted, and 

issued a report on the need to prohibit the use of criminal background checks in hiring.11

I support the use of criminal background checks in hiring, and I believe the current regime of 

criminal background checks in gun purchases is defensible. But I think employers should treat 

arrests and convictions differently when evaluating an individual’s suitability for employment. We 

should be at least as careful when it comes to curtailing an individual’s constitutional rights. After 

all, no one has a constitutional right to a particular job – or to any job at all – but the right to carry 

a gun is protected by the Second Amendment. 

Our Constitution was not drafted with “safety” as its overriding concern. It protects certain rights, 

even at the expense of other interests. It protects freedom of speech, even though that freedom has 

often been used to hurt people while providing (in the minds of many) no discernable benefit.

12

Defendants have the right to confront their accuser, even though that has pained many victims of 

11 Those few readers who follow this Commission closely may be aware that the Commission has in fact done 

exactly that, except that the man sitting in front of us explaining the difficulty ex-felons have obtaining employment 

had committed, among other offenses, armed robbery. See U.S. Commission on Civil Rights, Assessing the Impact 

of Criminal Background Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy, 

December 2013, at 49 (testimony of Glenn E. Martin), http://www.eusccr.com/EEOC_final_2013.pdf; Glenn E. 

Martin, JustLeadership USA, https://www.heartsonfire.org/glenn-e-martin-justleadershipusa/. 

12 Snyder v. Phelps, 562 U.S. 443, 454 (2011)(Roberts, C.J.).

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of 

“purely private concern.” The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” 

“Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland 

Taliban,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re 

Going to Hell,” and “God Hates You.” While these messages may fall short of refined social or political 

commentary, the issues they highlight – the political and moral conduct of the United States and its citizens, the fate 

of our Nation, homosexuality in the military, and scandals involving the Catholic clergy – are matters of public 

import.

But see Snyder v. Phelps, 562 U.S. 443, 463 (2011)(Alito, J., dissenting). 

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that 

occurred in this case. 

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew 

Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an 

incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him 

of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media 

event. They then appeared at the church, approached as closely as they could without trespassing, and launched a 

malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert 

Snyder suffered severe and lasting emotional injury. The Court how holds that the First Amendment protected

respondents’ right to brutalize Mr. Snyder. I cannot agree.
Commissioners’ Statements 61

crime. And individuals have the right to bear arms, both as a shield against government tyranny 

and for self-protection, even though people sometimes unlawfully kill others.13

We know of no other enumerated constitutional right whose core protection has 

been subjected to a freestanding “interest-balancing” approach. The very 

enumeration of the right takes out of the hands of government—even the Third 

Branch of Government—the power to decide on a case-by-case basis whether the 

right is really worth insisting upon. A constitutional guarantee subject to future 

judges' assessments of its usefulness is no constitutional guarantee at all. 

Constitutional rights are enshrined with the scope they were understood to have 

when the people adopted them, whether or not future legislatures or (yes) even 

future judges think that scope too broad. We would not apply an “interestbalancing” approach to the prohibition of a peaceful neo-Nazi march through 

Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 

2205, 53 L.Ed.2d 96 (1977) (per curiam). The First Amendment contains the 

freedom-of-speech guarantee that the people ratified, which included exceptions 

for obscenity, libel, and disclosure of state secrets, but not for the expression of 

extremely unpopular and wrong headed views. The Second Amendment is no 

different. Like the First, it is the very product of an interest balancing by the 

people—which Justice Breyer would now conduct for them anew. And whatever 

else it leaves to future evaluation, it surely elevates above all other interests the

right of law-abiding, responsible citizens to use arms in defense of hearth and 

home.14

Race and Self-Defense

This hearing was prompted by the tragic death of Trayvon Martin. No one really knows what 

happened that night. Even George Zimmerman may not recall events with complete clarity, given 

the darkness and the stress of the situation. And tragically, Trayvon Martin is dead. What we can 

say is that a Florida jury of six women found George Zimmerman not guilty15, and that the Obama 

Justice Department found that there was insufficient evidence to charge Zimmerman with violating 

Martin’s civil rights.16 It is worth noting that even states that have a duty to retreat only require a 

person to retreat if he can safely do so. If Martin was on top of Zimmerman and attacking him, as 

Zimmerman claimed (and which is supported by forensic evidence), Zimmerman physically could 

not have retreated. Depending on how the confrontation between Martin and Zimmerman played 

13 District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010). 

14 Heller at 634-35.

15 Trayvon Martin shooting fast facts, CNN, updated May 7, 2018, https://www.cnn.com/2013/06/05/us/trayvonmartin-shooting-fast-facts/index.html. 

16 Department of Justice, Federal Officials Close Investigation Into Death of Trayvon Martin, February 24, 2015, 

https://www.justice.gov/opa/pr/federal-officials-close-investigation-death-trayvon-martin. 
62 Race Effects of Stand Your Ground Laws 

out before they wound up on the ground, Zimmerman may not have been able to safely retreat 

even before he was on the ground.17

None of this is to say that I think Zimmerman followed the best course of action leading up to the 

altercation with Martin. But the most heated claims made about this sad series of events were not 

supported by the evidence. 

The hearing was prompted by the claim that “Perhaps the most divisive and inflammatory of those 

questions [about the Martin-Zimmerman altercation] is whether racial bias skews our justice 

system through “Stand Your Ground” (SYG) laws that shield those who claim self defense.”18

This question is very difficult to answer at any level of generality. There are few justifiable 

homicides19, an even smaller number would be classified as “SYG,” and whether or not a homicide 

is justified is very fact-specific. 

Still, there is some statistical evidence that SYG laws do not have a significant racial disparate 

impact, which I discuss below. When this report was proposed, the idea was that Commission 

staff, principally Dr. Sean Goliday20, would analyze Stand Your Ground cases to determine if there 

was a racially disparate impact or racial bias in the application of Stand Your Ground Laws.21 The 

17 Transcript 1 at 37-38. 

Senator Smith: 

[O]ne of my pet peeves when discussing stand your ground is when anyone mentioned “retreat” today, 

remember Florida law and I’m unsure of other laws, always had a word that everyone neglects, it said, 

“safely retreat.” . . . The Florida law has always been, you had a duty to safely retreat. 

18 Commissioner Michael Yaki, “USCCR Special Investigation: Stand Your Ground Laws & Racial Bias,” Concept 

Paper, June 7, 2012. 

19 Transcript 2 at 17-18. 

William Krouse: 

[I]n any given year white-on-black justifiable homicide incidents they range from about 25 to 30 with a 

slight increase in the latter five year period. . . . [But] if you go to Gary Kleck in Point Blank, he estimates 

that we under-report justifiable homicides by private citizens by about two, three, maybe four-fold. So 

you’re looking at, over this 10 year period, about 250 cases or 25 cases a year of white-on-black justifiable 

homicides. . . . But if you were to look at comprehensive data you might be looking at anywhere between 

50, 75, to 100 cases per year. So if you did it for a 10 year period that’d be a thousand cases. 

20 Unfortunately, Dr. Goliday left the Commission for another position within the federal government. I thank him 

for his hard work on this report, even though none of his work saw the light of day. 

21 There’s a lot of – there’s data out there that suggests, and it only suggests, and again that’s why I think that it’s 

appropriate that we get involved in this, that there may be racial bias in the enforcement and application of these 

statutes. 

By racial bias, I’m talking about the fact that just on some statistics out there alone there are questions about whether 

or not if you are a – if you are a black victim, in other words, the person who was shot by someone asserting the 

SYG, that there seems to be a disproportionate number of those victims are African-American or are a minority 

versus homicide victims generally for that. 

Commissioner Michael Yaki, U.S. Commission on Civil Rights, Transcript of May 31, 2013 Business Meeting at 6-

7. 
Commissioners’ Statements 63

projected budget for this study was $100,000.22 It is now more than six years since the Commission 

voted to proceed with this project, and now we are releasing only a transcript – not any of the 

statistical analysis that staff conducted. I leave it to the reader to draw his own conclusions as to 

why this is so. 

Statistical Research of William Krouse, John Roman, and John Lott 

William Krouse, John Roman, and John Lott presented statistical research at the Commission’s 

hearing. When considering their research, it is important to remember that they were using 

different datasets. Krouse and Roman used justifiable homicide data from the FBI’s Uniform 

Crime Statistics Supplementary Homicide Reports.23 In addition, Krouse was only presenting data 

on justifiable homicides generally, not on homicides where SYG was invoked.24 Lott used the 

Tampa Bay Times’25 database of SYG claims made in Florida since the law was enacted through 

October 1, 2014.26 This means that Krouse and Roman were drawing from a larger but incomplete 

universe of cases (for example, Florida is not included in the Supplemental Homicide Reports).27

Lott was using a data set that included cases from only one state, but was arguably more complete 

in regard to that state and had more details about individual cases28

22 Id. at 5. 

23 See Written Statement of William Krouse; see also Transcript 2 at 19 (Roman: “I’m going to talk about the same 

data that Bill [Krouse] talked about, we used it in our analysis”.). 

24 Transcript 2 at 11.

25 Throughout the hearing transcript, witnesses refer to this newspaper as the “Tampa Bay Tribune,” but the name is 

the Tampa Bay Times.

26 Written Statement of John Lott at 3, 5.

Up through October 1st this year, the newspaper had collected 119 cases where people charged with murder relied on 

Florida’s Stand Your Ground law, starting with cases filed in 2006. . . . Besides information on the victim’s and 

defendant’s race and gender, the Tampa Bay Tribune collected a lot of other useful information on the cases: 

whether the victim initiated the confrontation, whether the defendant was on his own property when the shooting 

occurred, whether there was physical evidence, whether the defendant pursued the victim, and the type of case (a 

drug deal gone bad, home invasion, etc.). This detailed information about cases is valuable and has not been 

available in other studies.

27 Transcript 2 at 13.

The Supplementary Homicide Reports suffer from certain very serious limitations. One, Florida does not report in a 

manner that is accepted by the FBI. I think it has to do with a technicality on the offender/victim relationship, 

familial relationship. . . . Other states and localities more importantly do not participate, do not participate fully, 

and/or only participate intermittently in this Supplementary Homicides Reports Program.

Making things more difficult these reports do not always reflect the final disposition of these cases. Like the UCR, 

federal and tribal law enforcement do not report to the Supplementary Homicide Report Program.

28 Unfortunately, it appears that the Tampa Bay Times stopped updating its SYG database in 2013. To get a sense of 

the type of information Lott is referring to, the archived version of the site is available here: http://stand-yourground-law.s3-website-us-east-1.amazonaws.com/data. 
64 Race Effects of Stand Your Ground Laws

Krouse provided data to the Commission that showed the number of firearms-related intra- and 

inter-racial homicides involving black and white individuals (single victim/single offender 

incidents) from 2001-2010.29 The number of black-on-black homicides was the largest, hovering 

around 2,000 homicides annually. The number of white-on-white homicides hovered around 300-

500 fewer homicides annually – around 1500-1700. The number of inter-racial homicides was 

quite small. The number of black-on-white homicides held steady at around 250-350 annually, and 

the number of white-on-black homicides was steady at around 150 annually. The number of blackon-white homicides was always greater than the number of white-on-black homicides.

The number of firearms-related, intra- and inter-racial justifiable homicides involving black and 

white individuals from 2001-2010 was quite small, starting around 150 in 2001 and rising to just 

over 200 in 2010.30 The annual numbers of black-on-black and white-on-white justifiable 

homicides both hovered around 60 and slowly rose over 10 years. There was only one year (2004) 

when the number of white-on-white justifiable homicides was larger than the number of black-onblack justifiable homicides. The number of black-on-white justifiable homicides was miniscule –

perhaps around 5 annually – and the number of white-on-black justifiable homicides, although 

small, was much larger, around 25-30 per year.

Viewing these two charts in conjunction brings to mind a possibility that was not mentioned by 

Krouse, or indeed by anyone at the hearing: if the number of black-on-white homicides (let us say 

250 in a particular year) is much larger than the number of white-on-black homicides (150), 

perhaps it is not surprising that there are more white-on-black justifiable homicides. If whites are 

more likely to be on the receiving end of inter-racial violence, they are more likely to use violence 

to defend themselves. If there are 250 murders of whites by blacks per year, it is perhaps 

unsurprising that 25 whites per year kill a black attacker in self-defense.

John Roman, also testified at the briefing. His work in this area has received quite a bit of attention. 

In a report for the Urban Institute, Roman argued that whites were more likely to successfully 

utilize a SYG defense than were blacks.31 In particular, Roman argued, white-on-black homicides 

were more likely to be ruled justified than were black-on-white homicides, and this disparity 

became more pronounced after a state became a SYG state.32 In Roman’s report for the Urban 

29 Appendix A, “Firearms-Related, Intra-and Inter-Racial Homicides Involving Black and White Individuals (Single 

Victim/Single Offender Incidents, 2001-2010),” from Written Statement of William Krouse, at 12.

30 Appendix A, “Firearms-Related, Intra- and Inter-Racial Justifiable Homicides Involving Black and White 

Individuals (Single Defender/Single Assailant Incidents, 2001-2010),” from Written Statement of William Krouse, 

at 13.

31 John K. Roman, Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary 

Homicide Data, July 2013, https://www.urban.org/sites/default/files/publication/23856/412873-Race-JustifiableHomicide-and-Stand-Your-Ground-Laws.PDF. 

32 Transcript 2 at 25-26.
Commissioners’ Statements 65

Institute, he found that of all justified homicides from 2005-2010 (that were included in the FBI’s 

Uniform Crime Statistics Supplementary Homicide Reports):

Overall, 2.57 percent of homicides in the six-year period were ruled justified (1,365 

out of 53,019). White-on-black homicides were most likely to be ruled justified 

(11.4 percent), and black-on-white homicides were least likely to be ruled justified 

(1.2 percent). Whether a state was an SYG state also affects the likelihood of a 

homicide being ruled justified.33

If you examine shootings that share the salient characteristics of the Martin-Zimmerman shooting, 

the statistics look different. Roman wrote in his report for the Urban Institute that in shootings 

where there is a single victim and a single shooter, they are strangers, both are male, and the 

defendant is older than the assailant, 41.14 percent of white on black homicides are ruled justified 

in non-SYG states, and 44.71 percent of white on black homicides are ruled justified in SYG states. 

When you have the same incident characteristics, except that the assailant is white and the 

defendant is black, 7.69 percent of homicides were determined to be justified in non-SYG states, 

and 9.94 percent in SYG states.34

It is worth noting that according to Roman’s research, the only time a self-defense claim was less 

likely to succeed in a SYG state than a non-SYG state was when there was a black assailant and a 

black victim.35 In fact, a greater percentage of black-on-white homicides were deemed justified in 

SYG states (11.10 percent) than were black-on-black homicides (9.94 percent). This would seem 

to cut against the claim that law enforcement is hopelessly explicitly or implicitly biased against 

blacks and in favor of whites in SYG states.

Furthermore, John Lott pointed out at the Commission briefing that Roman’s analysis actually 

indicates the opposite of what he claimed – SYG states actually have a smaller disparity between 

whether a white-on-black homicide will be found justified rather than a black-on-white homicide. 

Lott testified:

If you look at Table III of his reports, what he has is, he has a column for the rate 

of justifiable homicides for black-on-white, white-on-black, for non-Stand Your 

Ground States, and for Stand Your Ground states. If you look at the coefficients for 

the non-Stand Your Ground states essentially, when a white kills a black he has a 

coefficient of like 41, and the coefficient of 7 for blacks killing whites. So it’s a 

33 John K. Roman, Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary 

Homicide Data, July 2013, at 6, https://www.urban.org/sites/default/files/publication/23856/412873-RaceJustifiable-Homicide-and-Stand-Your-Ground-Laws.PDF.

34 John K. Roman, Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary 

Homicide Data, July 2013, at Table 3, https://www.urban.org/sites/default/files/publication/23856/412873-RaceJustifiable-Homicide-and-Stand-Your-Ground-Laws.PDF.

35 Id.
66 Race Effects of Stand Your Ground Laws

ratio of about 5.4 to 1. So it’s saying whites who kill blacks are 5.4 times more 

likely to be found justified in terms of the homicides than blacks.

But then if you look at the Stand Your Ground states the ratio of the coefficients 

actually falls to 4. So rather than exacerbating it, he simply doesn’t – didn’t read 

his coefficients correctly. 

And so – also when he talks about 10 to 1, his regressions actually show 4 to 1 

difference for Stand Your Ground rather than the 10 to 1 that he was saying. And 

the problem that you have there is that when you bring up the type of things that 

Commissioner – a commissioner earlier asking him about the 3 to 1 differences just 

in terms of whether the person was armed. You pretty much can explain away the 

differences even just for one of the factors that are there. . . . 

So his results actually showed the opposite of what he was claiming. Rather than 

the Stand Your Ground laws exacerbating it, it actually reduces the difference in 

the coefficient between black and white that are there.36[emphasis added]

Lott presented his own research at the briefing using cases from the Tampa Bay Times’ database 

of Florida Stand Your Ground cases. He responded to the Tampa Bay Times’ [remember that Lott 

and others consistently referred to the paper as the “Tampa Bay Tribune,” but the correct name is 

the “Tampa Bay Times”] finding that “67 percent of those who killed a black person faced no 

penalty compared to 57 percent of those who killed a white.”37 Lott wrote:

Just because two people are charged with murder doesn’t mean the two cases are 

identical. In particular, black and white victims are usually killed by their own race. 

The Tribune data shows that seventy-six percent of blacks who were killed in 

cases where Stand Your Ground was invoked as a defense were killed by other 

blacks. Similarly, the vast majority of those who killed whites were white, though 

that isn’t true for Hispanics. 

Again, since most blacks are killed by other blacks, that also means that blacks who 

claim self-defense under the Stand Your Ground law are convicted at a lower rate 

than are whites. About 69 percent of blacks who raised the Stand Your Ground 

defense were not convicted compared to 62 percent for whites. Interestingly, 

Hispanics who raise the Stand Your Ground defense are successful the most often 

– 78 percent of the time. 

If blacks are supposedly being discriminated against because their killers so often 

are not facing any penalty, wouldn’t it also follow that blacks are being 

discriminated in favor of when blacks who claim self-defense under the Stand Your 

36 Transcript 3 at 57-58.

37 John R. Lott, Jr., Written Statement, at 4. In analyzing the Tampa Times data, Lott found that in Stand Your

Ground cases where a black person was killed, 76.3% of the killers were black, 18.4% were white, and 5.3% were 

Hispanic. In Stand Your Ground cases where a white person was killed, 11.9% of the killers were black, 80.6% were 

white, and 7.5% were Hispanic. In Stand Your Ground cases where a Hispanic person was killed, 22.2% of the 

killers were black, 55.6% were white, and 22.2% were Hispanic.
Commissioners’ Statements 67

Ground law are convicted at a lower rate than are whites? If this is indeed a measure 

of discrimination, rather than merely reflecting something different about these 

particular cases, why are conviction rates so low for Hispanics who raise the Stand 

Your Ground defense? The figures used to support claims of racism are cherrypicked from the data.

There were also other important differences across the cases not reflected by the 

simply averages. Using the Tribune data, blacks killed in these Stand Your 

Ground confrontations were 26 percentage points more likely to be armed 

with a gun than whites who were killed. This strongly suggests that their killers 

reasonably believed they had little choice to kill their attackers. By a 42 to 17 

percent margin, the blacks killed were also more often in the process of 

committing a robbery, home invasion, or burglary. Further, it is much more 

likely that there is both a witness and physical evidence around when a white person 

was killed (by a 51 to 38 percent margin). [emphasis added]38 

Stand Your Ground and Criminal Records

Panelist David Labahn stated that individuals with arrest records39 successfully invoke Stand Your 

Ground legislation. As I discussed above, an arrest is not the same as a conviction and should not 

prohibit you from losing important rights. Furthermore, simply because you have engaged in 

criminal activity in the past does not mean you are engaging in criminal activity now. A person 

who has a criminal record may be more likely to live in a poorer area that has higher crime rates, 

and thus be more likely to need to engage in self-defense.

Even if you have a criminal conviction, you do not lose the right to defend your life, even if you 

are generally prohibited from possessing a firearm.40 For example, a felon in possession of a 

firearm (at least in Florida, this seems to be a common offense that bars individuals from invoking

38 John R. Lott, Jr., Written Statement, at 4-5.

39 Transcript 3 at 25 (“A recent study concluded that the majority of defendants shielded by stand your ground laws 

had arrest records prior to the homicide at issue.”).

40 See People v. King, 22 Cal.3d 12, 24 (Cal. 1978).

We conclude, therefore, that the prohibition of section 12021 [forbidding felons from possessing concealable 

firearms] was not intended to affect a felon’s right to use a concealable firearm in self-defense, but was intended 

only to prohibit members of the affected classes from arming themselves with concealable firearms or having such 

weapon s in their custody or control in circumstances other than those in which the right to use deadly force in selfdefense exists or reasonably appears to exist. 

People v. Rhodes, 29 Cal.Rptr.3d 226, 232, 233 (Cal.Ct. App.4th 2005).

[A]lthough Rhodes was a convicted felon, he had the right to defend himself, stand his ground, and use the amount 

of force reasonable under the circumstances. . . . The cumulative effect of these misdeeds [misstatements of law by 

prosecutor and erroneous jury instructions] was to impose upon Rhodes the duty to retreat when there was no such 

duty.
68 Race Effects of Stand Your Ground Laws

Stand Your Ground41), should not be punished for defending his life solely because of the other 

offense.42 The authorities can separately prosecute him for the firearms offenses, if need be.

41 See, e.g., Little v. State, 111 So.3d 214, 216 (Dist.Ct.App.Fla., 2d Dist. 2014); Andujar-Ruiz v. State, 205 So.3d 

803 (Dist.Ct.App.Fla., 2d Dist. 2016); Garrett v. State, 148 So.3d 466 (Dist.Ct.App.Fla, 1st Dist. 2014).

42 Little v. State, 111 So.3d 214, 216 (Dist.Ct.App.Fla., 2d Dist. 2014).

Aaron A. Little seeks certiorari review of the circuit court's order denying his motion to dismiss the criminal charge 

of second-degree murder with a firearm. Little argued that he shot the victim in self-defense and was entitled to 

immunity from criminal prosecution under section 776.032(1), Florida Statutes (2009), which is part of what is 

commonly known as the “Stand Your Ground” law. . . . We agree with Little that his use of deadly force was 

justified under the circumstances. We also reject the State's alternative argument that Little was not entitled to 

immunity under the Stand Your Ground law because he was engaged in an unlawful activity at the time he used the 

deadly force. We therefore grant Little's petition for writ of prohibition.

I. Facts

The incident in question occurred when Little was walking to his girlfriend's house with his friend, Rashad 

Matthews. The two men happened upon Matthews' friend, Terry Lester, who was standing in the driveway of his 

mother's home. Lester was leaning into the driver's door of a vehicle parked in the driveway when Matthews 

approached and engaged Lester in conversation. Little, who was a stranger to Lester, initially waited for Matthews 

by the street.

After a few minutes, Little started walking toward the two men. When Little reached the driver's side of the car, 

Demond Brooks jumped out of the back seat. Little knew Brooks, but the two were not friends. Without warning, 

Brooks pulled two handguns from his waistband, pointed them at Little, and yelled that he was “going to make it 

rain.” Little believed Brooks was threatening to shoot him, so he ran behind Lester and asked Lester to intervene, or 

to “get” Brooks. Lester tried to calm Brooks down to no avail.

Lester's mother, Janet Speed, heard the commotion from inside the house and came to the open front door for a 

moment. Little used the distraction as an opportunity to obtain shelter and ran into the house. Brooks followed Little 

but stopped on the second of the three front porch steps. From there, Brooks held his guns down by his sides and 

yelled through the open door for Little to come outside. Little pressed his back up against the wall, pulled a handgun 

out of his pants pocket, and held it down by his side. He called to Ms. Speed to “get” Brooks.

Ms. Speed had not seen Little arm himself. Ms. Speed was alerted to the gun by her daughter-in-law, Kimberly, who 

was also in the room. Little, who was visibly afraid, tried to explain that he was holding the gun because Brooks was 

threatening to shoot him from outside. Ms. Speed did not want a gun in her house and responded by telling Little to 

leave. But Brooks was still on the porch step yelling for Little to come outside. Little told Ms. Speed, “I ain't going 

out there,” and said something about both men having their “fire.” Ms. Speed called for her son Lester.

Lester then came into the house and ordered Little out. Little begged for Lester to stop Brooks, but Lester offered no 

help. In fact, Lester appeared to think the situation was funny because he had been laughing with Brooks as he 

passed him on his way inside the house.

Seeing no backdoor exit, Little reluctantly exited the house through the front door. Brooks backed up to let Little 

pass, but Brooks still had his guns down by his sides. Little proceeded cautiously, turning sideways to stay facing 

Brooks and keeping his gun hidden behind his back. When Little reached the yard, Brooks walked toward him and 

said something like, “[D]o you know what he did to me?” Little told Brooks to calm down and backed away. Brooks 

did not take action until Little backed into the car parked in the driveway. Then Brooks raised his guns and pointed 

them at Little. Little brought his gun around, closed his eyes, and pulled the trigger several times. Brooks dropped to 

the ground and eventually succumbed to his gunshot wounds. Little fled to his girlfriend's house.
Firearms-Related, Intra- and Inter-Racial H

Involving Black and White Individuals(Single Victim/Single Offender Incidents, 2001-2010)

5,0004,5004,0003,5003,0002,5002,0001,5001,000

500

0

2001 2002 2003 2004 2005 2006 2007 2008 

HomicidesInvolving Blacks and/or Whites Black‐on‐Black

White‐on‐White Black‐on‐White

White‐on‐Black

Source: FBI Supplementary Homicide Reports

Kirsanow S
Firearms-Related, Intra- and Inter-Racial Jus

Homicides Involving Black and White Individ(Single Defender/Single Assailant Incidents, 2001-2010

250200150100

50

0

2001 2002 2003 2004 2005 2006 2007 2008 

Justifiable HomicidesInvolving Blacks and/or Whites Black‐on‐Black

White‐on‐White Black‐on‐White

White‐on‐Black

Source: FBI Supplementary Homicide Reports

Kirsanow S
Stand Your Ground Public Briefing Transcript (Oct. 17, 2014) 71

STAND YOUR GROUND PUBLIC BRIEFING TRANSCRIPT (OCT. 17, 

2014)
1 1

2

3 THE UNITED STATES COMMISSION ON CIVIL RIGHTS

4 BRIEFING ON STAND YOUR GROUND.

5

6

7

8

9 Place: The Rosen Hotel

9700 International Drive

10 Orlando, Florida 32819

9:00 a.m. - 3:30 p.m.

11

12

Date: October 17, 2014

13

14

Reported by:

15

Kathy Wescott, CSR

16

17

18

19

(Volume I, pages 1 through 108, a.m. session,

20 Panel Number 1)

21

22

23

24

25
1 2

2

3 Present:

4 Commissioner Michael Yaki

5 Commissioner Roberta Achtenberg

6 Marlene Sallo

7 Commissioner Marty Castro (Chairman)

8 Commissioner Karen K. Narasaki

9 Commissioner Patricia Timmons-Goodson

10 Commissioner Gail L. Heriot

11

12 Appearing by phone:

13 Commissioner David Kladney

14 Commissioner Peter Kirsanow

15

16 Panel Number 1:

17 Senator Chris Smith

18 Representative Todd Rutherford

19 Mr. Ahmad Nabil Abuznaid

20

21

22

23

24

25
1 3

2 CHAIRMAN CASTRO: I'm calling the

3 meeting to order. I'm Marty Castro, Chair of the

4 U.S. Commission on Civil Rights. And I want to

5 welcome everyone this morning to our briefing on

6 racial disparities and the stand your ground laws.

7 It is currently 9:06 a.m. on

8 October 17, 2014. I am joined today by

9 Commissioners Achtenberg, Commissioner Narasaki,

10 Commissioner Timmons-Goodson, Commissioner Yaki,

11 and Commission Heriot. Commissioner Kladney and

12 Commissioner Kirsanow will join us by phone.

13 The purpose of this briefing is to

14 determine whether there is a possible racial bias

15 in the assertion, investigation, or enforcement of

16 justifiable homicide laws in states with stand

17 your ground provisions.

18 Experts at this briefing will present

19 testimony on the personal impact of the laws,

20 findings from their research, especially those

21 research pieces regarding the racial dimensions of

22 justifiable homicides and elaborate upon actions

23 that are being taken by advocacy groups to

24 alleviate concerns related to stand your ground

25 laws.
1 4

2 Now stand your ground laws, some of us

3 are part of a larger issue. We see what happened

4 here in Florida. Other states obviously have

5 similar situations. We see what's happened in

6 Ferguson. Names like Trayvon Martin, Jordan

7 Davis, these are now part of the national fabric

8 of conversation about race and the impact about

9 race.

10 Whether laws are biased, implicitly

11 biased, explicitly biased. Those sorts of

12 questions must be answered not by anecdote, or

13 example, but by concrete research.

14 And it is our hope that the work that

15 the U.S. Commission on Civil Rights is doing on

16 this topic will present concrete statistical

17 information, much of which is lacking in this area

18 right now. To allow us to critically look at the

19 true impact of these laws.

20 Today we're going to hear from folks

21 from different perspectives and different points

22 of view. Our job here at the U.S. Commission on

23 Civil Rights is to shine our historic light on

24 these issues and separate the wheat from the chaff

25 of what is being said and what is being produced
1 5

2 on these topics, and present to the President and

3 Congress and the people of the United States our

4 opinion based on over 50 years of advocacy and

5 being a watchdog on civil rights as to what we

6 believe to be the impact of these laws on minority

7 individuals and minority communities.

8 I want to thank Commissioner Yaki for

9 his opportunity to bring this forward to us. I

10 will ask him to make a very brief statement and

11 then I will introduce the members of the panel and

12 we'll begin our briefing.

13 Commissioner Yaki.

14 COMMISSIONER YAKI: Thank you very much,

15 Mr. Chair, and thank everyone who is here today.

16 I called for this investigation. And

17 today while it's just a briefing it's part of a

18 broader -- broader discussion and broader analysis

19 by the commission.

20 This investigation is by -- today will

21 help the investigation. It is by no means an end,

22 but just a beginning of the analysis that will be

23 conducted by our staff. I did so because a year

24 and a half -- about two years ago I actually

25 started calling for this investigation, and it
1 6

2 wasn't until last year that the commission had the

3 resources and the personnel in order to start this

4 -- down this path.

5 I did so because I'm troubled by stand

6 your ground laws. I'm troubled by the fact that

7 we have to have discussions about the deaths of

8 African American men like Trayvon Martin and

9 Jordan Davis. I'm troubled by conclusions and

10 statistics showing racial disparity in the

11 research of people like John Roman.

12 I'm troubled by the expansion of a

13 common law doctrine that now allows people not

14 only to defend themselves in their home, but

15 converts it into a "shoot first" anywhere policy.

16 And I'm troubled by the fact that despite its

17 claims homicides seem to increase rather than

18 decrease in states with stand your ground laws.

19 And I'm especially, as a member of the

20 U.S. Commission on Civil Rights, deeply troubled

21 by the fact that here we are in the 21st century

22 and we are here to try to understand and study the

23 implications, extent, and effect of bias,

24 unconscious, implicit bias and its impact on laws

25 like stand your ground. I hope today and in the
1 7

2 days ahead that we will get evidence and hear data

3 and collect information that can help policy

4 makers, lawyers, judges, and others understand

5 better these laws and their impact on our society.

6 And I want to thank again everyone here

7 today. And I want to extend a special thanks to

8 our staff director, Marlene Sallo, for working so

9 diligently and hard on this matter with me. And,

10 again, I appreciate everything that she's done.

11 Thank you very much, Mr. Chair.

12 COMMISSIONER CASTRO: Thank you,

13 Commissioner Yaki.

14 So now on to some housekeeping matters.

15 So today's briefing is going to consist of a

16 number of panels. Our first is going to be made

17 up of -- all total of 16 distinguished speakers.

18 The first panel is going to consist of legislators

19 and advocates.

20 Panel two will consist of statistics

21 behind the stand your ground laws. And a guest

22 advocate speaker that will give us a real life

23 perspective on the consequences of the

24 implementation of stand your ground laws.

25 And ultimately panel three, with
1 8

2 scholars giving us their perspective on this

3 important topic.

4 Now during the briefing each panelist

5 will have eight minutes to speak. After all of

6 the panelists have made their presentations

7 commissioners will then have an opportunity to ask

8 questions of them. There will be an allotted time

9 period for that to occur.

10 As I have in the past I will fairly

11 recognize commissioners who wish to speak. Those

12 commissions who were unable to get here that are

13 on the phone, you'll have to designate -- shout

14 out your name and let me know that you want to

15 speak. Otherwise, the commissioners present just

16 raise your hand and I will keep a list of who will

17 be next.

18 So we also want everyone to adhere

19 strictly to their time allotments so that we all

20 have an opportunity to engage in the conversation

21 on this important topic.

22 You panelists will notice there's a

23 series of warning lights that have been set up.

24 When the light turns from green to yellow that

25 means you've got two minutes remaining. When the
1 9

2 light turns red I ask you to wrap up your

3 statements. And just be mindful of other

4 panelists' times so we don't take away from

5 anyone. I certainly don't want to cutoff anyone

6 mid-sentence.

7 Again, I ask my fellow commissioners to

8 be considerate of the panelists and one another

9 and try to keep our questions and comments

10 concise. I know there will be followups and I

11 will allow that to a point, but we want to have

12 everyone have the opportunity to ask questions.

13 Once we do all this I think that we will

14 have the data that we need. So what I'd like to

15 do is first proceed with the panel that is before

16 us now, our first panel. I will introduce you to

17 the panelists and I will swear you in.

18 Our first panelist this morning is

19 Chris Smith, Florida State Senator representing

20 the 31st State Senate District.

21 Our second panelist is Todd Rutherford,

22 Minority Leader for the South Carolina State

23 House. Representing South Carolina's 71st House

24 District.

25 And let's see. Our third panelist is
1 10

2 Ahmad Nabil Abuznaid a Legal and Policy Director

3 for Dream Defenders.

4 And for the first panel we were to have

5 Lucia McBath, the mother of Jordan Davis.

6 Unfortunately, she won't be able to join us today.

7 She sends her sincere apologies and asks that her

8 previously submitted statement be accepted for the

9 record in lieu of her testimony, which we will do.

10 So I will now ask the panelists to swear

11 and affirm that the information that you're about

12 to provide us as true -- is true and accurate to

13 the best of your knowledge and belief. Is that

14 correct?

15 SENATOR CHRIS SMITH: Yes.

16 REPRESENTATIVE RUTHERFORD: Yes.

17 MR. AHMAD NABIL ABUZNAID: Yes.

18 COMMISSIONER CASTRO: Thank you.

19 Senator Smith, please proceed.

20 SENATOR CHRIS SMITH: Thank you. And I

21 want to first welcome you to the sunshine state of

22 Florida. I appreciate you coming down here and

23 having this very important grownup discussion

24 about stand your ground. And I especially as a

25 legislator who deals with the budget really
1 11

2 appreciate you coming to Florida.

3 My district is the 31st Senate District

4 which is Broward County, which is Fort Lauderdale,

5 about three hours south of here. Which is home of

6 a lot of good shopping so after this feel free to

7 trek down I-95.

8 I'll begin my remarks. In 2005 Florida

9 passed the first stand your ground law becoming in

10 the process the national pioneer for all

11 subsequent tragedies and unintended consequences

12 that have followed. We have seen the law used by

13 aggressors as a license to kill by allowing anyone

14 to escalate minor disputes into a deadly incident.

15 Anyone to provoke a confrontation and then seek

16 immunity under stand your ground, an escape hatch

17 of fear of imminent bodily harm or death. While

18 these provocations can occur anywhere at any time,

19 aside from the most notorious cases, namely, the

20 Trayvon Martin case and the Jordan Davis case.

21 Other less well known cases and

22 incidents have occurred outside of family

23 restaurants, bars, house parties, public parks,

24 and as a result of road rage confrontations.

25 Within weeks of the national uproar over
1 12

2 the killing of Trayvon Martin in 2012 I convened a

3 task force of prosecutors, defense attorneys, law

4 enforcement personnel, and scholars to review the

5 law and make recommendations for legislative

6 changes.

7 My task force issued a report and

8 recommendations in May of 2012. Among the things

9 my task force recommended were education of the

10 public and law enforcement officers on the stand

11 your ground law.

12 Two, creation of a system to track

13 self-defense claims in Florida so we could

14 identify any desperate (phonetic) treatment.

15 Three, allowing police to fully

16 investigate all killings by detaining suspects,

17 even when they claim stand your ground immunity.

18 Four, defining the term "unlawful

19 activity" and clarification of the role of

20 provocation, thus allowing the law exactly when

21 people are aggressors such as -- that they should

22 not -- when people are aggressors they should not

23 be able to hide behind stand your ground after

24 taking a life.

25 The Governor of Florida convened a task
1 13

2 force and they also recommended that the

3 legislature examine the term "unlawful activity"

4 as to give guidance to court's on the proper

5 application of the law with the intent to protect

6 innocent persons.

7 The Governor's task force also agreed

8 with my recommendations to educate law enforcement

9 agencies, prosecutors, and judiciary on

10 self-defense laws and to review the standards

11 regulating neighborhood watch associations.

12 Despite the recommendations by my task

13 force and the governor the legislature only looked

14 at two of the recommendations, removal of immunity

15 from injuries and deaths of an innocent third

16 party. And review of 10/20 life, minimum

17 mandatory in a narrow scope of cases involving

18 stand your ground.

19 At this time the state still refuses to

20 compile a comprehensive database of cases.

21 Luckily, the Tampa Bay Times, the Urban Institute,

22 and the American Bar Association and others have,

23 and data shows disturbing disparity involving the

24 impact of this law which remains bewildering to

25 law enforcement, confusing to prosecutors, and
1 14

2 misapplied by courts.

3 I noticed on your agenda that you have

4 persons discussing the statistics and so I will

5 not go through those statistics.

6 Just to recap that the overwhelming

7 statistics show that it's the race of the victim

8 which is most dispositive of the outcome of the

9 cases. When the victim is black there are huge

10 statistics showing that you're more likely to

11 proceed with a stand your ground defense.

12 This year I filed a bill, a bipartisan

13 bill, which did four of the things in which I

14 discussed. It clarified the definition of

15 aggressor, and made clear that people who start

16 fights and chase victims down cannot later claim

17 immunity or self-defense under stand your ground.

18 It provided guidance to judges and

19 jury's about the legislative intent of the law.

20 And it placed guidelines on neighborhood watch

21 programs and allowed innocent bystanders to file

22 lawsuits to recover injuries.

23 Even though the bill passed two

24 committees it was later blocked from the Senate

25 floor.
1 15

2 Still I provided the legislature with

3 yet another opportunity to right the wrongs of

4 this law. I proposed a simple, common sense

5 amendment to a bill being considered on the floor

6 of the Senate. My amendment would have specified

7 the how, when, and by whom of using the statutes'

8 defense.

9 It would have defined aggressor.

10 Stopped those who start and bring themselves to a

11 deadly fight from hiding behind the law’s

12 protections. It would have simply added a

13 bipartisan statement of legislative intent which

14 would finally give notice to the public and

15 guidance to judges and juries about what the

16 legislature meant to achieve with stand your

17 ground statute.

18 My amendment would have clarified that

19 justification and immunity protections in the

20 statute were not meant to show aggressors,

21 vigilantes, and others -- and condoned other acts

22 of revenge. Yet, the Senate rejected these

23 concepts. My amendment was rejected along party

24 line votes with the majority party prevailing.

25 Over and over some legislators have
1 16

2 disingenuously said that this -- that that tragic

3 outcome was not the intent when we passed stand

4 your ground. But that is cold comfort to anyone

5 who has lost a family member to a senseless

6 violence inspired in part by perpetrators belief

7 that this law gives them absolute right to take a

8 life and provide them immunity after doing it.

9 Adding insult to injury, when given the

10 opportunity to clarify, clearly outline and

11 statute, what exactly they meant when they passed

12 the statute, some of my colleagues turned their

13 backs on the opportunity, and in doing so turned

14 their backs on many youth who tend to be victims

15 of this egregious abuse of the immunities and

16 defenses contained in the current law.

17 Even the -- notably, the one thing that

18 the legislature did do this session was to expand

19 stand your ground. Cynically invoking the case of

20 Marissa Alexander to justify broadening the flawed

21 law. Purportedly the purpose of the new expanded

22 language was to help protect a person who fires a

23 warning shot in circumstances where they would be

24 free to use stand your ground to injure or kill

25 someone. It provides that such a person cannot be
1 17

2 prosecuted.

3 However, the new language goes further

4 and does much more. It allows stand your ground

5 claimants to have their records expunged if their

6 charges are later dropped or they prevail in

7 court. This will make it virtually impossible for

8 the public to effectively track these incidents

9 and thereby use the data to demonstrate desperate

10 (phonetic) impact of the law.

11 COMMISSIONER CASTRO: Thank you,

12 Senator, appreciate your presentation.

13 Representative Rutherford, you can have

14 the floor.

15 REPRESENTATIVE RUTHERFORD: Thank you

16 and good morning. And thank you for inviting me.

17 And I apologize that I seem to have lost my tie in

18 transit, didn't realize it until this morning when

19 I was coming over.

20 And I do want to state first and

21 foremost that while I am one of the legislator's

22 that voted for the stand your ground law in South

23 Carolina and continue to be one of its proponents

24 I am interested in the conversation and the dialog

25 this morning as to whether any changes can be made
1 18

2 to make it any better.

3 In South Carolina I do believe that it

4 will remain the law of the land, that it is not

5 going anywhere any time soon. And as a lawyer I

6 have used stand your ground successfully in one

7 case and have another hearing coming up in

8 November. And recently used it this week in

9 another case. And have not seen the data to

10 suggest that there's a disparate impact on African

11 Americans, although I am very interested in

12 Senator Smith's data and how we can look at that

13 and make sure that that is not going on.

14 I will not remain a proponent of a law

15 that clearly has a disparate impact on African

16 Americans, although it has not been shown to me

17 that that is the case currently in South Carolina.

18 The last case that I tried was the State

19 of South Carolina versus Shannon Scott. It deals

20 with one of the instances that Senator Smith

21 brought about. My client was charged with -- when

22 he was at home he received a phone call from his

23 daughter who was being chased home from a

24 nightclub by some female thugs. They chased her

25 all the way to her house. He had his daughter
1 19

2 pull in the backyard. When he did the female

3 thugs out front fired a warning shot. They turned

4 around at the end of the street, cut off their

5 headlights and as they were approaching his house,

6 again he requested that they please stop. He

7 fired a shot. And that shot hit a second car that

8 was following the female thugs and killed a 15

9 year old individual in that car.

10 My client was charged with murder for

11 the death of the 15 year old child. It was a

12 senseless tragedy that never should have happened.

13 But one that could have been prevented, (A) by the

14 female thugs never following his daughter home.

15 And (B) by the police arresting the female thugs

16 and charging them with felony murder as would be

17 allowed in South Carolina. No clue why that did

18 not happen and on the stand the police, when

19 confronted with why they did not arrest them said,

20 "I don't know."

21 And so an innocent person shot, clearly

22 the wrong person shot. But my client Shannon

23 Scott simply defending his home, his castle, and

24 his family who were cowering on the floor in the

25 kitchen trying not to get shot.
1 20

2 The one this week was an individual who

3 was at home and some people tried to do a home

4 invasion on his house. Beating on his door with a

5 sledgehammer. They beat on it three different

6 times as confirmed by witnesses across the street.

7 He opened the door, did not realize that someone

8 had tried to get in until he saw the marks on the

9 door. He then went to leave his apartment. In

10 doing so he was confronted by an individual with a

11 gun. The other gentleman with the sledgehammer,

12 who he thought had a gun, the individual pointed a

13 gun at him, my client exited his vehicle, fired

14 several shots, one of whom hit the gentleman with

15 the sledgehammer. He was not prosecuted. Is

16 going to do a statement to the police and will

17 receive immunity under the stand your ground law

18 for that case.

19 The next one in November is an 18 year

20 old -- ah, he's a 17 year old child at the time,

21 was at a restaurant, fast food place, after a

22 basketball game. He -- it was a -- because it was

23 a basketball game with rival teams there was --

24 there were several words being thrown back and

25 forth in the restaurant. My client leaves the
1 21

2 restaurant, goes and gets in his vehicle and as he

3 is leaving the restaurant is approached by another

4 kid -- because these are 17 year olds -- who comes

5 up to his window, and the allegation is that the

6 victim in this case, or the person who was

7 stabbed, reached in the window and tried to grab

8 my client. And certainly put him in fear for his

9 life. My client reached out the window with his

10 knife -- the knife that his grandfather had given

11 him -- and he stabbed him one time, cut off the

12 bottom of his heart, and the victim died within

13 the next five minutes.

14 Tragic cases in every single instance.

15 But, cases that in South Carolina would have left

16 an African American male charged with a murder

17 charge that they would probably not be able to

18 defend financially. That would have left them in

19 jail in South Carolina typically for a year, two

20 years before they would have ever gone to trial.

21 And having the ability to use the self-defense

22 case law, South Carolina does not have a

23 self-defense statute prior to stand your ground so

24 you would have had to have relied on case law,

25 which suggests that you must retreat. That you
1 22

2 cannot elevate the use of force. Which in most

3 instances is troubling in and of itself, but

4 certainly in these cases, it would have led to the

5 most recent client, the child -- the basketball

6 game, because he used a knife on someone who was

7 unarmed, not able to avail himself of the

8 self-defense law.

9 It has been my opinion since I saw the

10 -- the proposal for stand your ground that the old

11 law, the old case law as it related to

12 self-defense was outdated. That people should not

13 have to live in fear. That you should not have to

14 measure your use of force by that which is being

15 used against you. That it was archaic and that it

16 continues to be.

17 I am troubled by the fact that someone

18 could act as a vigilante. But I do believe that

19 the courts, at least in South Carolina thus far

20 have rooted those cases out. Am troubled by the

21 fact that someone could be a wrongdoer and claim

22 that he was lawfully someplace where he should not

23 have been.

24 That case came up in South Carolina. A

25 gentleman that was in the middle of a home
1 23

2 invasion tried to claim that he was forced to do

3 the home invasion. And when he shot the homeowner

4 that he deserved immunity under stand your ground.

5 The judge laughed at it. Sent it up to the

6 Supreme Court and the Supreme Court tossed it out.

7 I am told by a number of lawyers who

8 have not given me permission to use their clients

9 names or their fact scenarios, but that there are

10 several other cases pending in South Carolina with

11 African American defendants who shot white

12 individuals who were the wrongdoers who are

13 seeking to claim stand your ground as an immunity

14 defense, but have not been able to do so because

15 they simply cannot get a hearing. It is -- the

16 evidence that I have seen in South Carolina, the

17 anecdotal evidence has been that it is more used

18 by African American defendants than it is by white

19 defendants.

20 I can tell you that I watch the news as

21 everyone else and I am concerned about the Trayvon

22 Martin case, about all of the cases in Florida

23 that seem to be going in the wrong direction. But

24 I don't know that I've seen one where the stand

25 your ground law was used successfully and used in
1 24

2 an immunity hearing in such a way as to create a

3 disparate impact.

4 I welcome that data. And as you all,

5 once I get that data if there is a change that can

6 be made in the law I'd seek to do it.

7 Thank you.

8 COMMISSIONER CASTRO: Thank you,

9 Representative Rutherford.

10 Next we'd like Mr. Abuznaid to present.

11 MR. AHMAD NABIL ABUZNAID: Thank you.

12 Thank you to the commission for convening this

13 initiative. We are extremely excited for the

14 future results.

15 I'm here representing the Dream

16 Defenders, a youth based human rights organization

17 in Miami, Florida. Our organization was created

18 in response to the tragic killing of Trayvon

19 Martin. A national and international dialogue has

20 been brewing around the harmfulness of stand your

21 ground laws, also known by many as "shoot first"

22 laws, and their implications for the right to

23 life, non-discrimination and equality before the

24 law. These stand your ground laws have, in a

25 sense, legalized the devaluing and dehumanizing of
1 25

2 minority lives in a very real way.

3 We have recently heard from the members

4 of the United Nations Human Rights Committee that

5 stand your ground laws are incompatible with the

6 right to life. We have also heard great concern

7 from the Inter-American Commission on human rights

8 regarding many of these tragedies. It is

9 imperative that the federal government ensures

10 that state and local governments do not promulgate

11 laws that violate rights as fundamental as the

12 right to life and equality before the law.

13 Stand your ground laws amount to state

14 complicity in the perpetuation of violence by its

15 citizens. Furthermore, our society has a long

16 history of racial discrimination and a system that

17 to put it mildly has never been kind to its black

18 and brown minorities. Since we understand that

19 the system itself has had to be constantly revised

20 to deal with its inadequacies related to

21 minorities it should come as no shock that a law

22 allowing vigilantes to use fatal force on the

23 streets would disproportionately affect

24 minorities. Obvious history and notions aside,

25 research has shown that stand your ground laws are
1 26

2 dangerous in terms of increasing levels of

3 homicide and are discriminatory in their

4 application as to race and gender.

5 Statistics based on a database compiled

6 by the Tampa Bay Times of SYG cases in Florida

7 since the passage of the law show that a defendant

8 who killed a white person was more likely to be

9 convicted of a crime than a defendant who killed a

10 black person. White-on-black homicides are 250

11 percent more likely to be found justified than

12 white-on-white homicides in stand your ground

13 states. This disparity increases to 354 percent

14 in stand your ground states. Moreover, the Urban

15 Institutes Justice Policy Center conducted a study

16 using the FBI's Supplementary Homicide Report for

17 2005 until 2009 and determined that less than 2

18 percent of homicides are eventually ruled to have

19 been committed in self-defense, that number

20 contains a significant split between stand your

21 ground and non-stand your ground states.

22 Women have also been disproportionately

23 impacted by stand your ground, especially those

24 dealing with domestic violence. Florida has been

25 home to the tragic handling of Marissa Alexander's
1 27

2 case. In a recent analysis of FBI homicide data

3 prepared by the Urban Institute comparing stand

4 your ground and non-stand your ground states and

5 examining the use of stand your ground laws in

6 cases involving women defendants, 13.5 percent of

7 cases where a white woman killed a black man were

8 found justified, whereas in contrast only 2.9

9 percent of cases where a black woman killed a

10 white man were found justified. Again, this

11 highlights the disproportionate -- thank you --

12 disproportionate role that race plays in

13 justifiable homicides and how that is overlaid in

14 cases involving women defendants.

15 The data also revealed that such laws

16 introduce bias against black victims and in favor

17 of white defendants. In cases where the defendant

18 was black and the victim was white, there was

19 little difference between the stand your ground

20 states and other states. However, when the

21 defendant was white and the victim was black 16.85

22 percent of the homicides were ruled justified in

23 stand your ground states and only 9.15 percent in

24 non-stand your ground states.

25 Even worse, blanket immunity and broad
1 28

2 discretion to law enforcement offered by

3 Florida-type stand your ground laws infringe on

4 victims access to courts and their right to a

5 remedy. The more recent case involving the murder

6 of Jordan Davis and the jury's deadlock on his

7 murder -- his murder count exposed just how much

8 confusion stand your law -- stand your ground have

9 introduced into the criminal process.

10 It took a second trial and jury to

11 convict a man of a murder that everyone knew he

12 committed. Why did the jury find trouble with the

13 decision? Stand your ground laws of course,

14 because they allow for subjective biases, implicit

15 biases to guide decision making that could later

16 be fortified by law. Sadly, most victims and or

17 their families will never receive justice and

18 worst off they will have to live without their

19 loved ones for the rest of their lives all because

20 someone thought they looked suspicious while

21 walking through their father's neighborhood, or

22 they disturbed someone's movie experience while

23 texting the babysitter. As you may know, some of

24 the most high profile tragedies we have witnessed

25 in stand your ground have occurred here in
1 29

2 Florida. We have been the first state to enact

3 such a law and Florida should be the first state

4 to repeal such a law. The federal government must

5 support such a repeal. The federal government

6 must step in to condition funding to states based

7 on its ability to guarantee equal protection of

8 all of its citizens and elimination of laws that

9 hinder their ability to fulfill that duty.

10 On the ground here in Florida groups

11 like the Dream Defenders, Community Justice

12 Project, Power You, and others have been rallying

13 around communities concerned about that very

14 protection of our lives, which stand your ground

15 stands in the way of.

16 Unfortunately, the people's call for a

17 repeal has been ignored by the Florida

18 legislature. Not only that, but more legislation

19 being sent down the pipelines to gun us down,

20 including a so-called "warning shot" bill whose

21 advocates propelled it forward under the guise of

22 support for Marissa Alexander. But these

23 lawmakers have shown that they don't care about

24 Marissa. They don't care about Trayvon, Jordan or

25 our communities. Florida and other states are
1 30

2 currently looking at laws that would arm

3 schoolteachers with guns, and I would postulate

4 that it would not be long before one of our

5 teachers stands their ground against one of our

6 kids. We are not safe in our streets, our

7 neighborhoods, gas stations, movie theaters, and

8 soon to be schools.

9 Thank you.

10 COMMISSIONER CASTRO: Thank you. At

11 this point in time I would like to encourage

12 commissioners to begin to ask questions. I'll

13 cede the floor to Commissioner Yaki to begin. And

14 just identify for me then we'll keep a list.

15 COMMISSIONER YAKI: Thank you very much,

16 Mr. Chair. And this goes to all three panelists.

17 I was struck by the notion of due process, and I

18 think for, especially Mr. Rutherford who's a

19 lawyer as well. The issue of due process I think

20 is very important in stand your ground from a

21 number of different factors. But especially from

22 the standpoint of the person who may be the victim

23 of a stand your ground defense. That person may

24 be injured, that person may be dead, and not being

25 able to present his or her side of the story
1 31

2 you've essentially ceded the authority to be

3 judge, jury, and for lack of a better word,

4 executioner to the person asserting that. And I

5 guess, the question that I'm asking is, if you

6 were confronted with a statistic, a scientific

7 fact, that the research shows that people are more

8 likely to act in a certain way based on

9 unconscious racial stereotypes they may have

10 within them. I mean, I'm not talking about

11 somebody who says, "I'm a racist I hate, you know,

12 blankity, blank, blank, or blank, blank." I'm

13 talking about the studies that show that if you

14 give a test to people there's a disparity in how

15 people judge people based on what they look like.

16 It doesn't matter -- it doesn't matter if they

17 claim themselves to be racist or not. But the

18 most current example's the fact that if you show

19 -- if you talk about voter I.D. law to a white

20 voter, but if you accompany that image with that

21 of the image of a black person at the voting poll

22 support for a voter I.D. law shoots up well beyond

23 the statistical range. By the same token when you

24 have these tests that test for implicit --

25 implicit bias a black person is much more likely
1 32

2 to be shot by someone much more than a white

3 person in these tests based on the fact that it's

4 unconscious bias in the system.

5 So I'm just asking when you have a law

6 like stand your ground which has in it essentially

7 a, for lack of a better word, a trigger component

8 in it to say I have to make a decision right here

9 and right now, what am I going to do. And if

10 there's a built in bias against finding for not

11 shooting against a white person and for shooting

12 against a black person how do you reconcile that

13 as a legislator and a policy maker?

14 REPRESENTATIVE RUTHERFORD:

15 Commissioner, thank you for that question. And I

16 can tell you that as a black man growing up -- who

17 grew up in South Carolina I am well aware of

18 implicit bias. And as the lawyer for the

19 gentleman that, most recently in South Carolina,

20 Levar Jones, who was shot by the trooper while

21 simply reaching for his wallet. A trooper who

22 I've known for 10 years. I can tell you that I

23 understand also how implicit bias comes into play.

24 In that particular case Mr. Jones was

25 requested by the trooper to get his I.D., he
1 33

2 patted his back pocket, not finding it there he

3 turned to go into the car and Trooper Groubert of

4 the South Carolina Highway Patrol shot at him four

5 times hitting him once in the hip.

6 The most troubling part was Trooper

7 Groubert's statement afterwards where he defined

8 or tried to define Mr. Jones as being an

9 aggressor. That he aggressively went into his

10 car. That he aggressively went into his case.

11 That he aggressively approached him. That he

12 aggressively -- none of which was indicated on the

13 video, but all of which, absent the video would

14 have been enough to clear Trooper Groubert.

15 Troubling because I still see members of

16 the South Carolina Highway Patrol when I go to

17 court who talk about race and that Trooper

18 Groubert is not a racist. And they missed the

19 point that he would not have done that if it were

20 not a black male, who looked unlike Trooper

21 Groubert. Who did something that Trooper

22 Groubert, in his mind, may have believed to be

23 aggressive. Because he was simply following his

24 commands.

25 I, like, Attorney General Holder was
1 34

2 walking in Georgetown when I was in college and a

3 cop walked up to me and placed his baton in my

4 chest and told me to cross the street. I said,

5 "Why?" And he hit me again with the baton and

6 told me to cross the street. And I crossed the

7 street. This was in 1989, this is not the '60s.

8 I am well aware of the bias that goes

9 on, but I also see the bias in the judicial

10 system. I've listened to the statistics that are

11 given and well aware that a white defendant in a

12 stand your ground case may have a better ability

13 to hire a lawyer to assert his stand your ground

14 rights than an African American defendant, that as

15 my client this week with the stand your ground

16 hearing he was able financially to bring me to the

17 scene to talk to law enforcement at the scene to

18 detail for them how this happened. And to mention

19 stand your ground to law enforcement before an

20 arrest was ever made. And I know that implicit

21 bias and racism run rampant throughout the

22 judicial system, especially in South Carolina.

23 It cannot be taken out of the system in

24 one fell swoop. And to suggest that by myself or

25 any other proponent of stand your ground is simply
1 35

2 ridiculous. I would be curious to know in --

3 within the statistics how much racism as a whole

4 played into the impact in the end. And that means

5 that the law enforcement officer didn't care that

6 stand your ground laws existed. There was a black

7 person with a gun and a dead white person and he

8 was simply going to arrest them anyway and ignore

9 stand your ground. Which I have had happen as

10 well. Stand your ground, the way that I intended

11 when I voted for it, the way that I stand behind

12 it as a proponent is meant so that people do not

13 have to live in fear. That you don't have to walk

14 down the street with your children and someone

15 intends you harm and you would have to retreat

16 back to the furthest place. You could not elevate

17 force. You could not do any of those things,

18 which to me negate common sense.

19 Now in saying that about common sense I

20 again use common sense and apply the fact that

21 racism is rampant in our system and I don't know

22 how to take it out. Implicit bias is rampant in

23 our system and I don't know how to take it out.

24 But in a situation where an individual

25 is using the law and the law as it is currently
1 36

2 written in my case is, African Americans in some

3 cases, wrongfully used by white Americans, but

4 simply using the law as it is written judges are

5 supposed to determine without the implicit bias,

6 without the built in racisms that are in the

7 system, are supposed to determine that someone is

8 immune from prosecution. They are supposed to be

9 the ones that determine reasonableness. If

10 they're not doing their jobs in South Carolina we

11 would look to remove them. But I don't know how

12 to take that out of the system without taking out

13 the ability of other persons to defend themselves.

14 COMMISSIONER CASTRO: Senator Smith.

15 SENATOR SMITH: If I can -- two points.

16 When you talked about due process, looking at the

17 Florida law, I haven't looked at the South

18 Carolina law, due process also involves the

19 officer on the scene. The Florida law is so

20 ambiguous that it's not a judge making the

21 determination it's an officer on the scene,

22 because the way the law's written it says,

23 “person cannot be arrested." And in the arrest

24 definition it says, "detained." So the Florida

25 law is so ambiguous that an officer coming up on a
1 37

2 scene in a park with a dead person and a person

3 holding a gun that says, "I'm invoking stand your

4 ground," realistically that officer cannot detain

5 that person, thus do a full investigation. We saw

6 it play out in the Trayvon Martin case where the

7 officers were confused as to whether we can even

8 detain Mr. Zimmerman.

9 And so when you talk about due process

10 that is a major problem in Florida. We're not

11 even getting to judges, we're not getting to

12 jury's. Officers on the scene are told within the

13 law, that we've tried to change, they cannot

14 arrest. An arrest is defined as "detaining" also.

15 And secondly I noticed in all of the

16 paperwork and I just heard, one of my pet peeves

17 when discussing stand your ground is when anyone

18 mentioned "retreat" today, remember Florida law

19 and I'm unsure of other laws, always had a word

20 that everyone neglects, it said, "safely retreat."

21 Prior to 2005 we had self-defense in

22 Florida that's often ignored. The Florida law has

23 always been, you had a duty to safely retreat.

24 There wasn't a "turn and run" portion of the

25 Florida law. It always had "safely retreat,"
1 38

2 which is ignored. So please, as people discuss

3 the Florida law today keep that in mind, prior to

4 2005 it had the words "safely retreat." It was

5 never a concern of you having to run away from

6 someone attacking you in public.

7 MR. AHMAD NABIL ABUZNAID: If I may add,

8 I think that Senator Smith definitely contributed

9 a couple of very important points, but I also

10 wanted to add that while it's important that

11 people shouldn't have to live in fear, due to

12 stand your ground others have to live in fear now.

13 And also, looking at fear and breaking

14 down fear and finding that a lot of times the fear

15 is unfounded with -- Michael Dunn it was

16 because hip hop music was blaring from the car.

17 And Jordan Davis and his friends seemed to be like

18 thugs to Michael Dunn. And, you know, to George

19 Zimmerman, Trayvon Martin seemed suspicious

20 because he had an implicit fear of black men in

21 hoodies.

22 And so I think that people should not

23 have to live in fear, however we should navigate

24 that fear a little bit deeper and figure out where

25 it comes from. You know, the fact is that if
1 39

2 we're going allow for, you know, vigilantes to not

3 be afraid then those of us minorities who are

4 often viewed as threats by society might start

5 being very afraid of walking around our

6 neighborhoods.

7 COMMISSIONER CASTRO: Before I give the

8 floor to Commissioner Narasaki I actually have a

9 question. Well, we really have been talking about

10 this issue and it is talked about in a black/white

11 binary for the most part. Is there anything each

12 of you might be able to shed light on in terms of

13 the impact on Latino's when the stand your ground

14 laws are used?

15 SENATOR SMITH: If I can, Mr. Chair.

16 It's -- in part of my introduction I talked about

17 the lack of statistics. We can only go by what's

18 been reported in say the St. Pete Times and those

19 others. That's part of the problem, we don't keep

20 the actual statistics about black, white, and

21 Latino. A lot of times when you're looking at it

22 you can only go by if it was said that "this was a

23 black male," or it doesn't say, "this was a

24 Hispanic male." And so it's hard to really give

25 you a definitive answer and that was part of the
1 40

2 concern that we have in Florida is actually

3 keeping statistics because part of what we

4 proposed is that if an officer comes up on the

5 scene in Hialeah and it's involving a Latino and

6 someone else and that officer determines that it's

7 a -- this is a stand your ground case, they could

8 go home. We wanted to make that officer keep

9 actual records that stand your ground, victim,

10 aggressor and perpetrator or however, so that we

11 can -- so that you can come back in 2 or 3 years

12 and discuss that.

13 So as you look at these laws please look

14 at -- it's hard to really answer your question

15 without anecdotally looking at facts because in a

16 lot of these states we don't require officers or

17 judges or prosecutors to keep actual statistics

18 that you can look at empirically in a year or two

19 to determine that.

20 MR. AHMAD NABIL ABUZNAID: I would also

21 like to add that often times, you know, who's

22 categorized as white, Latino, Hispanic, Arab,

23 Muslim, has a great weight in factors.

24 If you look at the Department of

25 Corrections, you'll look down at the list of
1 41

2 inmates, you'll see all types of Muhammad, Ahmad

3 all that and it says "white." So I think

4 sometimes, you know, the way people are labeled

5 has a great deal with our ability to keep these

6 statistics.

7 REPRESENTATIVE RUTHERFORD: I've not

8 seen that data in South Carolina and certainly

9 would be interested in looking at making judges

10 and law enforcement officers keep that data to see

11 whether there is a disparate impact on Hispanic

12 males as a class.

13 COMMISSIONER CASTRO: Thank you.

14 Commissioner Narasaki.

15 COMMISSIONER NARASAKI: Thank you,

16 Mr. Chair. I want to thank Minority Leader

17 Rutherford for sharing the stories of his clients.

18 It shows how tragic all of these situations are.

19 I have two questions though. One is,

20 does South Carolina law also include like Florida

21 immunity from civil liability? And if so, what

22 should the rights of the family who's lost a loved

23 one who was an innocent bystander in that

24 situation if there is immunity from civil

25 liability because there's more than one victim in
1 42

2 that case?

3 And the second is, it sounds like you do

4 support data collection. Would you support the

5 federal government tying funding for federal

6 criminal justice funding to requiring states to

7 set up sufficient reporting systems?

8 REPRESENTATIVE RUTHERFORD: I'll answer

9 the second question first and say, absolutely.

10 The collection of data is essential to the

11 understanding of any law and its impact. And in

12 these cases especially so because, like I said, in

13 South Carolina I have not seen what I've seen in

14 Florida. I could not stand here as a lawyer, and

15 a proponent of justice, and look at what goes on

16 in Florida and act like it's okay.

17 The first question is and -- now I'm

18 losing the first question --

19 COMMISSIONER NARASAKI: Civil liability.

20 REPRESENTATIVE RUTHERFORD: Right, yes.

21 South Carolina -- the stand your ground laws came

22 out of the conservative group that sent the law to

23 South Carolina. We looked at it, we passed it.

24 It mirrors Florida's law. In fact, our case law

25 in South Carolina initially came from Florida as
1 43

2 the Supreme Court looked at how to deal with stand

3 your ground cases. It not only offered civil

4 liability -- I'm sorry, civil immunity, it also

5 allows for the return of attorney fees if someone

6 is sued after they are found immune from

7 prosecution under a stand your ground case.

8 As to the victims and what the victims

9 can do, the problem gets to if you have a

10 situation where someone has truly availed

11 themselves of the stand your ground law, which is

12 difficult to determine. And I say that because if

13 a law enforcement officer comes out to the scene

14 and believes that an individual used self-defense,

15 that law enforcement officer's typically an

16 investigator at that level making that

17 determination, not just a line officer, but

18 somebody that has, hopefully, years of experience.

19 That person is determining that the

20 individual, the perpetrator in this case because

21 there's a shooting or a stabbing or whatever the

22 -- the -- it's the person that took the life. So

23 I don't want to call them the victim, but the law

24 enforcement officer may consider them to be the

25 victim.
1 44

2 That he is determining that they didn't

3 do anything wrong or that they simply acted in

4 self-defense. Your stand your ground is somewhat

5 of an articulation of self-defense.

6 In doing so stand your ground says they

7 are not to be detained, they are not to be

8 arrested. Which some people take -- well, they're

9 not investigated. I disagree. I think that an

10 investigator should, at least, in South Carolina

11 an investigator would investigate a murder case

12 not just a line officer.

13 That investigator determines that this

14 person used self-defense, that they can articulate

15 that they had a lawful right to be where they

16 were, that they had a reasonable fear for their

17 life, and that they acted on that fear and that

18 belief. The investigator determines that they are

19 clear and he's not going to detain or arrest them.

20 Which, under self-defense he should not have done

21 anyway. But, South Carolina, as I stated before

22 had no self-defense law it was based on case law.

23 So in order for an individual to be cleared in

24 South Carolina they would have to have been

25 charged with murder or charged with whatever the
1 45

2 offense was --

3 COMMISSIONER NARASAKI: Yeah, I'm

4 actually, though, I'm not focused on the criminal

5 process I think it's -- I'm focused on the civil

6 liability, which as you well know is a different

7 standard. And the question here is, I'm not

8 focusing on whether the person who felt fear, what

9 he did versus the person who was causing the fear.

10 I'm talking about the innocent bystanders who had

11 nothing to do with either side of the equation,

12 who nonetheless lost their lives. So what is the

13 recompense for them?

14 REPRESENTATIVE RUTHERFORD: The

15 recompense --

16 COMMISSIONER NARASAKI: And are you

17 concerned that this stand your ground law could in

18 fact create a huge public safety issue because now

19 you're not talking about someone who's close to

20 their home, but you're talking about someone who

21 could be in a crowd wildly shooting. Is that

22 something that you feel comfortable with, and if

23 there's no civil liability do you feel like there

24 might be a tendency for more of that to happen?

25 REPRESENTATIVE RUTHERFORD: No, ma'am.
1 46

2 And the reason why I say that, where I was going

3 was, because on a lot of these cases those where

4 no one is arrested or detained there's not going

5 to be enough information out there for a civil

6 case.

7 But nine times out of ten, and I would

8 venture to say 99 times out of a 100 for innocent

9 victims, for victims in these cases, there's not

10 going to be any recompense on a civil basis

11 anyway. Rarely could you find insurance to cover

12 a -- someone that was involved in a stand your

13 ground case. And for the innocent victim --

14 there's a perfect case on that in South Carolina,

15 an individual who is a convicted felon was in an

16 entertainment district, another individual walked

17 up and pulled a weapon, clear on video. The

18 second individual pulled his gun, shot at the guy

19 that was pulling the gun and hit and paralyzed a

20 University of South Carolina student. The shooter

21 in that case would have been able to avail himself

22 of the stand your ground law because it was clear

23 on video that he was reacting to someone else

24 pulling a gun.

25 He was a convicted felon. He did not
1 47

2 have a right to possess a firearm and the federal

3 government gave him 23 years in prison.

4 And so that's how they dealt with that

5 case. But would he have -- if he had shot, as he

6 did, and paralyzed someone would they be able to

7 sue him, he wouldn't have any assets for them to

8 be able to sue him anyway --

9 COMMISSIONER NARASAKI: Yes, but what

10 we're talking about in your case, your client had

11 a house.

12 REPRESENTATIVE RUTHERFORD: Right. So

13 -- well, he rented the house and so there was no

14 insurance.

15 COMMISSIONER NARASAKI: Well, I think,

16 you know, the issue about whether they would have

17 actually had money or not is not the question that

18 I'm asking. The question is, should there be some

19 kind of recognition in the law that something

20 happen to someone who is an innocent bystander?

21 REPRESENTATIVE RUTHERFORD: Thank you.

22 And, yes, to answer that question succinctly, an

23 innocent bystander who is shot can always sue,

24 whether they could ever collect is a different

25 story. Even under this they could sue someone
1 48

2 that was cleared because -- well, when you say

3 "innocent" it -- it gets dicey. And the short

4 answer is, "I don't know."

5 COMMISSIONER CASTRO: Ah, Representative

6 -- Senator --

7 SENATOR SMITH: If I can, I think you

8 would -- the Florida law clearly says immunity

9 even from civil liability. So I guess in your

10 scenario -- or even in your scenario if the person

11 negligently is defending themselves and then just

12 sprays the room or something that in Florida even

13 though they were negligent and just, you know,

14 spraying a room they're immune from civil

15 liability even though they were highly negligent

16 as long as they claim stand your ground. And I

17 think that is a concern. I don't know if your

18 statute is that specific.

19 REPRESENTATIVE RUTHERFORD: The statute

20 is that specific but I think -- I don't think you

21 can negligently spray a room. I think if you're

22 spraying a room you're not going to be cleared --

23 you should not be cleared under the statute by

24 stand your ground. That's not defending yourself.

25 That's negligently spraying a room.
1 49

2 And there's a difference -- so if -- if

3 someone can show me the case where someone is

4 clearly defending themselves and found immune from

5 prosecution by -- under stand your ground, and

6 should be sued, I'd love to look at it. But you

7 can't negligently spray a room and claim stand

8 your ground, that's not the same thing --

9 SENATOR SMITH: There is a Miami case in

10 which it happened, a drive-by shooting and a 3

11 year old sitting on her porch, the young man was

12 defending himself under stand your ground, and

13 when he shot at the guys shooting at him he hit a

14 3 year old sitting on her porch. He's immune from

15 civil liability, we're not talking about the

16 criminal case, we're talking about civil

17 liabilities. So her family could not sue that

18 perpetrator even though he's maybe judgment-proof

19 because he's broke there still is a civil immunity

20 from going after that person who shot.

21 REPRESENTATIVE RUTHERFORD: But as

22 tragic as it is that 3 year olds parents should

23 not be suing him they should be suing the people

24 in the car that were shooting at him. That's what

25 stand your ground says. And to take that to its
1 50

2 logical conclusion --

3 SENATOR SMITH: That's what we're

4 talking about --

5 REPRESENTATIVE RUTHERFORD: -- the

6 suggestion is that the individual that was being

7 shot at should, what, get shot? Should not be

8 able to defend themselves? The civil liability

9 for that 3 year old, for those parents of that 3

10 year old, goes against the initial people that

11 started the shooting, not against the person that,

12 unfortunately, and tragically, took the life of

13 their 3 year old. So liability would extend not

14 to the person that did the shooting, but to the

15 person that caused the shooting to take place.

16 So, yes, the person that did the actual

17 shooting would be immune, but the person that

18 caused the shooting absent a collection, absent

19 being able to do so, should be the one that is

20 sued.

21 So they are not blocked from civil

22 liability, the civil liability is taken from the

23 person that is found immune and extended to the

24 person that actually caused this to transpire in

25 the first place.
1 51

2 In the case that I just mentioned in the

3 entertainment district it would be that they would

4 sue the person that pulled the gun. In the case

5 that I talked about initially where the people

6 were in their home, they would sue the girls in

7 the car, if all of these people are rich, and

8 understand that you have to have the ability to

9 pay.

10 But in the 17 year olds case there would

11 be no -- they would have nobody to sue because

12 their child was simply involved in -- and it's a

13 one-on-one situation. But anytime you've got an

14 innocent person who was hit, someone not involved

15 in whatever is going on, that person’s civil action

16 is against the wrongdoer not the person that is

17 found immune.

18 COMMISSIONER CASTRO: Senator, did you

19 want to add something it looked like you were --

20 SENATOR SMITH: Well, I guess we're --

21 I'm a little confused. The wrongdoer even if --

22 when I gave the scenario of the person doing the

23 shooting from the car -- and I understand under

24 the Representative's scenario the person who

25 initially -- who initiated it and caused the
1 52

2 incident to happen should be the person liable.

3 But if the person that's actually doing the

4 shooting even though they're defending themselves,

5 if they defend themselves in a negligent manner

6 under the case law they're immune from -- from --

7 even in the case of negligence they're immune from

8 civil liability.

9 REPRESENTATIVE RUTHERFORD: Yes, sir.

10 And this is where this came up and this is prior

11 to stand your ground. And it came up several

12 times in the case that I tried with the 15 year

13 old deceased victim.

14 If someone robs a store and the store

15 owner has a gun and he pulls the gun to defend

16 himself and he accidently hits someone else in the

17 store, do we say that store owners should not have

18 guns to protect themselves?

19 Do we mandate that the police always

20 shoot straight? Do we take guns from police

21 officers who mistakenly hit innocent victims? The

22 answer is, that the wrongdoer, the person that is

23 causing the problem in the first place, is the one

24 that's subjected to civil liability and criminal

25 liability. That's the way that it should go.
1 53

2 I understand that under stand your

3 ground we have an issue of whether this actually

4 -- whether this person is actually the wrongdoer.

5 And that's the bigger issue. But as it relates to

6 civil liability, the civil liability goes to the

7 person that created the wrong in the first place.

8 You can't say that someone negligently

9 shot if the only reason why they shot is because

10 they were being shot at. You can't mandate that

11 -- in the case that I just mentioned with the

12 South Carolina Trooper, at pointblank range he

13 fired at my client 4 times, he hit him once in the

14 hip and just barely on the side. He almost missed

15 him that time too, 4 times, pointblank range.

16 You don't mandate that people shoot

17 straight. You would hope that they would not have

18 to shoot at all. And stand your ground, in my

19 opinion, suggests that I have a right to defend

20 myself and I should not fear defending myself that

21 later on someone's going to say, "Well, you should

22 have shot better." And that was actually the

23 testimony from the police officer as to why he

24 arrested my client, he said, "He should have been

25 a better shot."
1 54

2 That's not the law. That ain't the law

3 for police officers. It's not the law for

4 individuals. The law says I have the right to be

5 clear, to free myself from thugs, from people that

6 intend to do me harm. And that if I defend myself

7 I should not be sued, nor should I be arrested,

8 detained, or prosecuted because of it.

9 I'm expensive and if someone is arrested

10 or detained and they have to hire me to defend

11 them they have spent a lot of money doing so. And

12 in doing so and they are initially found -- and

13 they are eventually found immune from prosecution

14 what the system has said is that you were wronged,

15 you were wronged by police officers who may have

16 seen you as a black man who killed a white person

17 who they didn't want to find you immune at the

18 scene so they arrested you. They made you go

19 through this trial. That's wrong. And that

20 happens. We can't take racism out of the system,

21 but we can't also sit here and act like situations

22 don't occur. And they will. And they will

23 continue to where someone defends themselves and

24 then finds themselves placed in a position where

25 they have to avail themselves of the stand your
1 55

2 ground law.

3 And once they do so civil liability is

4 there. It is clear. And it goes against the

5 wrongdoer, the perpetrator, not the person that

6 defended themselves.

7 SENATOR SMITH: Every accident is not

8 negligence, and I concede that. And

9 Representative Rutherford you keep talking about

10 "accident" and I concede that you don't have to be

11 a perfect shot, but there are times when people

12 are negligent. If it's an accident where your

13 store owner, if he accidently shoots someone, you

14 must agree that all accidents are not negligence.

15 We're talking about in cases where there is true

16 negligence.

17 REPRESENTATIVE RUTHERFORD: I think by

18 definition accidents are negligent, because if

19 it's not negligent, then it's intentional. So

20 you're only getting situations where someone

21 either negligently did something or they

22 intentionally did something.

23 You can do reckless. Reckless is they

24 did it negligently but they should have known

25 better. Someone that gets in an accident for
1 56

2 speeding on a highway, they're going 10 miles over

3 the speed limit, that's negligence. They're going

4 100 miles over the speed limit, that's reckless

5 and there's a difference.

6 SENATOR SMITH: Well, I stand corrected,

7 even in reckless in Florida you are still immune.

8 REPRESENTATIVE RUTHERFORD: But, again

9 if the recklessness -- if the reckless act was

10 brought on, simply by the person doing a wrong

11 act, meaning that, my recklessness I'm firing

12 because this person shot a gun at me we're not

13 going to go back in South Carolina, and I doubt

14 Florida will either, and say that when you are

15 fired upon you can only fire one shot and that

16 shot must be at the upper torso, at the head.

17 That's not the law. The wrongdoing is

18 the person that caused this person to fire a shot.

19 In the Trayvon Martin case, and I've said this

20 repeatedly, what would have been interesting in

21 Florida is if Trayvon Martin would have shot

22 George Zimmerman and tried to avail himself of

23 stand your ground, and was denied that by law

24 enforcement and then by a judge. That's what

25 would have been interesting whether a black man in
1 57

2 a hoodie could avail themself of stand your

3 ground.

4 That's a test of the law. That's a test

5 of the law. What George Zimmerman did, did not

6 use your stand your ground. He simply said, "I'm

7 white, he's black. Self-defense." People found

8 that.

9 But if Trayvon Martin would have shot

10 George Zimmerman, that's a test of the law.

11 The five -- it's five points, the

12 entertainment district shooting where the young

13 lady was paralyzed, that gentleman's family called

14 me and I knew that there was a stand your ground

15 case. I did not know that he was a convicted

16 felon. That was going to be a test case in South

17 Carolina as to whether they truly have the

18 backbone to support when an individual that we

19 know society -- whether he's Latino or African

20 American has shot someone, an innocent white woman

21 who's now paralyzed, whether he's going to be able

22 to use the stand your ground defense.

23 They were able to skirt that by letting

24 the federal government take it over, but that's a

25 test of the law. That's a test of the law.
1 58

2 COMMISSIONER CASTRO: Before we go on to

3 Commissioner Achtenberg, actually Commissioner

4 Yaki has an article here that is germane to the

5 colloquy that was going on here.

6 Commissioner Yaki and then we'll go to

7 Commissioner Achtenberg and then -- no, I know

8 I've got a list here. It's Achtenberg, Patricia

9 Timmons-Goodson, and then Gail.

10 COMMISSIONER YAKI: I just wanted to

11 point out that cutting through -- cutting through

12 all of this is that a South Carolina Judge has

13 interpreted the statute to be identical to Florida

14 and to grant civil immunity to an individual who

15 -- who in exercising his or her stand your ground

16 rights shot and killed an innocent bystander. I

17 just wanted to put that on the record.

18 REPRESENTATIVE RUTHERFORD: Right,

19 that's my case.

20 COMMISSIONER CASTRO: Commissioner

21 Achtenberg, then Commissioner Timmons-Goodson, and

22 then Commissioner Heriot.

23 And do any of the Commissioners on the

24 phone want to indicate an opportunity to ask a

25 question?
1 59

2 COMMISSIONER KIRSANOW: Mr. Chair, this

3 is Kirsanow, I may have one question.

4 COMMISSIONER CASTRO: Okay. I'll have

5 you after Commissioner Heriot.

6 Commissioner Achtenberg.

7 COMMISSIONER ACHTENBERG: Thank you,

8 Mr. Chairman. Senator Smith, my -- I have many

9 grave concerns about the Florida version of the

10 stand your ground law. The most significant of

11 which is the interjecting of complete subjectivity

12 into the self-defense law of Florida.

13 And by that I mean what used to be an

14 objective standard, whether or not it was a

15 reasonable person would have perceived the threat

16 sufficiently to warrant his or her response with

17 deadly force not whether or not a person with a,

18 you know, a thin -- a thin skinned plaintiff or

19 what have you, but whether or not this person

20 perceived that they were in -- in danger of being

21 -- having deadly force used against them they

22 responded preemptively and in kind.

23 Can you explain the rationales being

24 offered at the time that this revolutionary

25 statute was adopted by the Florida legislature?
1 60

2 What was the -- was there a precipitating event

3 that encouraged the legislature to throw out a

4 hundred years of common law and to change the

5 paradigm such that implicit bias is then baked

6 into the system?

7 We talked before about the limitations

8 to due process and the assertion was made, with

9 which I agree that given that there's implicit

10 bias abounding it affects everything that we do,

11 including what judges do, and what prosecutors do,

12 and what police do, and what persons on the street

13 do. But why bake in that bias into the

14 assumptions of this new law, what was the

15 rationale offered at the time, Senator?

16 SENATOR SMITH: It's funny that you

17 mention it, there was a case in North Florida that

18 was that cited as the impetus of this. It was a

19 -- it was after a hurricane, an elderly gentleman

20 and his wife -- and what was told to the

21 legislature by the proponents of it, there was an

22 elderly gentleman and his wife living in their

23 trailer after a hurricane and a man from South

24 Carolina who was working in Florida to help with

25 the clean up came to the gentleman's house, and an
1 61

2 altercation ensued and the older gentleman shot

3 the young guy. And it was told that the older

4 gentleman was arrested and had to go through all

5 of these months of worrying about whether he was

6 going to be convicted, had to get lawyers and

7 everything. But it turned out to be a fallacy

8 once the purporters started looking into it later.

9 But just -- the climate in the Florida legislature

10 is the easiest law to pass is something, you know,

11 giving people more gun rights or tough on crime or

12 something like that.

13 And to go more to your concern it wasn't

14 thought that it would be such a subjective

15 standard. When it was passed and I voted against

16 it, but even colleagues of mine that voted for it

17 did not know and it wasn't fully explained that it

18 would be a subjective standard. And that's why

19 we've tried to go in subsequently and at least

20 move it to more of an objective standard. Because

21 as you've stated that's where the racial bias

22 comes in. That's where some of the concerns come

23 in because it's such a subjective standard that

24 people can avail themselves of this even -- not in

25 a reasonable circumstance. I don't reasonably
1 62

2 think that I should shoot someone in a movie

3 theater because they threw popcorn at me. But if

4 it's subjective, if I go to a subjective and did

5 this person actually fear when the person stood up

6 and threw popcorn, they can avail themselves.

7 And so that's been some of the concerns

8 that we've had and some of the changes that we've

9 proposed to make it more of an objective standard

10 instead of subjective.

11 COMMISSIONER ACHTENBERG: And did the

12 legislature recognize that all of these judgments

13 would be made at the scene and essentially by the

14 officer? Did they understand that what had

15 traditionally been the prerogative of judges and

16 lawyers in courtrooms with due process,

17 evidentiary protections, et cetera, et cetera,

18 would now be pushed down to the investigating

19 officer to make some kind of, at least,

20 preliminary judgment about whether or not the

21 person had reasonable -- not reasonable fear,

22 whether the person had fear at all and I therefore

23 used deadly force against an aggressing, you know,

24 an aggressor?

25 SENATOR SMITH: At the time in 2005 I
1 63

2 was the Minority Leader of the Florida House and I

3 can honestly say this wasn't a big issue. When

4 stand your ground passed, myself and two other

5 lawyers that were in the Democratic Party, we

6 wrote a letter -- we voted against it. And only

7 about 12 of us did. The entire Senate,

8 bipartisan, every member of the Florida Senate

9 voted for it. It wasn't seen as a groundbreaking

10 piece of legislation, and it sat actually dormant

11 and not used until you started hearing about the

12 Trayvon Martin case. So remember this passed in

13 2005, and when did you really hear about this law?

14 After the Trayvon Martin case.

15 And now we've seen a plethora of cases

16 come after it because people are starting to avail

17 themselves and become embolden because they think,

18 you know, "I got this great get out of jail ticket

19 to do my aggression."

20 But, honestly, in 2005 members did not

21 understand the full ramifications, non-lawyer

22 members because we're, you know, legislature of a

23 lot of people, did not understand the

24 ramifications. And even the lawyers in the

25 legislature didn't fully understand because it was
1 64

2 such a new and groundbreaking piece of

3 legislation. It was just sold on a political

4 basis as "you shouldn't have to cut and run, you

5 shouldn't have to retreat, you shouldn't have to

6 turn and run. And this is the way of making --

7 giving your citizens a chance not to have to turn

8 and run and get shot in the back."

9 COMMISSIONER ACHTENBERG: Thank you,

10 Senator, I appreciate that.

11 COMMISSIONER CASTRO: Next we have

12 Commissioner Timmons-Goodson, who will be followed

13 by Commissioners' Heriot, Kirsanow, Kladney, and

14 then Commissioner Yaki.

15 COMMISSIONER TIMMONS-GOODSON: Thank you

16 so very much, Mr. Chair.

17 COMMISSIONER CASTRO: You're welcome.

18 COMMISSIONER TIMMONS-GOODSON: My

19 question is for Representative Rutherford. One of

20 the major criticisms offered of the stand your

21 ground laws by opponents is that it so easily

22 allows the escalation of fairly small incidents

23 into deadly affairs.

24 And with that in mind I'd like to just

25 explore with you for just a few moments your
1 65

2 thoughts based on statements that you've made.

3 You've said early on that at the time

4 that the stand your ground law was enacted in

5 South Carolina that there was no self-defense law.

6 That laws related to self-defense were outdated

7 and archaic. That one could not elevate, I

8 believe you said, the use of force.

9 In fact the common law was what was in

10 effect. Is that not right? In other words, the

11 judges used the common law, applied that to the

12 facts that came before them. Is that right?

13 REPRESENTATIVE RUTHERFORD: They applied

14 prior case law, exactly.

15 COMMISSIONER TIMMONS-GOODSON: Okay.

16 And that prior case law was based on common law?

17 REPRESENTATIVE RUTHERFORD: That's

18 right.

19 COMMISSIONER TIMMONS-GOODSON: Now

20 you've also said that stand your ground or the

21 stand your ground that you support means that

22 people don't have to live in fear. That elevating

23 -- not elevating force doesn't make sense to you.

24 First, I guess I want to know -- ask you

25 to explain your thought that the laws that were in
1 66

2 effect or applied relating to self-defense prior

3 to stand your ground laws, why they were archaic,

4 you know, what makes you say they were outdated?

5 REPRESENTATIVE RUTHERFORD: Well,

6 remember South Carolina had no statute on

7 self-defense. So it was simply based on your

8 ability to articulate your self-defense or why you

9 did something in a trial while you were on trial

10 for a judge, determine that are

11 absolutely right. You defended yourself. You

12 have a right to do so. And in doing so you should

13 be immune from prosecution.

14 The non-elevation --
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2 COMMISSIONER TIMMONS-GOODSON: Well, let

3 me just ask you. How does that differ from any

4 other defendant defending themself in response to

5 a criminal charge filed or a civil case where a

6 plaintiff asserts something and, you know, one is

7 called upon to gather your resources and to

8 defend, I mean, how is that --

9 REPRESENTATIVE RUTHERFORD: Your liberty

10 is not in jeopardy in a civil case. In a criminal

11 case your liberty is in jeopardy. And so, for

12 most criminal cases if a trial is going forward on

13 a forgery or a fraud charge, what you're saying is

14 that "I did not do this."

15 When it's related to self-defense then

16 stand your ground requires that you say, "I did

17 this. And I did this for this reason." And

18 you're asking that a judge in an immunity hearing

19 say, "What you did is reasonable." Or "What you

20 did is unreasonable."

21 In the case where the gentleman was

22 involved in the home invasion and he tried to say,

23 "I should be cleared under stand your ground."

24 The judge sent it up. The Court of Appeals said,

25 "No, give him a hearing." The judge gave him a
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2 hearing and denied him immunity. Period.

3 It is based on reasonableness. And I'll

4 read you 1611.420 --

5 COMMISSIONER TIMMONS-GOODSON: That's --

6 that is -- well, we could go in different

7 directions, but I hear -- and I didn't mean to cut

8 you off. But I hear what you're saying. But you

9 do have bond in cases that would have involved

10 self-defense as you would have had bond offered in

11 other cases in South Carolina, do you not?

12 REPRESENTATIVE RUTHERFORD: Yes, ma'am.

13 And bond is based on -- what should be based on,

14 simply someone's -- whether they're going to show

15 back up in court. Whether they're a danger.

16 If they're charged with murder even

17 under the stand your ground cases they would still

18 have to go forward and get a bond. But at least

19 at the bond hearing you'd have the right, as I did

20 in the most recent case to say, "We believe that

21 this -- that stand your ground is going to apply

22 in this." And have a judge listen and agree or

23 disagree and set bond accordingly.

24 Bonds are not meant to punish, but most

25 often in murder cases they do exactly that.
1 69

2 COMMISSIONER TIMMONS-GOODSON: Okay. So

3 as I understand that the reason that your existing

4 or the existing South Carolina laws relating to

5 self-defense were viewed as archaic is that it

6 required an individual to -- it required an

7 individual to go forward and to defend themselves?

8 REPRESENTATIVE RUTHERFORD: To stand

9 trial. And at trial only then could you defend

10 yourself, not prior to that point.

11 COMMISSIONER TIMMONS-GOODSON: Okay.

12 Second and last question. You say that stand your

13 ground law to you means that you don't have to

14 live in force --

15 REPRESENTATIVE RUTHERFORD: Fear.

16 COMMISSIONER TIMMONS-GOODSON: -- that it

17 doesn't make sense to you that one would not be

18 permitted to elevate force. I guess I'm left

19 wondering why is it not common sense that if

20 someone comes up and pushes you, that you push

21 them back, or someone comes up and hits you with a

22 fist that you hit them with a fist, why should --

23 I mean, why does it make such sense that you could

24 elevate the force that you use to a gun or a knife

25 in response to being pushed or hit with a fist?
1 70

2 REPRESENTATIVE RUTHERFORD:

3 Commissioner, respectfully, I submit that you

4 should have a right to not have people hit you

5 with a fist. That you have a right not to be

6 pushed. That you have a right not to wait and see

7 what the next step will be once someone hits you

8 in the face.

9 You should not wait to see whether

10 you're going to be knocked out. You should have a

11 right to pull that gun if you have one and say,

12 "Leave me alone. I don't want to be bothered."

13 And that's what the general assembly found. We

14 have a right to live in peace.

15 And peace means that I'm not going to

16 wait on you to hit me. I'm not going to wait on

17 you to push me. I'm standing with my two children

18 -- I have two little boys. And if you're going to

19 walk up to me and try an assault me or one of them

20 I'm not going to wait to see what your next step

21 is going to be before I decide what I'm going to

22 do.

23 That's what the general assembly found.

24 And I think that's common sense.

25 COMMISSIONER TIMMONS-GOODSON: Thank
1 71

2 you, sir.

3 COMMISSIONER CASTRO: Commissioner

4 Heriot, you have the floor.

5 COMMISSIONER HERIOT: Thank you,

6 Mr. Chairman.

7 Here's my problem with the discussion so

8 far. It seems like a lot of what is being said

9 here is not special to stand your ground at all,

10 but rather could be an argument against the

11 doctrine of self-defense in the first place. And

12 I assume that nobody here is in favor of repealing

13 self-defense as a basic doctrine here.

14 Representative Rutherford, I was

15 impressed by your discussion a little while ago

16 about implicit bias. Let me see if I can restate

17 it and see whether you still agree with me.

18 The way that I see it, as you put

19 it implicit bias is background. It's involved not

20 just in stand your ground laws it's involved in

21 every kind of law there can be including the

22 exercise of basic self-defense.

23 So if we're talking about a non-stand

24 your ground state one of the things that has to be

25 guarded against, generally, is implicit bias
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2 against black males, a trigger-happy person who

3 believes he's under attack, but isn't. You know,

4 he thinks the black male is about to attack him,

5 but it's not true, he pulls the gun. And, you

6 know, that problem's always there.

7 And that problem's there when we talk

8 about home invasions and the general Castle

9 Doctrine. And what stand your ground adds to that

10 is simply now there's this small number of cases

11 -- I think it's important to recognize stand your

12 ground applies only on very, very few cases. I

13 mean, you know, the result will turn on stand your

14 ground in just a shockingly small number of cases.

15 These will be the cases that don't occur in a

16 home. Do occur in some place where the person who

17 is exercising self-defense or supposedly

18 exercising self-defense believes reasonably that

19 he could retreat but chooses not to.

20 In most of these cases in public places

21 that's not going to be possible to retreat and

22 therefore stand your ground doesn't make any

23 difference you still have a right to self-defense.

24 And we're talking about this tiny number of case

25 -- cases where the defendant or the person who is
1 73

2 exercising or is said to be exercising

3 self-defense knows that he can retreat but chooses

4 not to, that's a very small number of cases.

5 Stand your ground adds an implicit bias problem

6 against the black male who is perceived to be

7 attacking.

8 But on the other hand it helps the black

9 male in the opposite position, the one who's

10 actually purportedly exercising self-defense, he

11 has to worry about implicit bias at the time of

12 trial whence the jury is second guessing him on

13 whether or not he could have retreated. They

14 weren't there. And they may be more likely to

15 find "Hey, you know, the guy says that he was

16 under attack, we don't believe him." Or "Hey, he

17 says that he could have retreated, we don't

18 believe him."

19 So implicit bias is everywhere in that

20 respect. And stand your ground doesn't add to the

21 problem for the black male it simply helps a

22 different category of black male.

23 REPRESENTATIVE RUTHERFORD: Absolutely.

24 You succinctly stated exactly what my position has

25 been. And I agree with you. I think that a lot
1 74

2 of these cases that have been mentioned aren't

3 necessarily turning on stand your ground, but an

4 officer and an investigator's perception of what

5 is self-defense any way. And then he's saying,

6 "Well, because of stand your ground I'm not going

7 to arrest you -- I'm not going to detain you."

8 But it's his assertion of self-defense in using

9 that as a --

10 COMMISSIONER HERIOT: So the second

11 manifestation that I saw with this problem where

12 we seem to be moving between self-defense and

13 stand your ground and not recognizing that the

14 arguments were being -- made that apply to

15 self-defense too.

16 REPRESENTATIVE RUTHERFORD: Right.

17 COMMISSIONER HERIOT: Was -- in the area

18 -- Senator Smith, you mentioned the detain issue

19 in the Florida statute. But isn't that just what

20 the basic law would be with regard to self-defense

21 if police officers investigate a crime and it's

22 not a stand your ground case, it's just basic

23 self-defense, everybody agrees there was no

24 ability to retreat so stand your ground doesn't

25 make any difference. You don't arrest someone if
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2 the police officer concludes, "Oh, I believe based

3 on what I know this was self-defense."

4 You wouldn't arrest somebody like that,

5 would you? You wouldn't advocate that would you?

6 SENATOR SMITH: The concern with stand

7 your ground, and it puts the officer in a very

8 defensive posture. Before stand your ground I

9 agree you need probable cause and you would do

10 that. But stand your ground, now the officer now

11 has a statute that says I cannot detain and

12 also --

13 COMMISSIONER HERIOT: But he couldn't

14 before could he?

15 SENATOR SMITH: -- ma'am, if I could --

16 COMMISSIONER HERIOT: On a self-defense

17 case you couldn't -- he can't detain somebody if

18 the police --

19 SENATOR SMITH: Within that statute it

20 explicitly gives a civil liability to that police

21 department if it's found that they were detained

22 in a stand your ground case. So it couldn't

23 before but that was case law and officers use

24 prudent judgment. But now an officer has a

25 statute -- a statute that says "I cannot detain,"
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2 and "by the way if I detain I might get sued."

3 And so it affects the way that officer truly

4 investigates. As before he would just use

5 investigative skills and figure out do I have due

6 process. Now he has this hover above his head

7 saying, "Oh, my God, if I use my investigative

8 skills and I may be wrong I have a statute

9 particularly pointing to civil liability for me

10 and my department."

11 So it affects the officers use of his

12 investigative skills because now we've put in

13 statute -- not just common sense and case law, but

14 we've put in statute that you better not detain.

15 And by the way if you make the wrong judgment,

16 officer on the street, your department's getting

17 sued.

18 REPRESENTATIVE RUTHERFORD: Yes, but

19 that's exactly what should happen. You should not

20 detain people that simply defended themselves that

21 are not wrongdoers.

22 Commissioner, you're exactly right and

23 that turns on, in my situations, African American

24 males who are guilt -- who are dealing with that

25 implicit bias from police officers going, you
1 77

2 know, "I'm not going to give you that benefit of

3 the doubt."

4 And that police officer should be sued

5 simply because he now is detaining Trayvon Martin,

6 should he have shot George Zimmerman, saying,

7 "Well, I'm not going to -- you're a black man in a

8 hoodie I'm not going to give you that same

9 defense."

10 The police should be sued when they are

11 detaining and arresting people that are not

12 wrongdoers.

13 COMMISSIONER HERIOT: The third area

14 where I saw, again, getting off track and acting

15 as if, you know, we're talking about stand your

16 ground when in fact the argument that is being

17 made would apply to self-defense generally was

18 with the civil liability area.

19 You know, it's massively more important

20 that, like, when people are exercising their right

21 to self-defense just in an ordinary case where

22 stand your ground wouldn't be involved, you've

23 still got the problem of mistaken self-defense.

24 You know, if the gun goes off and hits a third

25 person or they were mistaken in the first place,
1 78

2 they shoot someone reasonably believing that they

3 are under attack, but wrong.

4 And, you know, I teach torts in law

5 school. One of the cases in my book is Crovocia

6 (phonetic) versus Raymond. It's not a stand your

7 ground case. It's an old Colorado case from the

8 early part of the 20th century where someone

9 exercising self-defense reasonably, but

10 mistakenly, they end up shooting someone and that

11 person was not actually attacking them.

12 The law has been that as long as you're

13 acting reasonably you're not liable. It doesn't

14 strike me that we're really talking about

15 something different here.

16 Now you can argue about whether or not

17 that's good law. You know, maybe -- maybe it

18 should be better policy to say that you're not

19 criminally liable for use of self-defense, but if

20 it turns out that you made a mistake, even if it

21 was a reasonable one then you should be liable for

22 civil damages.

23 If I am not mistaken, in ancient Rome

24 that was what the law was. You had a right to

25 self-defense as to criminal liability, but if you
1 79

2 got it wrong and you shot somebody even though it

3 was reasonable and it turns out to have been wrong

4 you were civilly liable. And some people have

5 advocated such a rule.

6 But that's really quite detached from

7 the basic stand your ground issue. In a given

8 state could choose to make civil liability

9 available for mistaken use of self-defense that is

10 nevertheless reasonable or they could choose not

11 to. But it's not -- it's not the core issue we're

12 concerned with and I think we make a mistake when

13 we start analyzing particular states statutes here

14 and have they been drafted the best way possible.

15 As a federal commission we should be more

16 concerned with is the concept of stand your ground

17 a good concept or not. And, you know, if any of

18 you have a comment on that?

19 SENATOR SMITH: Ma'am, I would disagree

20 when you talk about the civil liability because

21 you keep getting to reasonableness and under prior

22 common law and course law -- case law even when

23 you're talking about civil liability you say

24 reasonableness. But under stand your ground and

25 stand your ground specific, you don't even get to
1 80

2 reasonableness because it's a blanket, a blanket

3 of -- of absolution of liability, you don't even

4 get to reasonableness. If you're asserting stand

5 your ground you never get to anyone determining

6 whether you were reasonable. And me trying to

7 defend myself against you and I just start

8 shooting everyone. You don't get there because

9 the statute written in Florida absolves you of any

10 liability, even reckless -- reckless liability --

11 COMMISSIONER HERIOT: But my point is

12 we're a federal commission, we don't like, you

13 know, nickel and dime the state statute. If you

14 don't like that aspect of the statute then the

15 Florida legislature gets to change that. But

16 that's not the basic concept of stand your ground,

17 the basic concept of stand your ground is

18 different from that.

19 You know, if South Carolina has a

20 different statute and a different approach to

21 civil liability. And Virginia, or Minnesota, or

22 South Dakota have different approaches to that,

23 this is not a commission convened to fly speck the

24 -- the Florida statute. That's not the core

25 concept of stand your ground.
1 81

2 SENATOR SMITH: I thought -- this is a

3 commission on human rights and if there is a --

4 COMMISSIONER HERIOT: Civil rights.

5 Civil rights.

6 SENATOR SMITH: Civil rights. If there

7 is a statute in a state in this nation that

8 encourages people to act recklessly, and even

9 though it may be nickel-and-diming in Florida, and

10 I would hope that Florida would change that. But

11 if Florida doesn't have the fortitude to do the

12 right thing by its people I would hope that this

13 commission would at least speak to giving Florida

14 that fortitude to say "you know, what this statute

15 is wrong because it encourages people to be

16 reckless --

17 COMMISSIONER HERIOT: But the

18 constitution doesn't actually work that way. We

19 don't have authority to tell Florida how to --

20 SENATOR SMITH: -- encourage --

21 COMMISSIONER HERIOT: -- we have

22 certain --

23 COMMISSIONER CASTRO: Order. Order

24 here. We're talking over one another. The

25 record's not going to be clear.
1 82

2 But in the interest of time if I could

3 ask Representative Smith to just wrap up what

4 you're saying.

5 And Mr. Abuznaid, did you have anything

6 to respond to on this? Otherwise, I'll when --

7 then I'll move onto the next commissioner. But,

8 if you have -- when he's done if you have

9 something to say, then we'll move on to

10 Commissioner Kirsanow in the interest of time.

11 Mr. -- Representative do you want to

12 finish your statement?

13 SENATOR SMITH: -- no, no --

14 COMMISSIONER CASTRO: Okay.

15 Mr. Abuznaid.

16 MR. AHMAD NABIL ABUZNAID: Yeah, I'd

17 just like to say that I hope that I wasn't

18 implying that there's something wrong with

19 self-defense. I actually think if self-defense

20 was so good we should have left it that way. And

21 so I don't think, for me, I get the Castle

22 Doctrine, I get why that was important. I think

23 that's why there was a distinction made that the

24 Castle Doctrine would empower American citizens to

25 protect their home. But stand your ground said,
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2 "You know what, the castle is your entire world

3 now. The castle is the movie theater, the castle

4 is your child's school."

5 There was a Broward County case where a

6 kid got arrested for assault and battery and the

7 -- I think it was in the Fourth Judicial Circuit,

8 the case was overturned because of stand your

9 ground. And so the reality is, it's irresponsible

10 law. Self-defense is great, stand your ground is

11 not.

12 COMMISSIONER CASTRO: Okay. We're going

13 to move on to Commissioner Kirsanow followed by

14 Commissioner Kladney.

15 Commissioner Kirsanow, are you there?

16 COMMISSIONER KIRSANOW: I am. I'm here.

17 Thank you very much. Can you hear me okay?

18 COMMISSIONER CASTRO: Yes.

19 COMMISSIONER KIRSANOW: Okay. I think

20 that the impetus for this hearing largely was the

21 Trayvon Martin case. And I just want to be sure

22 that we have on the record at least if one of the

23 witnesses is aware of this and I'm not sure which

24 one might be aware of it, but, Mr. Rutherford, do

25 you know whether or not Trayvon Martin invoked
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2 stand your ground defense?

3 REPRESENTATIVE RUTHERFORD: George

4 Zimmerman. My understanding is he did not invoke

5 that, although --

6 COMMISSIONER KIRSANOW: I'm sorry,

7 George Zimmerman.

8 REPRESENTATIVE RUTHERFORD: -- although

9 law enforcement would have known about the

10 existence of it. My understanding is that George

11 Zimmerman did not invoke it, no.

12 SENATOR SMITH: Can I answer that? Can

13 I --

14 COMMISSIONER KIRSANOW: Was it part of

15 the charge to the jury?

16 REPRESENTATIVE RUTHERFORD: Yes.

17 SENATOR SMITH: There were two -- if I

18 can chime in. There's two -- there's two things

19 of the stand your ground. There's the procedural

20 aspect of stand your ground which is invoking it

21 and having the procedural hearing in front of a

22 judge to invoke stand your ground.

23 George Zimmerman did not avail himself

24 of that procedural aspect of stand your ground.

25 But when you talk in Florida stand your ground is
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2 self-defense. And within the jury instruction

3 that was used by George Zimmerman's case and any

4 other self-defense case in Florida there's no

5 separation between stand your ground and

6 self-defense.

7 And so although he did not avail himself

8 of the procedural aspect of stand your ground, he

9 certainly availed himself of the substantive

10 aspect of stand your ground. It was used in the

11 Trayvon Martin case.

12 COMMISSIONER KIRSANOW: Second, I'd like

13 to ask in terms of there's been a lot of

14 discussion about, you know, someone shooting

15 straight, or shooting recklessly, or shooting

16 negligently, I guess I'll pose this to

17 Mr. Rutherford who sounds a little bit like me. I

18 hope for your sake very sincerely Mr. Rutherford

19 that you don't look like me.

20 But the -- well, let me put it this way.

21 I live -- I'm a black male living in what is

22 generally considered in Cleveland a high crime

23 neighborhood. And in the last, I'd say, three

24 decades I've probably been in situations three,

25 possibly four times where I could have invoked if
1 86

2 it were available stand your ground defense. But

3 what strikes me is something similar to what

4 Justice Holmes said over -- more than 90 years

5 ago, when he said, "The law does not demand

6 detached reflection in the presence of an uplifted

7 knife."

8 Mr. Rutherford, in the circumstances

9 where you've defended people invoking a stand your

10 ground defense, how quickly do these circumstances

11 evolve? I mean, when someone is attacked do they

12 have time to think about the consequences of their

13 actions or is this life and death?

14 REPRESENTATIVE RUTHERFORD: In the

15 situations where I've been involved it has been

16 life and death. And I think you bring about a

17 great point as I have failed to see the

18 distinction between stand your ground and

19 self-defense except that stand your ground says

20 that you don't have a duty to retreat outside of

21 your home.

22 And that is one of the biggest

23 distinctions, and truly the only distinction, and

24 the one that I would say is archaic.

25 I do look like you except I'm not a
1 87

2 black male living in Cleveland, I'm a black male

3 living in South Carolina. And I have not had the

4 -- and fortunately, had to defend myself anytime

5 recently. But I would suggest that anyone that

6 does is simply acting on common sense and

7 self-defense and still faced with the test of

8 reasonableness. Reasonableness does not go out of

9 the window based on stand your ground.

10 And there are a number of cases where

11 people have tried to use stand your ground

12 procedurally and been turned down from doing so.

13 Stand your ground was used as a jury

14 charge in the George Zimmerman case, but it was

15 used to say that he did not have a duty to retreat

16 outside of his home.

17 But, again, I ask who among us asserts

18 that you should have to retreat outside of your

19 home. Why are we encouraging thugs to approach

20 people and telling people that they have a duty to

21 retreat before they act on it.

22 Why are we saying that people must run,

23 retreat, turn your back. It was stated in Florida

24 it said "safely retreat." That was not the law in

25 South Carolina, it was retreat. And in many other
1 88

2 places where stand your ground was passed.

3 What we are saying is that you have a --

4 an opportunity and a duty to defend yourself, to

5 defend others, and in acting on that you will not

6 be prosecuted. You will receive procedurally

7 immunity from prosecution.

8 COMMISSIONER KIRSANOW: Thank you. And

9 one last question. I heard, and I didn't know

10 which witness that it was, indicate that the U.N.

11 Human Rights Commission found stand your ground

12 incompatible with the notion of right to life.

13 Did I hear that correctly?

14 MR. AHMAD NABIL ABUZNAID: Yep, that's

15 correct.

16 COMMISSIONER KIRSANOW: Whoever

17 testified to that do you know when the Human

18 Rights Commission -- the U.N. Human Rights

19 Commission made that statement?

20 MR. AHMAD NABIL ABUZNAID: Yep,

21 absolutely. It was during the review of the

22 ICCPR. It was held in March of 2014.

23 COMMISSIONER KIRSANOW: So this would be

24 the same Human Rights Commission that has those

25 human rights and pro-life exemplars such as
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2 Russia, Saudi Arabia, Pakistan, Libya, Syria, and

3 Uganda, correct?

4 MR. AHMAD NABIL ABUZNAID: Could you

5 repeat the question, please?

6 COMMISSIONER KIRSANOW: Is this the same

7 U.N. Human Rights Commission that has the human

8 rights exemplars on the commission such as Russia,

9 Saudi Arabia, Pakistan, Libya, Syria, and Uganda?

10 MR. AHMAD NABIL ABUZNAID: Are you

11 asking if those are the people that sit on the

12 committee or are those the people --

13 COMMISSIONER KIRSANOW: Yes.

14 MR. AHMAD NABIL ABUZNAID: No, I believe

15 the committee was made up of, you know, Israel --

16 several other states, but I don't remember Russia

17 being one of them, but it was several nations. I

18 believe also that information could be found

19 online.

20 COMMISSIONER KIRSANOW: I think it can.

21 Thank you.

22 COMMISSIONER CASTRO: Thank you,

23 Commissioner Kirsanow.

24 Commissioner Kladney.

25 COMMISSIONER KLADNEY: Thank you,
1 90

2 Mr. Chairman. My -- my question seems to revolve

3 around procedure -- due process. I don't -- I

4 don't understand this -- I think it's

5 Representative Rutherford who's talking about

6 people shouldn't have to be arrested.

7 Well, in process today in criminal law

8 police don't have to arrest anybody. They can

9 investigate. They can turn their information over

10 to the district attorney. The district attorney

11 can decide whether to charge or not. And at least

12 that's the process in my jurisdiction, it may not

13 be that way in South Carolina.

14 But it seems to me -- and I think this

15 is a question for the entire panel. That when you

16 put a police officer who is trained to be an

17 investigator, not a decision maker, in charge of

18 making a decision, then his investigation, once he

19 makes that decision in his mind is all angled

20 toward that decision that he has made. And

21 therefore, I assume when you have this immunity

22 hearing he is going to be on the witness stand

23 defending his decision, where in the past the

24 police officer -- the neutral, would come to court

25 in a preliminary hearing, which I assume would be
1 91

2 akin to an immunity hearing. And a neutral judge

3 would make a decision as to whether there was

4 probable cause or there was self-defense.

5 Although I do understand that many

6 criminal defendants refuse to provide -- at any

7 case, in a preliminary hearing.

8 So if someone -- if you all could

9 discuss this kind of aspect to -- in relationship

10 to the law I would appreciate it. Try and

11 enlighten me a little.

12 REPRESENTATIVE RUTHERFORD: In South

13 Carolina you are -- a preliminary hearing, where a

14 hearing is determined -- is held to determine

15 whether the case proceeds to the grand jury is not

16 a right and can be taken away by a prosecutor who

17 simply seeks to indict.

18 At a preliminary hearing in South

19 Carolina a defendant is not avail -- he cannot

20 put up any evidence it is only put on by the

21 state.

22 And a law enforcement officer who

23 arrests someone unlawfully should be sued. A law

24 enforcement officer that arrests someone who

25 should not have been detained or arrested should
1 92

2 be sued anyway.

3 I think this statute only makes it

4 clear -- it does that in Florida, it doesn't

5 necessarily do that in South Carolina.

6 But, again, procedurally, what this does

7 is allow someone, in my cases, African American

8 males to avail themselves of the judicial system

9 in front of a general sessions judge, what people

10 on the street would call a big court judge. I

11 don't know if they're Supreme Court judges or

12 circuit court judges in Florida. But they would

13 be a general sessions judge who has the ability to

14 give them immunity. Taking that decision solely

15 away from law enforcement where it has -- where it

16 was invested all up until this point. There's no

17 one that can tell me --

18 COMMISSIONER KLADNEY: But, but, you're

19 the one who says that the old self-defense law was

20 -- it was case law, it was all over the place.

21 REPRESENTATIVE RUTHERFORD: In South

22 Carolina, yes.

23 COMMISSIONER KLADNEY: When in fact I

24 would assume that you had jury instructions

25 explaining exactly what the elements of
1 93

2 self-defense were.

3 REPRESENTATIVE RUTHERFORD: If you did

4 not meet with the elements of self-defense in

5 South Carolina you did not get a jury charge to

6 that effect.

7 So a judge had to determine that you

8 could even -- that he would even give that charge

9 before he would do so.

10 COMMISSIONER KLADNEY: So -- excuse me.

11 So what's -- where does stand your ground then

12 become different than self-defense? If it is

13 different from self-defense outside of

14 procedurally, explain it to me.

15 I mean, you have to be in fear of

16 harm --

17 REPRESENTATIVE RUTHERFORD: Outside --

18 COMMISSIONER KLADNEY: -- you get to

19 defend yourself. And the charge to the jury is

20 the definition of the law.

21 REPRESENTATIVE RUTHERFORD: Right.

22 Procedurally self-defense differs from stand your

23 ground because stand your ground is going to give

24 you an immunity hearing. So procedurally it

25 differs that way.
1 94

2 Outside of that it differs because it

3 takes the common law doctrine, the common law

4 Castle Doctrine and extends that to wherever you

5 may be. You never had a right to -- you never had

6 a duty to retreat in your home. Now that duty to

7 retreat goes away when you're outside of your home

8 as well. It says that you have the right to live

9 unmolested.

10 COMMISSIONER KLADNEY: So you -- you

11 really are saying if someone starts angering me

12 and I get angry and I throw a punch, he can take a

13 gun out and shoot me. Is that correct?

14 REPRESENTATIVE RUTHERFORD: I'm saying

15 that if someone angers you --

16 COMMISSIONER KLADNEY: Is that correct,

17 yes or no? Yes or no, sir? Yes or no, if I throw

18 a punch at someone can they take a gun out and

19 shoot me?

20 REPRESENTATIVE RUTHERFORD: Yes. You

21 should not throw a punch at someone.

22 COMMISSIONER KLADNEY: Thank you.

23 That's fine. Thank you.

24 REPRESENTATIVE RUTHERFORD: Yes. The

25 general assembly has consistently found in states
1 95

2 where they've enacted this that you should have a

3 right to live unmolested. That you should have a

4 right to expect to be left alone with your home,

5 your business, and your vehicle, and wherever you

6 may stand. And this assertion that you should be

7 able to walk around, whether it's a commissioner

8 or anybody else, punching people in the face

9 without the -- without them having the ability to

10 defend themselves, to me, just does not make

11 sense. We negate the fact that --

12 COMMISSIONER KLADNEY: -- you've never

13 been in an alcohol-fueled situation and you've

14 never seen a fight occur like that?

15 REPRESENTATIVE RUTHERFORD: I've never

16 been in a what?

17 COMMISSIONER KLADNEY: Alcohol-fueled

18 situation where alcohol is driving the parties?

19 REPRESENTATIVE RUTHERFORD: I don't

20 drink, but I have been in a number of situations

21 where people were fueled by alcohol and doing

22 wrong.

23 In South Carolina we also allow you to

24 carry your gun into a bar if --the bar owner

25 does not put up a sign and prohibit you from doing
1 96

2 so.

3 However, in doing that we mandate that

4 concealed weapons permit holders that are going

5 into a bar can have absolutely no alcohol. So if

6 a concealed weapons permit holder in South

7 Carolina was in a bar and had a weapon on them and

8 was, as in your scenario, punched in the face,

9 would they have a right to defend themselves?

10 Absolutely.

11 COMMISSIONER CASTRO: But if the gun's

12 concealed --

13 COMMISSIONER KLADNEY: Would anyone else

14 on the panel like to comment --

15 REPRESENTATIVE RUTHERFORD: -- the bar

16 owner would have a sign on the door saying "No

17 concealed weapon permits allowed." And the

18 concealed weapons permit holder has a duty --

19 having a concealed weapons permit must check the

20 sign on the door before he goes in.

21 COMMISSIONER CASTRO: Here's what I'm

22 going to do. We're technically out of time, but I

23 want to -- two commissioners -- Commissioner

24 Kladney you need to wrap it up, I've got two

25 commissioners who want to ask two brief questions,
1 97

2 Yaki and Narasaki.

3 So Commissioner Kladney if you could

4 just finish your questioning and then I'll go to

5 Commissioner Yaki and then Commissioner Narasaki

6 and then we'll conclude the panel.

7 COMMISSIONER KLADNEY: I would just --

8 Mr. Chairman, I'd just like to let the other

9 panelists comment on Representative Rutherford and

10 my question if they could do so briefly.

11 MR. AHMAD NABIL ABUZNAID: This is

12 Ahmad Abuznaid. I would just like to say that the

13 issue here isn't concealed carry permits, the fact

14 of the matter is even without that provision

15 requiring concealed carry permit holders to not

16 drink alcohol the gentleman could just step

17 outside of the bar and then unload a clip into,

18 you know, whatever person he was deemed afraid of.

19 So I think that, you know, we can get

20 lost in discussing permits and whatnot, but the

21 issue here is stand your ground and the fact that

22 it's unreasonable.

23 REPRESENTATIVE RUTHERFORD: That would

24 be neither stand your ground nor self-defense.

25 You cannot walk out and shoot --
1 98

2 MR. AHMAD NABIL ABUZNAID: But --

3 REPRESENTATIVE RUTHERFORD: -- that would

4 not be stand your ground.

5 MR. AHMAD NABIL ABUZNAID: -- but if the

6 altercation spilled out to the exterior of the bar

7 and you were in fear of your life --

8 REPRESENTATIVE RUTHERFORD: -- if you're

9 still getting beat up and assaulted outside of a

10 bar, from the inside all the way to the outside,

11 you should probably defend yourself.

12 MR. AHMAD NABIL ABUZNAID: But also

13 stand your ground doesn't require that you're beat

14 up. So the gentleman could be walking towards

15 your direction yelling obscenities at you --

16 REPRESENTATIVE RUTHERFORD: Why is it

17 that we are required --

18 COMMISSIONER CASTRO: Commissioner Yaki

19 has a question and then we'll go to Commissioner

20 Narasaki and conclude the panel. Thank you.

21 Commissioner.

22 COMMISSIONER YAKI: Yes, thank you very

23 much. I remain -- I guess I remain troubled by

24 some of what has been said here today. I don't

25 think -- I think we do actually have an obligation
1 99

2 to nickel-and-dime some of these statutes because

3 we're here because Trayvon Martin and Jordan Davis

4 were victims of these statutes and those people

5 were not nickel-and-dimed.

6 I'm not going to ask a question I'm just

7 going to make a very brief statement.

8 Mr. Rutherford, I appreciate your passion. I

9 understand that you believe that what you're doing

10 is in the best interest of African Americans who

11 live in fear of walking the streets. But what we

12 have here is data that shows that in all states

13 that have stand your ground homicide rates go up

14 rather than go down.

15 The data shows that if you are an

16 African American claiming stand your ground

17 defense you are much less likely to get it granted

18 than if you are a white person claiming it and if

19 your victim is black.

20 You talked about whether or not Trayvon

21 Martin would be able to have used that, but

22 Trayvon Martin is dead. And he was not able to

23 say "I was acting in self-defense," when George

24 Zimmerman approached him.

25 The problem with all this is that people
1 100

2 are dying. More people are dying than would have

3 died before. In your situation that you talked

4 about if someone throws a punch at me I have the

5 right, according to you, to take out a gun and

6 shoot him.

7 Now if the person -- if I think the

8 person's gonna throw a punch at me I have the

9 right to take out a gun and shoot him. If I -- if

10 the person threw a punch at me and missed and we

11 walk outside and I see him walking toward me I can

12 take out my gun and shoot him.

13 In all of these cases someone gets hurt,

14 someone dies. And you're essentially giving

15 someone who is not trained like a police officer,

16 as Mr. Kladney was saying. Does not understand

17 how to judge a situation, has not taken

18 proficiency courses in shooting so as to minimize

19 casualties to civilians, and yes, you're right,

20 cops do sometimes miss and they shoot the wrong

21 people. But for the most part they're trained,

22 and we have an expectation that they should be

23 trained to not sort of spray their gun anywhere.

24 And you're essentially giving ordinary

25 citizens the right to draw and fire wherever they
1 101

2 may be at any specific place and time.

3 That's the problem with stand your

4 ground is that the castle is no longer the castle.

5 The question of reasonableness when someone breaks

6 into your house is a lot different than when

7 you're in an open theater or in an auditorium such

8 as this, the judgments are a lot different and

9 the result is that someone dies.

10 And the stats show people die. More

11 people are dying -- more people are dying because

12 of this. And as great as you are as an attorney

13 and as expensive as you are of an attorney -- even

14 though you forgot your tie today -- to, you know,

15 in terms of defending people who you believe were

16 asserting their rights -- and I agree that they

17 should be able to assert their rights if it was

18 self-defense. Stand your ground is different from

19 self-defense because the way it works, the way --

20 the situation in which it occurs, the environment

21 in which it happens is much different than if

22 you're inside your home or if you're in absolute

23 imminent fear of someone else taking a gun at you

24 and the gun is out there and you have to do

25 something.
1 102

2 Those are the exceptions that prove the

3 rule of the old common sense Castle Doctrine. But

4 stand your ground takes that and perverts that to

5 an extent that I am concerned about. And

6 especially for African Americans who do not get

7 the benefit of it as white defendants do. Who are

8 the victims of it more than whites are. I think

9 those are the things that I'm concerned about.

10 COMMISSIONER CASTRO: Thank you,

11 Commissioner Yaki.

12 Commissioner Narasaki, you have the last

13 question.

14 COMMISSIONER NARASAKI: Thank you.

15 I just really want to thank all of the

16 panelists for the discussion, it's been very

17 illuminating. And it's clearly a very passionate

18 subject for everyone.

19 So my understanding, and I appreciate

20 Commissioner Heriot's efforts to try to untangle

21 the issue of how stand your ground is different

22 from the Castle Doctrine. I want to make sure I

23 understand it correctly.

24 So my I understanding is (A), that it

25 gives you more leeway to escalate, it doesn't
1 103

2 require equal force, but you can more quickly

3 escalate.

4 (B), you don't have to be in your home

5 or in the vicinity of your home so that makes it

6 more likely that innocent bystanders, in fact,

7 will be around and more likely to therefore be

8 collateral damage.

9 Three, my understanding is that there is

10 more subjectivity to the fear that's allowed.

11 That it's not a reasonable person standard. But

12 in the case of -- so there was a case of a guy who

13 shot a Chinese American neighbor. The Chinese

14 American neighbor was actually going to his own

15 home next door. And the guy who shot him said,

16 "Well, I was in fear of my life because all

17 Chinese know Karate and can kill me."

18 So that would be his subjective fear.

19 But I hope most of us would not think that was a

20 reasonable person's standard -- meet that

21 standard.

22 So if this is all -- so I want to (A),

23 ask Mr. Abuznaid, is this a correct understanding?

24 And (B), the argument seems to be

25 because we're here -- the reason the commission is
1 104

2 looking at this is because there's a question

3 about equal protection under the law and whether

4 in fact these laws are victimizing African

5 Americans, are being applied differently in a way

6 that hurts minority communities.

7 But the argument that seems to be being

8 made by some is that in fact it is helping African

9 Americans, so I want to know since you are clearly

10 not in support of the law where -- how -- where's

11 the conflict in that?

12 How is it that it helps -- does it help

13 enough to change your mind?

14 MR. AHMAD NABIL ABUZNAID: So to your

15 first question, that list did seem accurate. And

16 I would just add in addition that stand your

17 ground eliminated the duty to safely retreat,

18 which is what we had in Florida. And I think for

19 people that had issues with self-defense that

20 would have been the change that I would have

21 advocated for, just simply require someone to

22 safely retreat if possible.

23 To your second question I think, you

24 know, with everything going on in Ferguson, with

25 everything going on in the State of Florida, young
1 105

2 black and brown men and women don't feel safe.

3 Now whether that is because of police brutality

4 and excessive force, or vigilantes, or people like

5 Michael Dunn who don't like thug or quote-unquote

6 "thug music," which is hip hop.

7 People are being subjected to being

8 threats of society when they really just want to

9 live. They really just want to prosper peacefully

10 in their communities. Trayvon Martin was walking

11 to his father's home. I mean, if we are to accept

12 that in any day in today's society a kid can get

13 gunned down walking to his father's home simply

14 because another man has the right to stand his

15 ground, I think we've lost all faith in our

16 society.

17 I think that, you know, the example was

18 drawn up by the commission member about being

19 punched in the face, now, what would you teach

20 your child is what I would implore folks to think

21 about. Would you teach your child to punch back

22 or to fire their gun off? Or do you teach your

23 child, "You know what the person that punched you

24 was wrong, we're a society that does not condone

25 violence, we condemn it. And we'd like to have a
1 106

2 peaceful society."

3 Now maybe that's Utopian and could not

4 exist, but I -- I just say that we've seen it now

5 -- bubble into our schools. People are in fear of

6 their lives and they deserve better and we should

7 do better.

8 COMMISSIONER CASTRO: Thank you,

9 gentlemen for a very engaging panel, we appreciate

10 it. We went over a little time, but it was very

11 informative.

12 Yes, Senator.

13 SENATOR SMITH: Mr. Chair, just two

14 quick things if I can --

15 COMMISSIONER CASTRO: Quickly.

16 SENATOR SMITH: -- very brief.

17 Commissioner Heriot brought up a great point,

18 there is a thin line between stand your ground and

19 common law self-defense and we're getting blurred

20 in that line.

21 My only point would be that with the

22 invocation of stand your ground and cases that

23 subsequent -- you're going to see more and more of

24 these cases. Between 2005 and Trayvon Martin

25 there are very few cases. But now people have in
1 107

2 their mind, at least in Florida, that they have

3 this great "get out of jail free card." So we're

4 working towards stopping what's coming not what

5 has happened.

6 And lastly, the point that was made

7 earlier about data collection and if that's

8 something that you can address that would be

9 tremendous, of maybe requiring these states to do

10 data collection. Although I want other changes to

11 stand your ground, but God bless you if you can

12 get states to at least keep the data and that will

13 help your job and my job as we go forward.

14 COMMISSIONER CASTRO: Thank you,

15 Senator. That will be an excellent

16 recommendation.

17 Thank you all and we appreciate your

18 time. So as this panel cycles off we ask panel

19 two to begin to come forward.

20 Commissioners will take a five minute

21 break as the panel begins to assemble.

22 (Midmorning recess was taken. End of

23 Volume I, proceedings resume in Volume II.)

24

25
1 108

2 CERTIFICATE OF REPORTER

3

4

5 STATE OF FLORIDA

6 COUNTY OF POLK

7

8 I, Kathy Wescott, Certified Shorthand

9 Reporter, do hereby certify that I was authorized to

10 and did report in Stenotypy and electronically the

11 foregoing proceedings and evidence in the captioned

12 case and that the foregoing pages constitute a true and

13 correct transcription of my recordings thereof.

14 IN WITNESS WHEREOF, I have hereunto affixed

15 my hand this 28th day of October, 2014, at Lakeland,

16 Polk County, Florida.

17

18

Kathy Wescott, CSR

19 Court Reporter

20

21

22

23

24

25
1 1

2

3 THE UNITED STATES COMMISSION ON CIVIL RIGHTS

4 BRIEFING ON STAND YOUR GROUND

5

6

7

8

9

10 Place: The Rosen Hotel

9700 International Drive

11 Orlando, Florida 32819

9:00 a.m. - 3:30 p.m.

12

13

Date: October 17, 2014

14

15

Reported by:

16

Kathy Wescott, CSR

17

18

19

20

(Volume II, Pages 1 through 99, a.m. session, Panel

21 Number 2)

22

23

24

25
1 2

2

3 Present:

4 Commissioner Michael Yaki

5 Commissioner Roberta Achtenberg

6 Marlene Sallo

7 Commissioner Marty Castro (Chairman)

8 Commissioner Karen K. Narasaki

9 Commissioner Patricia Timmons-Goodson

10 Commissioner Gail Heriot

11 Dr. Sean Goliday

12

Appearing by phone:

13

Commissioner David Kladney

14

Commissioner Peter Kirsanow

15

16

17 Panel Number 2:

18 David Harris

19 William Krouse

20 John Roman

21 Arkadi Gerney

22 Attorney Benjamin Crump

23 Katheryn Russell-Brown

24

25
1 3

2

3 COMMISSIONER CASTRO: If we can get the

4 commissioners to come back up to the podium,

5 please.

6 Okay. I'm going to call the second

7 panel to order. Let me briefly introduce the

8 panelist's in the order in which they will speak.

9 Our first panelist is David Harris, Law

10 Professor at the University of Pittsburgh.

11 Our second panelist is William Krouse

12 from the Congressional Research Service.

13 Our third panelist is John Roman of The

14 Urban Institute.

15 Our fourth panelist is Arkadi Gerney of

16 the Center for American Progress.

17 Our fifth panelist is Benjamin Crump --

18 who is just taking his seat now -- attorney for

19 Trayvon Martin, Jordan Davis, and the Michael

20 Brown families.

21 And our sixth and final panelist is

22 Katheryn Russel-Brown, Law Professor at the

23 University of Florida Law School.

24 I will now ask each panelist to swear or

25 affirm that the information that you are about to
1 4

2 provide to us is true and accurate to the best of

3 your knowledge and belief. Is that correct?

4 PANELISTS: Yes.

5 COMMISSIONER CASTRO: Okay. As you know

6 you'll have eight minutes, each of you. So

7 Professor Harris, please proceed.

8 MR. DAVID HARRIS: Thank you very much.

9 I want to tell the commission I appreciate you

10 having this hearing. And appreciate your

11 invitation.

12 Stand your ground laws are the most far

13 reaching changes we have had to self-defense law

14 in this country in many, many decades.

15 The bottom line for these laws is that

16 they lower the potential legal cost of using

17 deadly force. There's a lot of talk already about

18 the empirical evidence and there will be more. I

19 won't go into that right now.

20 I've been asked to come here to talk

21 about implicit bias, which was mentioned earlier

22 by Commissioner Yaki and some others.

23 I want to ask what role, if any, would

24 implicit bias have in magnifying, changing,

25 focusing, the effect of stand your ground laws?
1 5

2 Unconscious, unintended, but very real bias, how

3 would that play into stand your ground laws in

4 practice?

5 Let's first start by defining implicit

6 bias. When we think about racism, typically, we

7 think about, sort of, the old school, in your

8 face, calling names sort of racism. But the last

9 20 years of research into the way people think has

10 really changed the whole way that we should be

11 thinking about racism as well.

12 What this has told us, this research

13 over the last 20 years, is that what scientists

14 call "implicit bias" is actually far more common

15 than any kind of old school sort of racism.

16 When we talk about implicit biases, what

17 we are talking about is unconscious favorability

18 or favoritism towards whites and a negative

19 feeling toward blacks, just to use the same binary

20 that we've been using here all morning.

21 It is unconscious, these biases are not

22 known to the people in whom they operate. They

23 operate and exist even in people who have

24 perfectly strong egalitarian conscious beliefs and

25 would articulate them to you.
1 6

2 They operate without the knowledge of

3 those who have them and they do -- they can affect

4 actions.

5 So how do we know this? I'll tell you

6 just a little bit about it, try to put it in a

7 nutshell. We've been -- there's a lot of research

8 on this subject, but by far the most prominent

9 research involves a test called "The Implicit

10 Association Test" or IAT.

11 This test involves a use of a computer

12 and the viewing of partial pictures of faces along

13 with positive words and negative words.

14 When I say "partial pictures of faces,"

15 I do have a little sample here. I've got copies

16 -- I'm sort of old school myself, so no PowerPoint

17 on this I'm afraid. I'll be glad to pass them

18 around.

19 You can see it's from the base of the

20 forehead, the eyes, the nose, and just below the

21 nose. It's enough of the face so that it's

22 clearly recognizable whether the person being

23 pictured is either African American or European

24 American.

25 What happens here is that test takers
1 7

2 see on the screen, they see a face and a word and

3 they are asked to make associations by clicking on

4 a computer key. It's really not that complicated.

5 At first they are -- please -- at first they are

6 asked to associate a white face with a positive

7 word or concept. And a black face with a negative

8 word or concept.

9 And when they click the computer is

10 measuring the speed at which they click and the

11 differences might be in milliseconds, but a

12 computer is perfectly capable of measuring things

13 at that level.

14 They are then asked, the test takers

15 are, to click when you have an association between

16 a white face and a negative concept, a black face

17 and a positive concept.

18 After all of the clicking and testing is

19 done what you end up with is sort of a measurement

20 of the strength of associations in this particular

21 person’s thinking.

22 The test has been taken by millions of

23 people. I think the last thing that I read was 13

24 or 14 million. You can take it online. I have.

25 And your data is used as part of the overall
1 8

2 results. You are asked for demographic data about

3 yourself, but you are not identified.

4 The results are that you get a

5 measurement of the test taker’s thinking. Does it

6 take the test taker longer to click on

7 associations between black and positive words than

8 it does white and negative words, and vice-versa.

9 And it produces a measurement of the

10 degree of bias that a person has toward whites,

11 toward blacks, positive or negative.

12 The results of these tests -- this

13 testing I think always surprises people a little

14 bit -- before they've heard of it before.

15 75 percent of all test takers over these

16 millions of tests taken exhibit a bias to one

17 degree or another against blacks and for whites.

18 It is -- this bias toward whites, against blacks

19 shows up in 88 percent of all white test takers.

20 But, also, interestingly in about 40 percent of

21 all African American test takers.

22 Now this does not mean, I want to be

23 clear. This does not mean that racism is somehow

24 excused because it's unconscious. It does not

25 mean that because everyone shares these
1 9

2 characteristics, it's fine. Or that the victims

3 are somehow to blame for racist treatment. And it

4 certainly does not mean that the impact of

5 whatever racist treatment there might be is any

6 less because it comes from an unconscious place.

7 What it does mean is that racial biases

8 need to be understood as being much more common

9 and found in many more people than we used to

10 think. Even if they're unaware of it the effects

11 can be the same.

12 Now let's talk briefly about effects in

13 the remaining time. Can this affect conduct, and

14 especially within the context of something like a

15 stand your ground law. And the answer to it is,

16 yes. Even though these biases are unconscious

17 they operate.

18 Implicit -- excuse me. Implicit bias,

19 the research on this ties neatly into work done by

20 social psychologist's about what are called

21 heuristics. Heuristics is just a fancy word for

22 rules of thumb. We all use rules of thumb and in

23 psychology the researchers think of this as ways

24 to make quick decisions. Have a rule that allows

25 you to make very quick decisions in an environment
1 1

0

2 with very low information at a very high rate of

3 speed and to preserve your cognitive resources.

4 So we use heuristics all of the time to make

5 decisions as human beings.

6 When you combine the idea that there is

7 implicit bias and heuristics -- what some of the

8 research has shown -- especially research by

9 Philip Atiba Goff of UCLA, is what he has called

10 the "suspicion heuristic." You have a negative

11 view of blacks for the most part, implicit. This

12 leads to beliefs that blacks are prone to

13 criminality. That they are violent. And there is

14 a lot of other research besides Mr. Goff's that

15 goes in this same direction.

16 So what you get is an automatic very

17 rapid association between blacks, that is not just

18 about negativeness, but also about violence and

19 criminality.

20 Now in the specific context of stand

21 your ground laws what this will mean is that more

22 people will think of black people they meet as

23 dangerous, as criminal, and as violent. And that

24 is going to result in more blacks being the

25 victims in stand your ground shootings. It also
1 11

2 has the other effect of when a white person or

3 somebody goes to court and says, "I stood my

4 ground," and the victim is black, the jury

5 harboring those very same biases will be more

6 inclined to acquit when the victim is black.

7 Thank you very much for your time. I

8 look forward to your questions.

9 COMMISSIONER CASTRO: Mr. Krouse, you're

10 next.

11 MR. WILLIAM KROUSE: Thank you for

12 having me. I have the privilege to work as the

13 Legislative Analyst at the Congressional Research

14 Service housed within the Library of Congress.

15 CRS provides nonpartisan research to Congress.

16 I need to make a small disclaimer here.

17 The views, ideas, and the information that I'm

18 about to present are my own and cannot be

19 attributed back to the Library of Congress or CRS.

20 COMMISSIONER CASTRO: We understand

21 that. Thank you.

22 MR. WILLIAM KROUSE: Thank you. Also

23 this live presentation is not in any way intended

24 to be an evaluation of stand your ground laws.

25 Rather what I'm about to present to you are some
1 1

2

2 very basic baseline statistics. We have data on

3 murder and non-negligent homicides and also on the

4 justifiable homicides.

5 The data are imperfect and are

6 incomplete, but it does tell us some things and it

7 cannot be ignored. So I want to discuss briefly

8 data limitations and definitions and then murder

9 and then justifiable homicides. And I want to

10 stress that this is principally about justifiable

11 homicides by private citizens and not law

12 enforcement officers, also I may give you some

13 preliminary data on both. And then I want to look

14 at interracial and intraracial justifiable

15 homicides that involve blacks and whites.

16 So my two data sources are the Uniform

17 Crime Reports, the FBI vets this data every year

18 and publishes it in the Uniform Crime Reports or

19 Crime in the United States. It's available on the

20 FBI website.

21 Whenever they get a report on a homicide

22 they also go back to the state and local reporting

23 agencies and ask for supplementary information on

24 those homicides and that's published in the

25 supplementary homicide reports.
1 13

2 That information isn't -- isn't

3 available as the Uniform Crime Reports, however,

4 but through the efforts of certain academics it

5 has been – FOIA’d and it's available on

6 the University of Michigan Website.

7 The Supplementary Homicide Reports

8 suffer from certain very serious limitations.

9 One, Florida does not report in a manner that is

10 accepted by the FBI. I think it has to do with a

11 technicality on the offender/victim relationship,

12 familial relationship. And it's just on that

13 point alone according to the Bureau of Justice

14 Statistics that the data is not compatible. So

15 that seems to me something that could be fixed

16 possibly.

17 Other states and localities more

18 importantly do not participate, do not participate

19 fully, and/or only participate intermittently in

20 this Supplementary Homicides Reports Program.

21 Making things more difficult these

22 reports do not always reflect the final

23 disposition of these cases. Like the UCR, federal

24 and travel (phonetic) law enforcements do not

25 report to the -- Supplementary Homicides Report
1 1

4

2 Program.

3 So I just wanted to give you the

4 definitions here. I have one slight mistake here,

5 it should be instead of "murder and non-negligent

6 manslaughter" it should be "non-negligent

7 homicide." At the time I was preparing these --

8 these slides there was a good deal of debate about

9 what exactly non-negligent manslaughter meant or

10 non-negligent homicide.

11 A non-negligent homicide will be a

12 homicide that's not accidental, it's the willful

13 killing of another human being. And then

14 justifiable homicides by a police officer, will be

15 a killing done in the line of duty. And then for

16 private citizen it would be the killing of a felon

17 during the commission of a felony.

18 That's the FBI definition. And so what

19 I'm about to tell you is that when you look at

20 these cases, case by case, you can often make

21 distinctions of your own on whether these

22 definitions would fully meet those cases or not.

23 In the UCR, the justifiable homicides

24 are tabulated separately from murder and

25 non-negligent homicides. So they're two -- in two
1 15

2 different data presentations. However, in the

3 Supplementary Homicide Reports it's all merged

4 together but it's coded so that you can separate

5 them out.

6 So I'm presenting this graph here just

7 to give us the big picture backdrop on murder and

8 non-negligent homicide victim rates. As we can

9 see we had some bumps in the '70s, '80s, and '90s.

10 And then violent crime in murder and firearm

11 related murders trailed off with a couple of bumps

12 in the 2000's.

13 Then I give you the raw data as

14 published by the FBI and Justifiable Homicides.

15 One would think that law enforcement agencies

16 reporting on these matters would be fairly

17 reliable. And it also has it by weapon.

18 We're less confident about the

19 reliability of the data for justifiable homicides

20 as reported by law enforcement agencies, by

21 private citizen. However I want to say that the

22 data that I'm about to present to you on

23 justifiable homicides involving blacks and whites

24 with firearms consists of about 80 to 90 percent

25 of the incidents that are included in this table.
1 1

6

2 So just for comparison sake I thought

3 I'd line up justifiable homicides with murders and

4 non-negligent homicides. And this is for 1987

5 through 2011, you can see that they trended

6 somewhat similarly in the first part of that time

7 period. And then when the murders trailed off the

8 justifiable homicides continued to go up.

9 It has been suggested to me that this

10 one possibility could be, that this is more

11 zealous reporting by law enforcement. And so I

12 just gave it for the shorter time period which is

13 covered more recently with regards to the stand

14 your ground laws.

15 And notice how the bumps in the murders

16 go up tremendously when you shorten your time

17 period. But, again, the justifiable homicides in

18 either category continue to go up.

19 And then these are murders. We can see

20 that most murders are intra -- intraracial when

21 they involve blacks and whites. And that in a

22 small number of cases they're interracial. And

23 these are the justifiable homicides with firearms

24 involving blacks and/or whites. And we can see

25 that blacks and whites avail themselves of
1 17

2 justifiable homicide almost on -- in equal

3 numbers.

4 However, in white-on-black incidents

5 it's a ratio of about 6 to 1, to black-on-white

6 justifiable homicides. That ratio remains about

7 the same, this is the stranger on stranger murders

8 in this slide. And when we look at the ratio of

9 justifiable homicides, white-on-black versus

10 black-on-white, that ratio stays about the same at

11 6 to 1.

12 And we're looking at in any given year

13 white-on-black justifiable homicide incidents they

14 range about from 25 to 30 with a slight increase

15 in the latter five year period.

16 So -- and we see again the cluster of

17 white-on-black along with black-on-black and

18 white-on-white justifiable homicides there.

19 So I wanted to sum this up by saying

20 that if you go to Gary Kleck in Point Blank, he

21 estimates that we under-report justifiable

22 homicides by private citizens by about two, three,

23 maybe four-fold. So you're looking at, over this

24 10 year period, about 250 cases or 25 cases a year

25 of white-on-black justifiable homicides.
1 1

8

2 And in the interest of determining what

3 sort of circumstances are going on here I would

4 suggest that you might want to look at each one of

5 those cases on a case by case basis. But if you

6 were to look at comprehensive data you might be

7 looking at anywhere between 50, 75, to 100 cases

8 per year. So if you did it for a 10 year period

9 that'd be a thousand cases.

10 I have 10 seconds left and I just want

11 to --

12 COMMISSIONER CASTRO: You've gone over,

13 but it's all right. Just wrap it up real quickly.

14 MR. WILLIAM KROUSE: Okay. The

15 Supplementary Homicide Reports data is available

16 as I said on the University of Michigan website.

17 And that concludes my presentation. Thank you.

18 COMMISSIONER CASTRO: Thank you,

19 Mr. Krouse.

20 Mr. Roman, you have the floor.

21 MR. JOHN ROMAN: Thank you very much. I

22 want to thank the commission for accepting my

23 testimony today. I want to apologize to the

24 commission that my tie did not make it down here

25 with me --
1 19

2 COMMISSIONER CASTRO: What is it with

3 the ties -- is there a tie thief around here?

4 MR. JOHN ROMAN: -- I apologize for the

5 lack of decorum. And the ties in the lobby by the

6 way are totally inappropriate.

7 So I work for The Urban Institute which

8 is a non-partisan non-profit social and economic

9 policy research organization. We were founded in

10 the '60s to try an add evidence to debates about

11 important social welfare questions.

12 I've worked in the crime and justice

13 center at The Urban Institute since -- for 17

14 years. So this is exactly the kind of issue that

15 we would like to weigh in on and bring data to the

16 question to see if we can facilitate a better

17 understanding of what we're trying to accomplish

18 here.

19 I'm going to talk about the same data

20 that Bill talked about, we used it in our

21 analysis, so I thank you very much for using four

22 minutes of your testimony that I don't have to

23 explain what the data are.

24 But, I want to -- I want to make a point

25 before I get into our analysis, which we did a
1 2

0

2 couple of years ago, and that we've revisited a

3 couple of times since then and it seems to be very

4 stable and shows some of the things -- many of the

5 things that Bill suggests.

6 And that -- that is the idea here that I

7 think is under-reported, which is that the goal of

8 a stand your ground law is to solve a social

9 problem. And the social problem it portends to

10 solve is that people are getting convicted for

11 killing people when they were actually acting in

12 self-defense.

13 There is no evidence to support the idea

14 that that is actually ongoing. If you look at the

15 exoneration literature you cannot find -- you

16 might be able to find a couple of cases where

17 somebody has been exonerated when they act in

18 self-defense, but that's not why people are

19 wrongfully convicted, they're wrongfully convicted

20 for lots of other reasons.

21 So we set out to solve a problem that we

22 don't even have any evidence was ever a problem to

23 solve. So our first question of the day is, does

24 stand your ground achieve its objective? Do more

25 people who commit a crime are they found to have
1 21

2 been justified in committing that homicide?

3 So we asked that question. And then we

4 asked the question, is there an unintended

5 consequence of these laws that people who act in

6 self-defense or found to have acted as

7 justifiably, ah, committing homicide, if there's

8 racial discrepancies in the rates at which those

9 justifiable homicide findings occur.

10 And then we want to ask if there are

11 characteristics of people that differentiate them.

12 Characteristics of the case that differentiate

13 them with respect to the finding that a homicide

14 is justifiable.

15 And I just want to make a couple of

16 comments on the Supplementary Homicide Data. We

17 used the same data that Bill talked about, 2005 to

18 2010, is our primary report. We've revisited it

19 since then and added new data as it's become

20 available and the findings don't really vary that

21 much. So the one that we've documented the best

22 is the 2012 studies. And that's what I want to

23 talk about today.

24 In the 2005 to 2010 study there were

25 83,000 homicides in that six year period. In
1 2

2

2 order to say anything about the race of the victim

3 and the race of the offender, of course we have to

4 know something about the offender. And we don't

5 always know who did it so we can't always say

6 that, so we end up with the data set of about

7 53,000 people.

8 The Supplementary Homicide Data are

9 limited in some important ways that are worth

10 discussing. One is that, like Bill said, we have

11 to rely on how local law enforcement codes these

12 things and we have no way to independently

13 validate whether what they've -- the decisions

14 that they've made before a verdict occurs are

15 accurate or not. So we sort of have to trust

16 them.

17 There's a lot of missing data like I

18 said. And then there's some very important

19 caveats to be made about context that I want to

20 revisit at the end, which will be in four minutes.

21 So what we find is that in two and a

22 half percent of cases where there's a homicide,

23 the homicide is ruled to be justified. One

24 comment I do want to make is when we talk about

25 white-on-white, white-on-black, black-on-white, or
1 23

2 black-on-black, I received a lot of criticism

3 about using those definitions because of course

4 Mr. Zimmerman has some Hispanic origins and people

5 said that that's an important matter. The FBI

6 data are coded according to the guidelines from

7 the census bureau and so there is no ethnicity in

8 there, there's just simply race. So he would have

9 been coded as white.

10 There are other important matters in the

11 Supplementary Homicide Report that we wanted to

12 control for when we did our more expansive

13 statistical analysis like whether a firearm was

14 used, whether there were multiple victims and

15 offenders, whether these people were strangers or

16 not, gender, age.

17 So what do we find? So -- my apologies.

18 So we find some really interesting things, so what

19 we find is -- the first question is, is stand your

20 ground effective at doing what it intends to do,

21 which is to increase the rate at which homicides

22 are ruled to be justified. And it turns out that

23 it is.

24 So the overall rate at which homicides

25 are ruled to be justified in the data that we look
1 2

4

2 at is two and a half percent. It's 3.7 percent in

3 stand your ground states. And 2.1 percent in

4 non-stand your ground states.

5 And I just want to make one quick caveat

6 about what I mean by a stand your ground state.

7 We looked at 6 years of data and lots of states

8 went from being a non-stand your ground state to

9 being a stand your ground state during the period

10 that we examined. We think about each year and

11 state independently.

12 So if a state is a non-stand your ground

13 state in 2005 and 2006, passes a law in 2007, in

14 those first 3 years it's in the non-stand your

15 ground grouping. And in the last 4 years it's --

16 3 years it's in the stand your ground grouping --

17 because I think that issue has come up when people

18 have been critical of this study.

19 Okay. And then we get into the

20 unintended consequences of whether there are

21 racial disparities that are associated with this

22 change -- whether there are racial disparities

23 with the application of the finding of justifiable

24 homicide and then whether it changes over time.

25 The first question is -- is what is the
1 25

2 rate at which black-on-black homicides are ruled

3 to be justified? It's 2.4 percent. The overall

4 average is 2.5 percent. It's no difference.

5 White-on-white it's 2.2 percent, compared to 2.5

6 percent, basically no difference.

7 In homicides where the shooter is black

8 and the victim is white, those are ruled to be

9 justified 1.2 percent of the time. In cases where

10 the shooter is white and the victim is black those

11 are ruled to be justified 11.2 percent of the

12 time. Ten times more likely if the shooter is

13 white and the victim is black, than if the shooter

14 is black and the victim is white.

15 If you look at the data before and after

16 a state becomes a stand your ground state you see

17 those same discrepancies. You see white-on-black

18 homicides are justified 9.5 percent of the time.

19 And black-on-white homicides are justified 1.1

20 percent of the time.

21 After a state becomes a stand your

22 ground state the disparity gets even bigger.

23 Black-on-white homicides are ruled to be justified

24 at about the same rate they were in non-stand your

25 ground states, 1.4 percent compared to 1.1.
1 2

6

2 White-on-black homicides are ruled to be

3 justified 16.8 percent of the time, where they

4 were 9 percent before.

5 So I just want to say that we ran a

6 bunch of really complicated statistical analyses

7 that I won't bore you with to try and make sure

8 that we weren't confusing the effects of other

9 things like the type of firearm used, or their

10 age, or the, you know, other things, and we find

11 the exact same thing. When we add additional

12 years to the data, we find the same thing.

13 So if -- you know, so the question on

14 the table is, in 9 seconds is this, do these

15 disparities -- could these disparities be

16 explained by processes other than racial

17 discrimination? And the answer is if you look at

18 other racial disparities across the system is --

19 these disparities are so much bigger than other

20 disparities in terms of sentencing, and death

21 penalty, and arrest rates, and stop and frisk's

22 that it's really hard to believe that that is

23 true.

24 Thank you very much. I look forward to

25 your questions.
1 27

2 COMMISSIONER CASTRO: Thank you,

3 Mr. Roman.

4 Mr. Gerney.

5 MR. ARKADI GERNEY: Thank you. First of

6 all I'd just like to thank the commission for

7 having me here today and accepting my testimony.

8 My name is Arkadi Gerney, I'm with The

9 Center for American Progress, a think tank, based

10 in Washington.

11 My testimony is going to focus on the

12 intersection of stand your ground laws with lax

13 laws around concealed carrying of firearms that

14 put guns in the hands of people who have prior

15 criminal histories or run-ins with law

16 enforcement.

17 And I'm going to start by illustrating

18 one particular case.

19 In 2005 a young Florida man was -- went

20 to a bar with a friend of his. His friend was

21 arrested for underage drinking and -- and that man

22 became agitated according to police reports, and

23 pushed a police officer and was ultimately charged

24 with two felonies.

25 Those felony charges were ultimately
1 2

8

2 reduced and then later waived when the defendant

3 entered a court-ordered alcohol education program

4 and a court-ordered anger management class.

5 One month later he had a -- issues with

6 his fiancée and that led to another run in with

7 law enforcement. And ultimately a temporary

8 restraining order filed against this person.

9 Under federal law, had the court issued

10 a permanent domestic violence restraining order

11 this man would have been barred from purchasing or

12 possessing a firearm. But it was a temporary

13 order and in most states that is not a bar to

14 purchasing a firearm. And this man in fact did

15 purchase a firearm. And in 2009 obtained a gun

16 carry permit from the State of Florida.

17 Let's jump ahead to 2013. In 2013 this

18 same man had an incident where according to police

19 reports he threatened his estranged wife with a

20 firearm. She ultimately declined to press

21 charges. Two months later in 2013 the same man

22 was arrested and charged with felony assault for

23 pointing a shotgun at another woman, his

24 girlfriend at the time, during an argument.

25 And then just last month this same man
1 29

2 got in an argument with a driver and threatened to

3 kill him. That driver called the police, but

4 ultimately also declined to press charges.

5 This man did one other thing during this

6 period which is, on February 26, 2009 he shot and

7 killed an unarmed teenager named Trayvon Martin.

8 So George Zimmerman's history with

9 firearms, run-in's with the law, are interesting.

10 However none of these incidents resulted in a

11 criminal conviction for Mr. Zimmerman. And under

12 federal law this pattern of incidents is not

13 sufficient to bar Mr. Zimmerman from possessing

14 firearms.

15 But remarkably, none of these incidents

16 and not these incidents in their totality have

17 rendered George Zimmerman ineligible to have a

18 special license from the State of Florida to carry

19 a concealed firearm. A license that he has to

20 this day.

21 In some states the temporary restraining

22 order, the lengthy history of run-ins with the

23 law, of the shooting of Mr. Martin would have been

24 sufficient for that license to be revoked or never

25 have been issued in the first place. But not in
1 3

0

2 Florida.

3 So the trial -- Mr. Zimmerman and his

4 acquittal, I think leaves some -- has certainly

5 raised questions about stand your ground laws.

6 And as John, and others on this panel and the

7 panels that you'll hear before you will talk

8 about, I think, particularly two potential effects

9 of stand your ground laws. And there's a growing

10 body of evidence behind those effects, which is

11 that they seemed to increase lethality and there

12 seems to be a racially disparate impact in how

13 they're applied.

14 But this other body of law -- this body

15 of law that put the gun in Mr. Zimmerman's hands

16 in the first place, this body of law that made him

17 feel authorized to be a self-appointed armed

18 community watchman is something that demands

19 examination as well.

20 And in Florida we know that in stand

21 your ground cases 63 percent of the defendant's

22 used firearms to kill their victims. Stand your

23 ground doesn't only apply to firearms. You can

24 defend yourself under stand your ground laws or

25 claim self-defense under stand your ground laws
1 31

2 through any means, but we know from all kinds of

3 evidence that firearms increases the lethality of

4 that attempt at self-defense.

5 And we know that in Florida 1 in 3

6 people who committed a homicide using -- and used

7 the stand your ground defense had previously been

8 charged with committing a violent crime. So the

9 archetype of the good guy with the gun, which does

10 appropriately apply to most concealed carry permit

11 holders, most concealed carry permit holders do

12 not have prior run-ins with the law. Most

13 concealed carry permits do not have a record like

14 Mr. Zimmerman's, does not apply to all concealed

15 carry permit holders.

16 And different states have very, very

17 different processes for evaluating who should get

18 this special license to carry a gun.

19 In the strongest laws the states have

20 given the licensing authority, typically a local

21 law enforcement agency, very broad discretion to

22 determine based on the arrest record and other --

23 and other indicators whether or not someone should

24 get a concealed carry permit.

25 Additionally some states provide some
1 3

2

2 limited discretion to the licensing authority to

3 issue or revoke a permit based on a certain --

4 certain narrower categories of discretion. And

5 most states apply some additional categorical

6 prohibitions that go beyond the federal

7 prohibitions on gun possession.

8 A number of states, at least, exclude

9 people convicted of misdemeanor, crimes of

10 violence, at least, if those convictions were

11 recent. But not all states do that.

12 And what we know and -- or what I would

13 leave you with is that it's not -- you know, the

14 question before you is not whether someone should

15 have a right to self-defense. We've had that

16 right through common law for hundreds of years in

17 this country. The question before us is not

18 whether Americans should be able to get a permit

19 to carry a concealed firearm.

20 In 1980 there are 18 states had no

21 concealed carry, today all 50 states have some

22 process for issuing concealed carry permits and

23 some capacity for people to get them. All 50

24 states.

25 The question is, what should the scope
1 33

2 of the self-defense law be? Does it need to go

3 beyond the traditional scope? And who should get

4 that permit to carry a concealed gun?

5 Because when you put it together and

6 you're putting guns in the hands of people who

7 have clear -- a clear pattern and practice that

8 suggests that they may create a risk to public

9 safety, and you're reducing the threshold to use

10 lethal force, more people are going to die.

11 COMMISSIONER CASTRO: Thank you,

12 Mr. Gerney.

13 Mr. Crump.

14 MR. BENJAMIN CRUMP: Thank you to the

15 commission for allowing me to testify this

16 morning. And I apologize that my testimony is not

17 in PowerPoint presentation. My staff has been

18 very busy up in Ferguson, Missouri. So please

19 accept my apologies for that, but we will submit

20 the testimony that I present to you in a very

21 short fashion.

22 I want to talk as the attorney for

23 Trayvon Martin, as well as Michael Giles, two real

24 individuals. Real life individuals. Young

25 African American men who have been severely
1 3

4

2 affected by the stand your ground laws.

3 And I want to talk about, as an

4 attorney, the application of those laws. And I

5 want to talk about it from three frames of

6 reference.

7 Number one, from a constitutional

8 perspective. Number two, from a judicial

9 perspective. And number three, from a societal

10 perspective.

11 But I want to begin by borrowing what

12 Mr. Roman said about stand your ground, because as

13 I've said in many, many, occasions stand your

14 ground was a solution looking for a problem.

15 There was nothing wrong with self-defense. It had

16 operated for over 200 years just fine. There was

17 no need, and to this day, still there's no need

18 for the stand your ground law.

19 So we start with the constitutional

20 application of how this law has been arbitrarily

21 applied. Before the law's passage there was an

22 average of 12 justifiable killings per year.

23 Since stand your ground passed that average has

24 grown to 36. To date 32 states have passed

25 similar laws boosted by the National Rifle
1 35

2 Association and the conservative corporate backed

3 American legislative exchange counsel -- Alec

4 (phonetic).

5 Since the shooting of Trayvon Benjamin

6 Martin the law’s constitutionality is being

7 questioned.

8 Now the argument is that one has the

9 right to defend oneself in the face of imminent

10 danger and is treated as constitutional in nature.

11 I, along with Miss Lucia McBath, who was supposed

12 to appear before you, have joined forces with some

13 other lawyers to bring a constitutional challenge

14 in the State of Georgia to stand your ground.

15 And what we are looking at in the

16 simplest sense of the word, is that the law is

17 unconstitutionally vague and warrants its

18 enforcement prohibited by a legal injunction.

19 Because what's at issue is what constitutes a

20 reasonable fear?

21 It is without question that the

22 determination of reasonableness of ones fear and

23 the implication of self-defense will differ an

24 application if the decedent is an unarmed, elderly

25 white woman as opposed to an unarmed young black
1 3

6

2 man, our complaint states.

3 Does the reasonable person stand up with

4 regard to the use of self-defense when an

5 individual is standing one’s ground offers

6 different levels of protection to individuals

7 based upon their race.

8 And I don't want to read our whole

9 complaint, but I'm picking out parts that I think

10 are pertinent.

11 By not defining what actions create a

12 reasonable perception justifying the use of deadly

13 force the act potentially deprives all of

14 Georgia's citizens of the right to life without

15 due process of law and contravention of the 14th

16 amendment of the United States Constitution, as

17 the law is so vague as to not apprise a person of

18 common intelligence of the bowels of lawful

19 behavior.

20 By creating a right to kill based upon

21 an individuals reasonable fear without defining

22 what circumstances would demonstrate reasonable --

23 the act will potentially deprive individuals of

24 their lives without due process of the law, as

25 reasonable is not defined there is no way for an
1 37

2 individual to comport his actions within the

3 confines of the law and that's to prevent being

4 slayed due to reasonable fear of another.

5 I submit to you ladies and gentlemen of

6 this commission, it has been longstanding in the

7 courts of America -- we go back to Bernard Goetz

8 in New York, and the People-v-Goetz, cite 68 New

9 York 2nd District. Courts around the country have

10 accepted that race of an individual is relevant

11 evidence in determining the reasonableness of a

12 claim of self-defense.

13 So what do parents, American citizens,

14 of little black and brown children tell them when

15 they are confronted with people like Bernard Goetz

16 or anybody else as it relates to the

17 reasonableness of you being a threat.

18 You better fear -- the courts have said

19 that you can -- that is a factor. And so I move

20 on to the judicial application in consideration of

21 my time.

22 Stand your ground is a pretrial motion.

23 A pretrial motion. When you look at how it was

24 applied in the Zimmerman case, they said, "We're

25 not going to argue stand your ground." We're not
1 3

8

2 going to bring it up -- first they said they

3 would, and then they said, "No, no, we're not

4 going to argue it." Because if it's applied the

5 way that it's supposed to be applied you bring it

6 up as a pretrial motion and it's before the trial

7 ever begins. If you win it, you win it. You go

8 home, there is no civil immunity attached to you

9 or anything, you are completely exonerated.

10 But if you lose it you cannot bring it

11 up again during the course of the trial. You

12 can't wait 'til the jury instruction and say, "Oh,

13 you have a right to stand your ground." That's

14 why it's unconstitutionally vague from a judicial

15 perspective.

16 Thirdly, and lastly, what my grandmother

17 says is, "The real life perspective of how we

18 apply these laws."

19 Trayvon Benjamin Martin didn't get the

20 benefit of stand your ground. Marissa Alexander

21 in Jacksonville, Florida who had an altercation

22 with a documented domestic violent spouse, shot

23 one of the shots in the air is facing 60 years in

24 prison.

25 Michael Giles, even more extreme. A
1 39

2 young 25 year old military officer serving his

3 country. Has served twice in the middle east, was

4 down in Tampa, Florida, came up to Tallahassee

5 visiting his college friends, there was an

6 altercation not involving him at all. The people

7 in the altercation, by their testimony, attacked

8 him. While he was being hit and kicked he pulled

9 the licensed gun that he had a permit to carry,

10 shot him in the leg. Glazed his leg, the gentleman

11 was out the next day. He's says, "Stand your

12 ground it doesn't work for black people." He was

13 sentenced to 25 years in prison.

14 Because of time I don't have the

15 opportunity to go into the facts of how egregious

16 Michael Giles' case is. But he is sitting in

17 prison now for 25 years and Trayvon Martin's

18 killer is walking around free.

19 COMMISSIONER CASTRO: Thank you,

20 Mr. Crump.

21 Professor Russel-Brown.

22 MS. KATHERYN RUSSEL-BROWN: Thank you

23 for the opportunity to meet and speak with this

24 revered and august group with a 57 year history.

25 I want to note that I'm also here in my
1 4

0

2 capacity as the Director for the Center for the

3 Study of Race and Race Relations at the University

4 of Florida.

5 Next year 2015 marks the 150th

6 anniversary of the passage of the 13th amendment,

7 the amendment that abolished slavery. Section two

8 of that amendment empowers Congress to uphold this

9 amendment by legislating what would have been

10 deemed badges and incidents of slavery.

11 And I would suggest that in some ways

12 what we're talking about here today, what the

13 argument is with regard to the impact of race, and

14 in particular -- ah, I'll look at the stand your

15 ground law, is about these -- these legacies and

16 about badges and incidents of this legacy of

17 slavery in this country.

18 I'd like to offer a few recommendations

19 for the commission to consider with regard to

20 addressing issues of racial bias.

21 First of all the need for racial impact

22 statements. Many have written about this, Mark

23 Mower at the Sentencing Commission -- excuse me,

24 at the Sentencing Project in particular, has

25 written eloquently about the need for racial
1 41

2 impact statements. And what I would make the case

3 for is that they shouldn't be limited to one

4 particular type of -- or piece of the justice

5 system, not just with regard to sentencing for

6 example, but that racial impact statements should

7 be required for any new laws. Anything that has

8 to do with sentencing in the criminal justice

9 system that there should be some attempt to look

10 at what the outcome will be when these laws are

11 adopted. And a few jurisdictions, a few states

12 have in fact passed racial impact -- or passed the

13 requirement for racial impact statements,

14 including Iowa was the first.

15 And so we're obviously at a point now

16 where we have stand your ground laws, at least, in

17 33 jurisdictions. At least half of the states

18 have statutes on stand your ground laws so this is

19 -- the law has already -- these laws have already

20 been passed. So what we're really talking about

21 now is post-implementation assessment of the

22 racial impact of these laws.

23 And so I would suggest that at a minimum

24 that any states that are considering stand your

25 ground laws should have to have some kind of --
1 4

2

2 should have to have some kind of -- do some kind

3 of racial impact statements for them.

4 In some ways talking about stand your

5 ground -- and I'm glad that I'm the last person on

6 the panel in some ways because what has come

7 before has been that -- what we're talking about

8 goes beyond just one particular aspect of the

9 criminal justice system, we're not just talking

10 about stand your ground, because stand your ground

11 doesn't operate in a vacuum. We're also talking

12 about policing. We're also talking about race.

13 We're also talking about images of race. We're

14 also talking about history.

15 And so it's important to keep in mind

16 that we're talking about pre-arrests. We're

17 talking about arrests. We're talking about what

18 happens within the justice system about the

19 decision to charge. All the steps along the

20 continuum of the criminal justice system to

21 sentencing to post-sentencing. So all of this

22 matters in terms of needing to take, really, a

23 criminal justice racial census. Needing to

24 consider what the bigger picture is.

25 Earlier this year there was a bill
1 43

2 introduced, the Justice Integrity Act of 2014,

3 HR-3907. And this bill is designed to -- it was

4 designed to increase public confidence in the

5 justice system. And address any unwarranted

6 racial and ethnic disparities in the criminal

7 process.

8 Now this goes into, obviously, detail

9 into the bill, but that racial -- establish a

10 pilot program on racial and ethnic data,

11 defendants and victims. That this information

12 would be gathered and a look at whether or not --

13 and to what degree race impacts outcome in cases

14 and it would end in a report by an advisory group

15 which, I'm sure members of the commission know

16 that this group would include someone from -- from

17 the commission.

18 So I would argue for making this justice

19 integrity, judicial -- Justice Integrity Act Law.

20 That Congress should pass it. That the states

21 should have similar laws and that minimally that

22 there should be some racial impact, racial impact

23 statements should be made for any proposed

24 criminal legislation.

25 Second, we need to have more than a
1 4

4

2 conversation on race. There's a general ignorance

3 about the role that race has played in the

4 development in history of this country. You can

5 graduate from high school in this country without

6 ever learning about seminal aspects of U.S.

7 history involving African Americans in particular,

8 about slave patrols, about black codes (phonetic),

9 about the Klan, about white race riots, about

10 lynching, sundown towns, the Tuskegee Syphilis

11 Experiment, redlining, freedom riders, white

12 Flight, mass incarceration. These are things that

13 young people can graduate from high school and

14 really never have had any detailed discussion,

15 conversation, reading about.

16 And this points to a large scale failing

17 in our system of public schooling. And I think we

18 missed an opportunity to teach on race. So every

19 year or so we experience a major racial incident,

20 typically, a criminal one involving the killing of

21 someone African American or some language used

22 indicating racial hatred. And so there's really

23 -- in some ways a kind of an epic race fail.

24 And we seem to come back to the same

25 place that we're talking about, images of race, in
1 45

2 particular images of African Americans that the

3 perception is that black somehow equals deviants,

4 somehow equals crime, what I call the "criminal

5 black man," one word. And that this is -- this is

6 -- this is where we are.

7 I'd like to point out that in the State

8 of Florida there is a mandate that there's

9 supposed to be some history taught on race in the

10 K through 12 curriculum. And that this should

11 include the history of African Americans,

12 including the history of African people before the

13 conflicts that led to the development of slavery,

14 the passage to America, the enslavement

15 experience, abolition, and the contributions of

16 African Americans to American society.

17 Well, why is this important? Because we

18 can't wait for incidents and be reactive to these

19 incidents involving race, involving images of

20 race, addressing issues of implicit bias after

21 they've happened. We have to do something about

22 what people know about, what they experience with

23 regard to race.

24 So let me just say in conclusion that

25 with regard to one last recommendation and this
1 4

6

2 supports what has been said already by Professor

3 Harris and that is more data, more information on

4 implicit bias. And I would just also like to add

5 that in some of the research there have been --

6 have included studies including police officers

7 who have shown that they too make the connection

8 between race and something negative about African

9 Americans in that association.

10 Thank you for your time.

11 COMMISSIONER CASTRO: Thank you,

12 Professor. At this point I'm going to open it to

13 commissioners for questions.

14 And, Commissioner Yaki.

15 COMMISSIONER YAKI: Yes, thank you very

16 much, Mr. Chair.

17 I have a question for the panel. I

18 think -- I think it's fairly simple but it

19 probably isn't. If you are -- one of the

20 rationales for stand your ground has been that it

21 will enhance the protection of people in society.

22 And my question sort of goes to the heart of why

23 we're here today. And that is, if you're an

24 African American are your protections enhanced by

25 stand your ground laws?
1 47

2 MR. DAVID HARRIS: I know that others

3 are going to testify Commissioner about the

4 empirical evidence and some already have, but I

5 think -- there is no evidence that this is

6 protecting -- that it makes anybody safer in a

7 sense because homicides increase in states with

8 these laws. And it does not, as was also

9 advocated, in the initial run up to these laws,

10 they do not seem to stop other kinds of serious

11 crime either.

12 So I think that there's no -- there's

13 certainly no evidence that this is making anyone

14 safer. And as far as whether it makes African

15 Americans safer, just go back to Dr. Roman's

16 research, there's real evidence that this

17 introduces a level of bias into the system. It

18 increases the bias that might already be there,

19 because as a number of people said this morning,

20 there is already background bias in the system but

21 it makes it -- it just makes it more so.

22 COMMISSIONER CASTRO: Commissioner

23 Heriot --

24 COMMISSIONER ACHTENBERG: I think he

25 asked the panel --
1 4

8

2 COMMISSIONER CASTRO: Oh, I'm sorry.

3 MR. JOHN ROMAN: So I'd like to say

4 something about that as well. I think that -- so

5 I testified earlier that the evidence is that if

6 you look at these cross-race patterns of victims

7 and offenders that the stand your ground --

8 application of a stand your ground law in any

9 state increases the likelihood that any cross-race

10 victim offender combination will be more likely to

11 be found justified except for black-on-white

12 homicides, which don't change.

13 So I think two things are going on there

14 that are really important. One thing that is

15 going on there is that this law is in fact

16 increasing the number of times that people are

17 found to be justified for taking somebody else's

18 life without any prior evidence that that was a

19 problem.

20 One, that people were being wrongfully

21 convicted. And that applies to whites shooting

22 whites, or killing whites. Blacks killing blacks,

23 and whites killing blacks -- but not to blacks

24 killing whites.

25 So it's making a disparity that's
1 49

2 already pretty big even bigger. And the other

3 thing that it's doing that we haven't talked much

4 about here is it's doing it in a really haphazard

5 manner. So if you believe that -- that we've

6 increased the number of justifiable homicides --

7 homicides that are found to be justifiable and you

8 don't see any prior evidence that there was a

9 problem with wrongful convictions in these cases

10 then basically what you've done is doubled the

11 number of times that justice isn't served. And

12 you've doubled the number of times that justice

13 isn't served, but not for blacks when they're

14 involved in a homicide with whites.

15 So it just seems to make the disparities

16 more haphazard and less just.

17 MR. BENJAMIN CRUMP: No.

18 MR. JOHN ROMAN: That's a better answer

19 than mine.

20 MS. KATHERYN RUSSEL-BROWN: No. No,

21 there's no empirical evidence to support the

22 claim. It's something that comes up whenever

23 there's new criminal legislation that because

24 blacks are disproportionately victimized by crime,

25 by serious crime, that they will benefit if the
1 5

0

2 law is harsher, but there's no -- there's no

3 support for that.

4 COMMISSIONER CASTRO: Commissioner

5 Heriot.

6 COMMISSIONER HERIOT: Thank you,

7 Mr. Chairman.

8 Mr. Krouse, I need to understand a

9 little better about the data collection that you

10 were talking about for justifiable homicides. I'm

11 feeling a little lost particularly when you said

12 that justifiable homicides may be massively under

13 reported.

14 I assume that's not true of actual

15 homicides. I mean, the homicides -- the ones that

16 are classified as murder and voluntary

17 manslaughter -- for that matter involuntary

18 manslaughter.

19 So could you tell me how this works? At

20 what point do police departments report a

21 homicide? I mean, sometimes I assume a homicide

22 occurs, they don't know whether it is a

23 justifiable homicide, a murder, or a manslaughter.

24 How does this work?

25 At what point do they report it? If
1 51

2 they report it early do they then go back and

3 amend and say, "Okay, this was justifiable or this

4 one was murder." How often do they do that?

5 MR. WILLIAM KROUSE: Well, there's no

6 fixed procedure it's by agency by agency and they

7 fill out a form for the FBI. And it can be at any

8 process they decide they're going to report on it.

9 So these reports reflect data collection at

10 various stages of an investigation. But, you

11 know --

12 COMMISSIONER HERIOT: Are they

13 constantly being amended? I mean, I'm really

14 quite lost here --

15 MR. WILLIAM KROUSE: No, they're not

16 constantly being amended. So they send in the

17 report --

18 COMMISSIONER HERIOT: So something could

19 be reported -- there's a murder that turns out to

20 be a justifiable homicide and it never gets

21 recorded, right?

22 MR. WILLIAM KROUSE: There's a

23 possibility that there are justifiable homicides

24 that are recorded that are later found to be

25 murders and vice-a-versa murders that are later
1 5

2

2 found to be justifiable homicides. And neither

3 the UCR nor the SHR reflect that.

4 COMMISSIONER HERIOT: So my

5 understanding is that when it comes to justifiable

6 homicides that there's no requirement that -- that

7 police departments be doing that, and perhaps over

8 time we've seen more and more police departments

9 reporting those and that that could drive these

10 statistics -- you suggested that in one of your

11 charts.

12 MR. WILLIAM KROUSE: Well, I find it

13 interesting that you used the word requirement

14 because this is one of the -- one of the

15 fascinating things about America and the FBI and

16 state and local law enforcement, this is all

17 grassroots. This is state and locals coming to

18 the FBI, and the FBI saying, "Yeah, it's a good

19 idea to collect this data. And to the extent that

20 you'll provide it to us we'll be happy to compile

21 it for you." Same with criminal history records.

22 And I don't want to get into the legalities of

23 Congress or the federal government requiring

24 states to do certain things, but in general we

25 don't require them to submit these records, they
1 53

2 do it on their own.

3 However, as I pointed out, it's somewhat

4 intermittent. We're much more confident about the

5 just straight up murder and non-negligent homicide

6 data than we are on the justifiable homicides.

7 We're much more confident about the justifiable

8 homicides by law enforcement. But Gary Kleck in

9 Point Blank has estimated, and I think this is --

10 has stood to some academic scrutiny, that the

11 justifiable homicides carried out by private

12 citizens are under reported in both the UCR and

13 the SHR.

14 COMMISSIONER HERIOT: So -- and over

15 time I take it, you know, if it's true that we've

16 had more and more agencies reporting this then we

17 would get, probably, a bias in the stats that

18 would make it look like the number of justifiable

19 homicides is going up. Is that --

20 MR. WILLIAM KROUSE: It's been -- it's

21 been suggested that that might be the case. Might

22 be.

23 COMMISSIONER HERIOT: If I --

24 MR. WILLIAM KROUSE: But, we have no

25 firm evidence that that is the case.
1 5

4

2 COMMISSIONER HERIOT: But the chart that

3 you showed I think -- sure -- the chart you showed

4 was limited to a certain time period and I didn't

5 get a chance to see it. How long a period was

6 that?

7 MR. WILLIAM KROUSE: It's 2001 through

8 2010.

9 COMMISSIONER HERIOT: So do you have any

10 information about whether or not there has been an

11 increase or a decrease or -- or -- you know, are

12 more and more agencies reporting this or is that

13 not true?

14 MR. WILLIAM KROUSE: I didn't have an

15 opportunity to glean that from the SHR data but

16 that could be done.

17 COMMISSIONER CASTRO: Mr. Roman.

18 MR. JOHN ROMAN: So, it's a great

19 question, right. I mean, these data are flawed.

20 They're fundamentally flawed and I think you did a

21 wonderful job earlier of describing how they're

22 flawed. And it's -- it's voluntary reporting, you

23 know, it's what we have.

24 But I think what's really important in

25 understanding these data is that it's not the
1 55

2 overall increase in the number of places that are

3 reporting and the overall number of homicides that

4 we have some understanding of, what matters is

5 really, do the proportions change. Right?

6 If we go from, you know, two and a half

7 percent justified to almost four percent

8 justified, it sort of doesn't matter if we're

9 getting better compliance or less compliance or

10 whatever it is, what matters is that that

11 proportion of the number of justify -- homicides

12 that are found to be justified is increasing --

13 ---regardless of whatever --

14 COMMISSIONER HERIOT: In the stand your

15 ground states you're talking about there?

16 MR. JOHN ROMAN: Right. That's correct.

17 Yes.

18 COMMISSIONER CASTRO: Okay. I'm going

19 to ask a couple of questions, and we're going to

20 have Commissioner Narasaki, Commissioner

21 Achtenberg.

22 We're also going to want one of our

23 staff members Dr. Goliday to ask some questions

24 and then any other commissioners who indicate so.

25 My two questions -- the first one is one
1 5

6

2 that I asked the earlier panel. Well, you know,

3 as we are really talking about this in the

4 black/white binary and I know there are

5 limitations on the data that's being reported, but

6 do you all have any information on the impact of

7 these laws on Latino's or other ethnic minorities

8 or religious minorities such as Muslim and Arab

9 Americans?

10 Anybody?

11 MR. WILLIAM KROUSE: Well, sir, I can

12 tell you that I've spent the past year very

13 carefully looking at multiple victim murders in

14 the wake of Newtown, and that's a very complicated

15 question because I've went back and I've

16 identified the names of the victims and the

17 offenders in those incidents where four or more

18 people were shot to death.

19 And when you look at that it's very

20 difficult to tell. If you're Hispanic, that's a

21 matter of ethnicity, it's not a matter of race.

22 So you can be a black Hispanic, you can be a white

23 Hispanic, for that matter you can be an American

24 Indian Hispanic.

25 And when you look at people who are of
1 57

2 Middle Eastern descent they're usually always

3 considered white in the UCR. So there are

4 limitations. And this all goes back to an OMB

5 (phonetic) Circular. And it's the way that we

6 collect data on race and ethnicity in the United

7 States.

8 And I can't remember the exact year, but

9 we haven't always collected data in the UCR or the

10 SHR on ethnicity. It's a fairly recent thing,

11 within the last decade or half.

12 COMMISSIONER CASTRO: Okay. Thank you.

13 Mr. Roman, I don't know if you've had

14 the chance to -- I don't know if any of you have

15 had the chance to see the written testimony of

16 other witnesses that have appeared or will appear,

17 but in the afternoon panel we have John Lott of

18 the Crime Prevention Research Center. And in his

19 written remarks -- I don't know, have you seen

20 those, Mr. Roman?

21 MR. JOHN ROMAN: I have not.

22 COMMISSIONER CASTRO: I'm going to read

23 you an excerpt and I'd like to hear your thoughts

24 on it. He actually, specifically, addresses your

25 report -- The Urban Institute Report.
1 5

8

2 He says, "In contrast to the Tampa Bay

3 Tribune data a recent Urban Institute study by

4 John Roman claims to have found stand your ground

5 laws appear to exacerbate those racial differences

6 as cases all over are significantly more likely to

7 be justified in stand your ground states than in

8 non-stand your ground states."

9 "Roman acknowledges that his data lacks

10 details available in the Tampa Bay Tribune data.

11 The data here cannot completely address this

12 problem because the setting of the incident cannot

13 be observed. Indeed Roman's estimates contain

14 virtually none of the information available in the

15 Tampa Bay Tribune Report data set."

16 "For example, his data has no

17 information on whether any eyewitnesses saw the

18 confrontation or whether there existed physical

19 evidence. And it has no information on who

20 initiated the confrontation, where the attack

21 occurred, or the type of case."

22 "Nevertheless even using the limited

23 information Roman draws the wrong conclusion from

24 his analysis to the extent to which the Urban

25 Institute Study proves anything," he says, "It
1 59

2 proves the opposite of what Roman claims."

3 Could you address those concerns?

4 MR. JOHN ROMAN: Sure. I would be

5 delighted to. So I think -- so there's a couple

6 of things going on here. So, you know, there's an

7 old saying in statistics, "All statistical models

8 are wrong, and some are useful."

9 And the question is, which of these

10 statistical models are most useful? So the Tampa

11 Bay Tribune analysis is really what we would call

12 in the social science a convenience sample. They

13 just got what they could get.

14 And if you want to understand the whole

15 of the stand your ground issue, and the whole of

16 the justifiable homicide you want to go to as

17 broad a sample as you can obtain. Or if you want

18 to go to a small sample that you want to dive

19 really deeply into, you want to make sure that

20 it's a random selection so that you can say things

21 about the cases that you didn't get data on. So

22 this is the choice that we have.

23 So the Supplementary Homicide Report

24 data does not contain information about the

25 context. That's a very important limitation of
1 6

0

2 the data, and I think that we acknowledged that in

3 the report. But it does contain -- it's not --

4 it's not -- it's not a sampling strategy, it's

5 every single homicide that occurred in this

6 period -- it's a census.

7 So on one hand we have information about

8 every single case that happened. On the other

9 hand the Tampa Bay Trib looked at a couple hundred

10 cases that they could get data on and try to draw

11 some inferences from it. I think it all sort of

12 helps to paint the picture.

13 But, you know, I mean, I teach

14 statistics at the University of Pennsylvania and,

15 you know, I would prefer that my students would

16 work with data that's more of a census, and if

17 they can't get that then sort of a random

18 probability sample. And if they can't get that

19 then a convenience sample like what the Tampa Bay

20 Trib did would probably be the last resort for me.

21 COMMISSIONER CASTRO: Thank you.

22 MS. KATHERYN RUSSEL-BROWN: And related

23 to that -- I just want to go back to the question

24 that you asked earlier about moving past the

25 black/white binary area. That in that data, that
1 61

2 the Tampa Bay Times collected they do have

3 information on Hispanic's as victims and as

4 offenders using stand your ground.

5 COMMISSIONER CASTRO: Right. Ma'am,

6 thank you. I did see that. And it's an

7 interesting paradox there if I understand that

8 correctly that Hispanic's are more likely to not

9 be convicted when they're using the stand your

10 ground laws, but they are also more likely to be

11 the victims of shootings involving white shooters.

12 So I guess I'll ask Mr. Lott a question

13 about that in the other panel, unless some of you

14 have the answer to that, but --

15 So at this point I'd like to cede the

16 floor to Commissioner Narasaki, then Commissioner

17 Achtenberg, then Dr. Goliday.

18 Commissioner.

19 COMMISSIONER NARASAKI: Thank you. So I

20 have a few questions that some of you can answer.

21 I'm interested in whether there is implicit bias

22 research about Asian's, Latino's, Native

23 American's, and Arab American's that should cause

24 us concern in relationship to the stand your

25 ground laws?
1 6

2

2 I'm also interested in hearing about --

3 we've talked a lot about the data deficiencies,

4 I'm interested in any recommendations you think we

5 should consider about how do we address the gaps

6 that exist?

7 Should the federal government, for

8 example, consider tying a grant for law

9 enforcement support to better data collection on

10 the state level?

11 And then third -- so, this morning we

12 had a member of the state legislature in South

13 Carolina say, "Well, it may be true that

14 eventually someone will be able to prove that they

15 acted in self-defense and be able to clear

16 themselves. That the challenge is that until that

17 time they're held in jail, they have to spend

18 funds defending themselves, and in some states you

19 could be held for a very long time deprived of

20 your freedom."

21 And in his view -- I think he's a

22 defense attorney it sounded like. In his view

23 stand your ground has helped people in those

24 situations who should be free, be free up front,

25 instead of having to try to get themselves through
1 63

2 what can often be a challenging criminal system.

3 And then my final question is to Crump,

4 which is, you talked a lot about the

5 unconstitutionally vague notion of reasonable

6 perception. So this morning we had this debate

7 about how different is stand your ground from the

8 traditional self-defense laws. And so this notion

9 of reasonable fear if you could explain that

10 difference because we had a lot of debate about

11 that this morning.

12 Thank you.

13 MR. DAVID HARRIS: Commissioner, I'll

14 try on your first two questions. If you go to the

15 existing website for the implicit association

16 operations -- I think it's now called Project

17 Implicit -- ProjectImplicit.org. You will see a

18 number of different implicit association tests. I

19 haven't been to that site in a little bit myself,

20 but I remember that there are now implicit

21 association tests about testing biases in all

22 kinds of situations.

23 I do remember -- I think at one point

24 there was one involving Asian populations, and

25 another involving Muslims. There are gender ones.
1 6

4

2 There are same sex relationship ones. So there's

3 quite a variety of this and it's there for looking

4 -- and the test taking, whether this would be a

5 concern whether those kinds of implicit bias would

6 be a concern in any stand your ground state, I

7 would say, yes. The question is going to be

8 whether you have any particular population in the

9 stand your ground state that you're focusing on

10 that is going to end up using the statute -- or as

11 the victim in a shooting.

12 And if you have a substantial enough

13 population I would think that these questions of

14 implicit bias would apply in those cases too.

15 Your second question about tying federal

16 funding to data collection, I think that that is

17 an idea that has a lot of merit. And I would

18 simply point out that the federal government not

19 having the ability to tell local law enforcement,

20 "You will do this, you will do that," or to tell

21 states you're going to have certain kind of law.

22 That's obviously what the Constitution says, but

23 the power of the purse rules.

24 When in a misguided attempt, perhaps one

25 remembers, to have a 55 mile an hour speed limit,
1 65

2 remember those days? The federal government said,

3 "Well, you don't have to, but no more highway

4 money." And guess what happened?

5 They had -- there was a controversy

6 about the legal limit for drunk driving. The

7 federal government wanting it to come down to .08

8 in states that did not have that limit. "Well, you

9 don't have to do it, but if you want that highway

10 money think about it." And guess what happened?

11 So this is something that Congress has

12 done, the Executive Branch has been part of for

13 many, many years, and many different

14 circumstances, and I think that this is one where

15 they should do it too.

16 MR. WILLIAM KROUSE: I have just a

17 couple of things to add insights there. One,

18 Congress does have power of the purse but the

19 discretionary plot is shrinking with every passing

20 year.

21 Two, the amount of money that we devote

22 to state and local law enforcement has shrunk --

23 particularly in light of 9/11, and it's now in the

24 Homeland Security bucket, if you will.

25 And third, the state and local law
1 6

6

2 enforcement grant program has a number of ties

3 added on to it already, penalties for this,

4 penalties for that to encourage states, if you

5 will, through a carrot and stick type process to

6 do this or that.

7 I would suggest possibly is that one of

8 these things is a priority that can be set for the

9 FBI to just strengthen, to encourage the states

10 that we need better data, that our data has

11 somewhat diminished over the years and we could

12 use better data. They oversee this and there's a

13 compact that everyone enters into. So it's one of

14 the great things about America, it's grassroots.

15 But if you don't have strong leadership, and the

16 National Academy of Sciences has two books on this

17 and I recommend them to you on foreign related

18 violence and the statistics that are available,

19 and also what's happening in the Bureau of Justice

20 Statistics, you might want to take a look there

21 for different insights and pathways you might be

22 able to take to encourage better data collection.

23 COMMISSIONER NARASAKI: If I can ask one

24 more question. Because you explained the

25 challenge with Hispanic data -- ethnic data,
1 67

2 right, but Asian is a race category --

3 MR. WILLIAM KROUSE: Yes, Asian Pacific

4 Island --

5 COMMISSIONER NARASAKI: -- yeah, so --

6 right. So is there data available on how stand

7 your ground laws effect them on both sides of the

8 equation?

9 MR. WILLIAM KROUSE: Not specifically.

10 I mean, you'd have to go and you'd have to look

11 at, you know, Asian Pacific Islanders that were

12 involved in justifiable homicides, you know?

13 From there you'd have to make a

14 determination by looking at the reporting agency

15 and the month and the date of the incident to

16 determine what the circumstances were and

17 determine whether stand your ground, Castle

18 Doctrine, or some other factors were at play.

19 COMMISSIONER NARASAKI: But the data's

20 there, just somebody has to look at it --

21 MR. WILLIAM KROUSE: Yes. It's there

22 but it's incomplete and you would be looking at a

23 very, very fine cuts from a percentage point of

24 view.

25 MR. JOHN ROMAN: Can I -- can I just
1 6

8

2 offer two thoughts on that? So -- so, I mean, I

3 have the data here for -- so for the 6 year

4 period, in Hawaii for instance there were 77

5 homicides. Four were ruled to be justifiable. In

6 the Virgin Islands there were 15, there were none.

7 So, I mean, we have all the data, we

8 have the code, we could certainly do it. I'm much

9 -- I'm much more comfortable, I think, in the

10 quality of the data because I don't -- because --

11 the thing to remember is, is the quality of the

12 data changing in some way related to justifiable

13 homicides over time?

14 The quality of the data may be changing,

15 the volume of the data may be changing, but

16 there's nothing that would make you think it has

17 anything to do with justifiable homicide. Which

18 is, you have to understand this data set is, you

19 know, 80 variables. And the variable that we're

20 talking about is 1 value 80, you know, in a list

21 of 80 different circumstances. Right?

22 And so the idea that somehow the

23 reporting is changing as a function of this 1

24 value of this 1 variable with 80 levels, it's just

25 -- it's impossible for me to believe.
1 69

2 The other thing I would say is, and the

3 other -- I would take slight objection to is, I

4 think that you either have to mandate the data

5 collection or it won't happen.

6 In the late 1990's, back when I was a

7 young man. The Bureau of Justice Statistics

8 embarked on an exercise to create the NIBRS,

9 National Incident-Base Reporting System, which is

10 basically the Supplementary Homicide Report data,

11 it's actually even more complete than that for

12 every kind of crime. And they pushed it out to

13 the states, and they asked the states to do this,

14 and the states wouldn't do it. Right?

15 They got partial compliance in 8 or 9

16 states and total compliance in just a couple of

17 others. We live in a completely different IT

18 world then we did in 1998, and 1999, and 2001 when

19 this thing really basically petered out. Right?

20 The cost to local police agencies to

21 comply with this kind of data collection

22 requirement is so trivial compared to what it was

23 in 1998 that I just don't see it as being a huge

24 ask. And it would inform -- last thought, I'm

25 sorry -- it would inform so many different
1 7

0

2 questions beyond just what we're talking about

3 today that are really important in reforming these

4 criminal and juvenile justice systems.

5 MR. ARKADI GERNEY: Just to add, we

6 released a report in September of last year which

7 had a number of recommendations, and one of them

8 basically mirrored what Mr. Krouse just said,

9 which is to have a year long process to work with

10 the states to improve the data collection around

11 justifiable homicides, but at the end of that if

12 it didn't improve to withhold some portion of

13 discretionary burn justice assistance grant money

14 which is the principle justice department grant

15 funding streamed to the states.

16 COMMISSIONER CASTRO: Anybody else?

17 Mr. Crump.

18 MR. BENJAMIN CRUMP: I think that she

19 asked a question about reasonable fear and so I

20 can address that. I'll refer to the academic,

21 great data, and this is a fascinating

22 conversation. I thank the civil rights commission

23 for doing this, but I want to point specifically

24 as it relates to the reasonableness of the fear.

25 I did get an opportunity to talk about Michael
1 71

2 Giles, so hopefully I can interject that in my

3 response.

4 Michael Giles, 25 year old African

5 American, never convicted of a crime his whole

6 life. Mother and father, military. Brother,

7 military. He's in the military. A good citizen.

8 From everybody's standpoint this bar fight that he

9 has nothing do with, he's attacked, the testimony

10 is the guy was looking for the next person he saw

11 to knock out. His testimony is that he lunged at

12 him with the full weight of his body trying to

13 knock him out. While he's on the ground and

14 people are kicking and hitting him he takes the

15 permit -- the gun that he has a permit in his

16 ankle, and shoots the guy in the leg. He is --

17 scratches his leg. He's let out of the hospital

18 in a matter of hours.

19 He goes to court, stand your ground, if

20 it should apply to anybody it's him. I mean,

21 let's be real when you think about what happened

22 to Trayvon, somebody's following you and say they

23 all get away -- Mr. Gerney broke it down very

24 clearly the history of Trayvon's killer.

25 You look at the history of Michael
1 7

2

2 Giles, there's nothing there. But when you come

3 to the reasonableness of fear and how this law's

4 been applied, it's startling because the testimony

5 was first based on attempted murder. The victim

6 got on the stand and said, "No, he wasn't trying

7 to kill me. If he was wanting to kill me he could

8 have shot me." So the prosecutor had to drop

9 that. But the prosecutor still insisted on going

10 forward on the case, on aggravated battery.

11 And so what you have -- what happened,

12 the jury came back because they thought "Well,

13 aggravated battery is lesser and they don't have

14 to deal with the sentencing." And they convicted

15 him not knowing that he was going to get 25 years.

16 So I know I'm going a little around your

17 question but I want to bring it back because you

18 look at Marissa Alexander, you look at Georgia,

19 you look at all of these things and you say,

20 "Well, if Mr. Giles would have been a white male

21 would he have got greater stand your ground

22 consideration?" If Marissa Alexander had been a

23 white female would she have gotten greater stand

24 your ground consideration?

25 And I'm sorry I don't have all of the
1 73

2 data because as I understand it they don't really

3 want the data. They don't want to present it out

4 there because I know the Congressional Black

5 Caucus asked that question about, "Well, who are

6 the victims of stand your ground and who are the

7 beneficiaries of stand your ground?" And they

8 asked the state and the state didn't get anything

9 back. As it relates to the -- representative --

10 State Representative from South Carolina, you look

11 at that and you scratch your head and you say,

12 "Well, we do want it to be an important thing when

13 somebody decides to take somebody's life." When

14 you decide to kill somebody, that you don't want

15 it to just be so arbitrary that we have a law that

16 says you don't have to try to solve it with

17 conflict resolution, you don't have to try to

18 resolve it peacefully, just take your gun out and

19 shoot them because remember --- we have

20 self-defense." Under self-defense, you know, the

21 law is different you have a duty to retreat if

22 it's reasonable and safe that you can do so. But

23 under stand your ground you have no such duty. So

24 we have a lot to do with the application, what's

25 real and how it's being applied. So I would hope
1 7

4

2 that as far as collecting the data is important,

3 but looking at how these courts around America,

4 not just in Florida, but around America -- in

5 Louisiana we have stand your ground cases all the

6 time I'm involved in. Arizona -- and when the

7 victim is black or brown they are criminalized and

8 the implicit biases are put on thick. The person

9 who's dead on the ground as an excuse to justify

10 what the killer has done.

11 COMMISSIONER CASTRO: Okay. So I'm

12 going to go to Commissioner Achtenberg, followed

13 by Dr. Goliday, followed by Commissioner

14 Timmons-Goodson. And do any of the commissioners

15 on the phone want to get on the list?

16 COMMISSIONER KIRSANOW: Peter Kirsanow

17 here, I think I may have a question.

18 COMMISSIONER CASTRO: Okay, Commissioner

19 Kirsanow.

20 Commissioner Achtenberg, you have the

21 floor.

22 COMMISSIONER ACHTENBERG: Thank you,

23 Mr. Chairman. I have in the great tradition of my

24 colleagues, I have two questions.

25 My first question is to
1 75

2 Dr. Russell-Brown. You say in your written

3 testimony that if there were ways to make implicit

4 bias explicit that might have some salutary effect

5 on all of these matters.

6 Could you further describe ways of

7 making implicit bias explicit that might be things

8 for this commission to consider when we get to

9 recommendations should we conclude that implicit

10 bias is actually an equal protection or due

11 process problem when it comes to the

12 administration of justice and the racial

13 disparities that may -- that the statistics may

14 suggest exist.

15 MS. KATHERYN RUSSEL-BROWN: The point

16 that I'm -- the point that I'm making there is

17 that we need to -- I guess it's always -- play the

18 piano with all ten fingers. Right? That we need

19 to consider implicit bias. We need to look at it.

20 We need to see what impact it has on people's

21 perceptions of fear, calculating fear, the

22 empirical research, the sociological research,

23 criminological research, supports that whites see

24 African Americans as symbols of fear, that there

25 are these direct associations and indirect
1 7

6

2 associations made. So the implicit bias and the

3 perceptions of what race means, that's there. But

4 in terms of, sort of, nuts and bolts, you know

5 making the connection to what's actually going on

6 in the criminal justice system I think that we --

7 and that's why I made the recommendation about the

8 racial impact statement. We have to take a look

9 at what's actually going on on the ground.

10 Now at the same time that -- that this

11 needs to happen we're also talking about needing

12 to have -- the idea of having some kind of

13 national data base to gather information.

14 So in addition to, if there is new

15 legislation related to criminal laws that there

16 should be some racial impact statement.

17 There also needs to be -- there also

18 need to be databases that gather information so we

19 can evaluate what's actually going on.

20 So the idea here is that we need to be

21 mindful of the fact that there is something about

22 race -- that race does matter in the

23 administration of justice. And that people's

24 attitudes about crime, attitudes about race, then

25 in turn impact what does actually happen.
1 77

2 So we need to look at these different

3 places. And that's the main point.

4 COMMISSIONER ACHTENBERG: Thank you very

5 much.

6 And, Mr. Crump, I'm intrigued by the

7 issue of the case that you filed in Georgia

8 questioning the constitutionality of the Georgia

9 stand your ground law. Is that the context?

10 MR. BENJAMIN CRUMP: Yes, ma'am.

11 COMMISSIONER ACHTENBERG: Could you

12 articulate more extensively the rationale that

13 you're proffering there and could you make some

14 suggestions if you will for issues that this

15 commission might consider addressing as it relates

16 to the constitutional principles at issue in your

17 Georgia case?

18 MR. BENJAMIN CRUMP: Absolutely. The

19 biggest inference, I guess, if you want to try to

20 frame it, by creating a right to kill based on an

21 individuals reasonableness, fear without defining

22 circumstances with -- demonstrate reasonable --

23 the act that potentially deprives individuals of

24 their lives without due process. And once you do

25 that the cost of that infringes on the fundamental
1 7

8

2 due process right of life. It must be reviewed

3 under strict scrutiny. And I think that's where

4 this commission can speak very robustly on that

5 issue because I think stand your ground, it's

6 always been this sort of question whether this is

7 constitutional on so many levels.

8 But this whole thing of just the

9 reasonableness, like, how do you qualify that to

10 make it uniform and not be arbitrary so we have

11 everybody getting equal justice and it's not one

12 thing in this court, and South Florida one way in

13 this court, and North Florida one way, and Georgia

14 one way, and Arizona one way, and Arkansas one

15 way, and South Carolina, because when you start

16 looking at it being applied like those things --

17 being applied like that, but yet you go back to

18 the Constitution of the United States -- and

19 saying -- where is a Constitutional privilege to

20 Americans being deprived here. Being, I think,

21 you can bring it to uniformity of everybody in the

22 state saying we're not saying you can't have a

23 stand your ground law, but your stand your ground

24 law gotta be un-vague, it has to be clear, it has

25 to tell people what and when they can take
1 79

2 somebody's life and it be uniform.

3 You can't say just because it's a black

4 person I think, "Oh, those -- those black men are

5 more dangerous than white men so we can give you a

6 little extra discretion to shoot a black man."

7 And that's troubling on so many levels.

8 And as we look at this lawsuit we -- we -- it's

9 about a 40 page complaint so I can't give you all

10 of the details, but I'm glad that you all provided

11 me with a lot of experts to choose from when we go

12 before the Georgia Supreme Court.

13 But it is one of the things -- I'll say

14 in conclusion and -- where is it is here -- in

15 conclusion, when we talked about the Castle

16 Doctrine it was objective as my classmate Miss

17 (Inaudible) -- you know, we got taught in law

18 school, the Castle Doctrine it was objective

19 because you were in the house. And so if the

20 person had a mortgage or they had a lease and

21 stuff, it was real objective. Didn’t have to guess

22 about whether the person -- whether it was their

23 house and there was an issue of self-defense. It

24 was their house and why are you in their house

25 threatening them.
1 8

0

2 It gets a lot more subjective when you

3 say, "I'm walking down the street in Sanford,

4 Florida, in a gated community and I think

5 somebody's not supposed to be there, and I go

6 confront them, and I make sure that when I shoot

7 -- because that's the message that we're sending,

8 that the person is dead because if they live --

9 Marissa Alexander -- it's a lot harder to win your

10 stand your ground argument when somebody can argue

11 that "I wasn't a threat to your life."

12 So when you look at that it becomes very

13 subjective. And when it becomes that subjective

14 it becomes too vague and it doesn't pass the

15 constitutional muster. And that's what we're

16 raising to the stand your ground law has been

17 unconstitutional.

18 We haven't got a writ of certiorari yet,

19 but we're hoping that the court is going to let us

20 argue it, we're waiting. The commission can speak

21 to that issue and help so much this group of

22 lawyers and parents who are crying out to say "We

23 can't bring our children back but let's try to do

24 something for their legacy so it won't happen to

25 your children."
1 81

2 COMMISSIONER ACHTENBERG: So the

3 subjectivity is in the place where this defense

4 can now be proffered as well as the fact that it

5 used to be an objective standard and now it's a

6 subjective standard. We heard in the prior panel

7 the State Representative from South Carolina

8 acknowledged that if I -- if somebody punches me

9 in the face, and I'm in public I can take my gun

10 out and shoot them. And he went on to say that if

11 I think the person is going to punch me in the

12 face and my -- you know, there's no -- there's no

13 reasonable standard that's applied to that. If I

14 think the person is going to punch me in the face

15 and I pull my gun out and shoot him that's

16 justifiable under their stand your ground law.

17 Is that your understanding of the way

18 the law operates?

19 MR. BENJAMIN CRUMP: Absolutely.

20 Miss Achtenberg you brought up a very important

21 point and that's the third prong. In self-defense

22 you have a duty to retreat if it was reasonable

23 and safe that you do so. And who could argue with

24 that being a bad law, that you don't kill

25 somebody, if you can get away you have a duty to
1 8

2

2 do so if it's reasonable and it's safe. Now if

3 it's not reasonable and safe you can defend

4 yourself. But if it's reasonably safe you can do

5 it.

6 In the Castle Doctrine said you don't

7 have to retreat if you're in your house, but

8 self-defense says you can. So now stand your

9 ground, just as you said -- say -- even if I think

10 you're going to be a threat to me, if you say a

11 word to me and I think that you can follow through

12 with the threat I can just kill you. I don't have

13 to say, "Let me get in my car and drive away."

14 You know, we have -- there have been

15 cases where people in the car could easily drive

16 away, but they shot the person. "I felt

17 threatened, and why did I have to run." -- think

18 about the matter in Texas with the young man

19 breaking in the neighbors house. The police tell

20 him, "Don't go over there." He goes over there

21 anyway, says, "I know my rights, I can stand my

22 ground."

23 Where does it end? The theater with the

24 popcorn. You know, I thought that he was a threat

25 to my life. And so it's so subjective, so now
1 83

2 there are three prongs that tag it

3 constitutionally. One is on the reasonableness of

4 the fear. The second is on this subjective

5 criteria, now that it is no longer with the Castle

6 Doctrine -- self-defense. And the third is

7 certainly that no duty to retreat at all,

8 whatsoever, just take a gun out and shoot the

9 person.

10 COMMISSIONER ACHTENBERG: Thank you.

11 COMMISSIONER CASTRO: Mr. Crump, if you

12 don't already know him Jerry Gonzalez of our State

13 Advisory Committee in Georgia is sitting in the

14 third row back there, you might also want to talk

15 to him.

16 Next we have Dr. Goliday, Commissioner

17 Timmons-Goodson, Commissioner Kirsanow,

18 Commissioner Yaki, and then we'll be close to

19 finishing up on this panel.

20 DR. SEAN GOLIDAY: Thank you. Many of

21 my questions have been addressed but I do have --

22 COMMISSIONER CASTRO: Could you speak up

23 a little louder in --

24 DR. SEAN GOLIDAY: -- many of my

25 questions have been addressed but I do have just a
1 8

4

2 couple of questions for Mr. Krouse and Mr. Roman.

3 Given the methodological issues you

4 (inaudible) with the existing data sources, what

5 would be a likely data source to kind of help us

6 address some of the unanswered questions regarding

7 conclusions currently being made about justifiable

8 homicides?

9 And the second part of the question is,

10 how can we work to bring that to scale or at least

11 if not to scale, in theoretically important states

12 -- that just kind of start looking at this issue

13 beyond the federally sponsored data collection

14 efforts.

15 MR. JOHN ROMAN: Those are hard

16 questions. So with respect to the first question,

17 you know, you could potentially reverse engineer

18 some of this stuff, right? And we're talking

19 about in most places where there just aren't that

20 many homicides a year. You could potentially, you

21 know, fund a study that could go and look at the

22 conda (phonetic) newspaper report legal filings

23 about the nature of some random sample of these

24 reports, learn something about the context about

25 them, and try an answer this really critical
1 85

2 question, right? Which is, are homicides of

3 whites-on-blacks different than homicides of

4 blacks-on-whites. Right? If one is more likely

5 to be in context of self-defense than the other

6 then the racial disparity is appropriate.

7 The racial disparity is so, you know,

8 gargantuan that it's hard to believe that would be

9 true. But you could potentially do that. There

10 are some confidentiality issues there that I would

11 be a little concerned about. Beyond that I don't

12 know what else you could do.

13 The bigger issue here and we face this

14 throughout the criminal/juvenile justice system is

15 that states know what they spend and they have no

16 idea what they buy. And they don't know what

17 they're buying in terms of law enforcement. They

18 don't know what they're buying in terms of

19 community placements for juveniles, or sentencing,

20 or corrections, they don't think about outcomes,

21 they don't share data, they don't share knowledge.

22 And a lot of what's going in the world

23 that I inhabit these days is trying to get to

24 force states, counties and local governments to

25 articulate what it is they're trying to accomplish
1 8

6

2 and that means making them share data.

3 If you share data it forces you to see

4 all of your worts. And I think any

5 effort that this commission can make to force

6 local, county, and state jurisdictions to -- to

7 collect, analyze, share and think about data

8 around these kinds of issues will force other

9 reforms that are also really important as well as

10 to help us articulate the answers to the questions

11 that we can't today.

12 MR. DAVID HARRIS: If I could interrupt

13 just a second. I apologize to the commission I'm

14 going to have to depart for an airplane. I'm

15 thankful for the opportunity to testify here and

16 I'd be glad to answer any questions in writing.

17 Thank you.

18 COMMISSIONER CASTRO: Thank you,

19 Professor.

20 Yes, Mr. Crump.

21 MR. BENJAMIN CRUMP: I just -- I got a

22 response from Lucia McBath and she again wanted to

23 apologize, but they just sentenced the killer of

24 her son, Michael Dunn, to 105 years on top of a

25 life sentence. She asked me to share this with
1 87

2 the commission.

3 COMMISSIONER CASTRO: Thank you.

4 Any other responses to Dr. Goliday's

5 questions?

6 MR. WILLIAM KROUSE: Well, I agree with

7 Dr. Roman that we need better data. There's a

8 need to improve our crime statistics. And if I

9 lived in a perfect world and I could dedicate

10 myself to this issue I would go and I would look

11 at each one of those SHR records and contact the

12 reporting agencies and try and find out what the

13 circumstances were.

14 I mean, you're looking at

15 stranger-on-stranger, white-on-black, firearm

16 related justifiable homicides over that 10 year

17 period there's 250 in the SHR. Then I would try

18 and do a literature search to get some sort of

19 reading on the error rate there as to how many

20 weren't reported. And that would give me some

21 idea of the prevalence, because right now I don't

22 think that we can be too confident about the

23 prevalence of private citizen justifiable

24 homicides in general when that filters down to

25 every other category.
1 8

8

2 So that's what I would work on. And

3 that's what I've been doing for the past year on

4 mass shootings and it's -- it's astounding what

5 you find. And in this country where we put such a

6 primacy on self-defense you would want to know

7 where those numbers are falling I would think.

8 And you'd want to have confidence in those

9 numbers.

10 And the Bureau -- I've had discussions

11 with the Bureau of Justice Statistics, the NIBRS

12 Program is advancing where we can start to do data

13 samples on different questions and do some

14 statistical sampling, but that's on a nation-wide

15 basis that's not state by state.

16 And so I would hope that, you know, we'd

17 start to look at these things a little more

18 carefully in the future and at some point I will

19 given the time and resources.

20 COMMISSIONER CASTRO: Okay. Professor

21 -- I'm sorry. Commissioner Timmons-Goodson.

22 COMMISSIONER TIMMONS-GOODSON: Yes.

23 Thank you very much, Mr. Chair. I had this

24 question for Professor Harris, but I'd like for

25 those that are present if you'd like to take a
1 89

2 stab at it I'd appreciate it.

3 As I listened to Attorney Crump and

4 others talking about reasonableness, objective

5 standards, subjective standard, in describing fear

6 it just seemed to me that it was extremely

7 relevant that implicit bias is extremely relevant.

8 It leads me to ask that given that

9 people often don't recognize and can't easily

10 eliminate implicit bias I was wondering whether

11 any of you might see anyway in which we might

12 alter our stand your ground laws to both take into

13 account this very valuable research information

14 that we now have the benefit of, and take

15 advantage of it in a way that will both allow us

16 to protect those that fear, attack, and also to

17 avoid the unnecessary deaths of the alleged

18 attackers. Any takers?

19 MR. ARKADI GERNEY: Well, I think, you

20 know I would say, and I think Mr. Crump spoke to

21 this earlier to a degree, I think one of the

22 problems with stand your ground laws and the great

23 burden it places on jury's, but also the shooters

24 themselves at the moment they're making their

25 decision and to act reasonably is the great
1 9

0

2 increase in the gray area and the uncertainty that

3 it creates. So when it was only the Castle

4 Doctrine and you had this location restriction it

5 made it easier for people who were applying stand

6 your ground laws in the course of shooting someone

7 in their home -- or self-defense laws in the

8 course of shooting someone in their home, but also

9 for a jury that would go look at it later to try

10 to figure out what happened. It was a narrower

11 set of circumstances, the scope of what could be

12 reasonableness, this gray area was much narrower.

13 And then when you bring in the, you

14 know, the work of Mr. Harris and others and

15 implicit racial bias, when you have an enormous

16 scope of what possibly could be reasonable, the

17 scope of what could be biased is much larger. The

18 rule -- there are not bright lines here.

19 And the consequences of not having

20 bright lines can -- can -- can hurt people either

21 way. That can mean wrongful convictions because

22 these very vague laws are applied very differently

23 depending on what particular jury you happen to

24 get. What particular defendant you happen to get.

25 And the uncertainty itself is a huge part of the
1 91

2 problem.

3 COMMISSIONER CASTRO: Any other

4 responses?

5 MR. BENJAMIN CRUMP: The only thing that

6 I might add to that is when you think about the

7 Castle Doctrine as opposed to what we have now

8 with the stand -- oh, I'm sorry, self-defense as

9 to what we have now with stand your ground, and in

10 many of these cases the objectiveness was, can the

11 jury say "Did you have a duty to retreat? Was it

12 safe?" But that's just thrown out now. And so it

13 makes it that more subjective. I just fear them.

14 So the only issue is, how can you prove fear in

15 somebody and if it's a genuine fear or if it's a

16 fear that -- I go back to Trayvon. I just thought

17 that black people walking in my gated community

18 weren't supposed to happen based on there was a

19 robbery by a black person months before. If you

20 remember the trial, which definitely couldn't

21 understand why that was allowed to come into

22 court. But because of that it somehow justified

23 him stopping to detain any young black person

24 walking in his gated community.

25 And so you go from that very objective
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2 fact -- that self-defense saying, "hold on," but

3 if you had no duty to engage him and you could

4 have got away then the jury can say you're guilty

5 because this wasn't self-defense. But now with

6 stand your ground is just such much gray --

7 there's no bright line as Mr. Gerney said for the

8 jury -- to help the jury understand it.

9 MS. KATHERYN RUSSEL-BROWN: To answer

10 your question or my comment -- or to answer your

11 question is to retain the reasonable fear aspect,

12 that it should be an objective standards, that it

13 just shouldn't be that a person indicates that

14 they, themselves, were fearful. I mean, the law

15 should work in an objective way.

16 I think Pennsylvania, which has a stand

17 your ground law as well, has included that in it

18 there must be some showing of a weapon. There

19 must be something objective about this fear.

20 MR. BENJAMIN CRUMP: And, Mr. Chair --

21 if I could -- also remember that the initial

22 aggressor aspect of it. Most states say that you

23 can't be the initial aggressor and still claim

24 self-defense. But I submit to you if the person

25 is dead on the ground how can you prove who was
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2 the initial aggressor?

3 MR. ARKADI GERNEY: Or if you're in --

4 there are some states that allow invocations of

5 stand your ground if you're in the commission of a

6 crime. So, for example, if you're in the process

7 of dealing drugs and that confrontation arises and

8 you fear for your life you can legitimately claim

9 a stand your ground defense in some states,

10 not in others.

11 So I think all of those would be things

12 that would narrow the circumstances.

13 COMMISSIONER CASTRO: Okay. So

14 Commissioner Kirsanow, and then Commissioner Yaki.

15 COMMISSIONER KIRSANOW: Thank you,

16 Mr. Chair. I'm very interested in this notion of

17 implicit bias, but unfortunately Professor Harris

18 I understand has left. It seems to me that the

19 implicit bias is a possible contributing factor

20 for racial disparities in stand your ground

21 confrontations where the attacker is black.

22 Interested in kind of disaggregating the

23 contributing factors, it seems to me that it could

24 be likely another contributing factor to

25 disparities in stand your ground confrontations,
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2 could be that someone reasonably may believe that

3 they had to defend themselves where an attacker is

4 armed with a gun as opposed to being unarmed or

5 where someone is being confronted in their home or

6 there's a home invasion as opposed to being on the

7 street. So I kind of wonder if, maybe, this is

8 best put to Mr. Roman. In that context, isn't it

9 true that the Tampa Bay Tribune data show that the

10 blacks killed in stand your ground confrontations

11 are 26 points more likely to have been armed with

12 a gun as opposed to whites killed in stand your

13 ground, in nearly 3 to 1 margins are blacks more

14 likely to be killed in home invasions and

15 burglaries as opposed to whites killed in stand

16 your ground confrontations?

17 MR. JOHN ROMAN: Sure, I'm happy to take

18 a crack at that. So -- so two thoughts on that.

19 One is to say supposing that those data that you

20 just quoted are exactly right and reflect the

21 reality that we live in. The -- the -- and that

22 blacks who are killed are 3 times more likely to

23 be, you know, involved in a felony.

24 The fact is that, is a white shooter of

25 a black victim is 10 times more likely to have
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2 that be ruled justified than if it's a black

3 shooter of a white victim. So even if you belive

4 the 3 to 1 is correct, there's still -- or what

5 remains is an enormous racial disparity that's a

6 little hard to understand.

7 I'd also point out Mr. Crump left, which

8 is unfortunate, so I can't say this -- but we were

9 interested in trying to get to the other data that

10 you just asked about -- (inaudible) -- and think

11 about what are the other attributes of these

12 incidents that we can observe in the data that

13 tell us something about the likelihood that a

14 shooting is ruled to be justified. And in

15 addition to the cross race stuff, if the shooter

16 is older than the victim the likelihood that it's

17 ruled justified goes way up. If they're strangers

18 it goes way up. If it's a firearm it goes way

up. If it's a member of law enforcement it goes

19 way up. To the point where if you were to create

20 -- and it's a very small number of cases across

21 these six years. But if you were to create a fact

22 pattern that mirrored the Trayvon Martin/George

23 Zimmerman incident where you had two strangers, a

24 firearm was used in a homicide, the shooter is
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2 white, and as we discussed Mr. Zimmerman would be

3 classified in the state as being white. The

4 victim is black, the shooter is older than the

5 victim, you would find that in those cases it's

6 ruled to be justified a little more than a third

7 of the time. 34 percent of the time compared to

8 2.5 percent overall of all homicides.

9 So in the fact pattern in the Trayvon

10 Martin/George Zimmerman case, you know, that is

11 actually the fact pattern that we can observe in

12 the data that is most likely to yield a

13 justifiable homicide.

14 And even if you believe this sort of 3

15 to 1 ratio, which may very well be true, you know

16 like I said they had a convenience sample --

17 cases. It's hard to generalize from that, but if

18 it's true, boy, you know, 34 percent compared to 3

19 percent when the facts are reversed is still an

20 enormous disparity.

21 COMMISSIONER CASTRO: Commissioner Yaki,

22 you have the last question. Your mic's not

23 working. There you go.

24 COMMISSIONER YAKI: This is for

25 Mr. Gerney. Doesn't the presence, availability,
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2 access to a gun make the problems of implicit bias

3 in stand your ground cases even more problematic?

4 I mean, it's one thing to say,"I may

5 have an unconscious reflexive action against

6 someone because of their race." It's another

7 thing when you have that unconscious reflexive

8 action when you have a Smith and Wesson strapped

9 to your hip.

10 MR. ARKADI GERNEY: Yes. And it's

11 another thing when, in an increasing number of

12 states, concealed carry permit holders can bring

13 those guns into bars.

14 So, I think, yes, I think that's exactly

15 right. And when you look at, you know, generally

16 at crime data in the United States you find that

17 the United States is in the middle range in terms

18 of highly industrialized countries in terms of

19 crime. And in terms of violent crime there is one

20 place where it's way out of the normal range which

21 is murder and where it's 45 times higher. Firearm

22 murders, you know, 10 times higher.

23 And so, yes, a gun changes the equation.

24 And if we're, you know, if we're going to have a

25 -- if we're going to have a society where guns in
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2 bars are the norm and we have stand your ground

3 laws, and we have extremely lax standards for who

4 can get a permit to carry a gun you're going to

5 have confrontations. I think there was a

6 reference to the alcohol-fueled confrontations

7 that happen all of the time in bars and other

8 venues that will have lethal consequences and

9 obviously that's bad for everybody involved,

10 whether it's determined to be a justified shooting

11 or an unjustified shooting, you've basically got

12 two lives ruined at the end of that equation.

13 COMMISSIONER CASTRO: Well, thank you.

14 We want to appreciate all of the information that

15 you all provided us this morning. And thank you

16 for appearing, we're now going to take a brief

17 break for lunch. We will reconvene at 1:50, that

18 is 10 minutes to 2:00 back here in this room.

19 Thank you, everybody.

20

21 (End of Panel Number 2, Volume II. Lunch recess,

22 Proceedings will continue in Volume III.)

23

24

25
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3 CERTIFICATE OF REPORTER

4

5

6 STATE OF FLORIDA

7 COUNTY OF POLK

8

9 I, Kathy Wescott, Certified Shorthand

10 Reporter, do hereby certify that I was authorized to

11 and did report in Stenotypy and electronically the

12 foregoing proceedings and evidence in the captioned

13 case and that the foregoing pages constitute a true and

14 correct transcription of my recordings thereof.

15 IN WITNESS WHEREOF, I have hereunto affixed

16 my hand this 28th day of October, 2014, at Lakeland,

17 Polk County, Florida.

18

19

Kathy Wescott, CSR

20 Court Reporter

21

22

23

24

25
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0

2 0

3 THE UNITED STATES COMMISSION ON CIVIL RIGHTS

4 BRIEFING ON STAND YOUR GROUND

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6

7

8

9 Place: The Rosen Hotel

9700 International Drive

10 Orlando, Florida 32819

9:00 a.m. - 3:00 p.m.

11

12

Date: October 17, 2014

13

14

Reported by:

15

Kathy Wescott, CSR

16

17

18

19

(Volume 3, pages 1 through 100, p.m. session, Panel

20 Number 3)

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22

23

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25
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3 Present:

4 Commissioner Michael Yaki

5 Commission Roberta Achtenberg

6 Marlene Sallo

7 Commissioner Marty Castro (Chairman)

8 Commissioner Karen K. Narasaki

9 Commissioner Patricia Timmons-Goodson

10 Commissioner Gail L. Heriot

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12

13 Appearing by phone:

14 Commissioner David Kladney

15 Commissioner Peter Kirsanow

16

17 Panel Number 3:

18 Elizabeth Burke

19 John Lott, Jr.

20 David LaBahn

21 Ilya Shapiro

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23

24

25
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3 COMMISSIONER CASTRO: Are Commissioner's

4 Kirsanow and Kladney on the phone.

5 COMMISSIONER KLADNEY: Just talking

6 baseball.

7 COMMISSIONER CASTRO: Okay. Good.

8 COMMISSIONER YAKI: Go Giants.

9 COMMISSIONER CASTRO: It is 1:57 and we

10 are coming back from the lunch recess for our

11 afternoon panel. So just housekeeping for the

12 panelists that are here, I assume many of you were

13 probably here this morning, but in case you

14 weren't you'll each have 8 minutes to speak. That

15 will be governed by the series of warning lights

16 here. Green mean starts. Yellow's going to be

17 your two minute warning to begin to wrap up, and

18 three is, please conclude. There will be an

19 opportunity to elaborate when we as commissioners

20 begin to ask you questions.

21 So let me briefly introduce the

22 panalists in the order in which they will speak.

23 Our first panelist is Elizabeth Burke

24 from the Brady Center to Prevent Gun Violence.

25 Our second panelist is John Lott, who's
1 4

2 -- right there -- the Crime Prevention Research

3 Center.

4 Our third panelist is David LaBahn from

5 the Association of Prosecuting Attorneys.

6 And our fourth panelist is Ilya Shapiro

7 from the CATO Institute.

8 Our fifth panelist was not able to make

9 it, Ronald Sullivan, who was from Harvard Law

10 School. Well, I presume we'll get his statement

11 for the record.

12 I'll now ask each of the panelists to

13 swear or affirm that the information that you are

14 about to provide us is true and accurate to the

15 best of your knowledge and belief.

16 Is that correct?

17 PANELISTS: Yes.

18 COMMISSIONER CASTRO: Okay. Thank you.

19 Miss Burke, please proceed.

20 MS. ELIZABETH BURKE: Thank you. And I

21 would like to --

22 COMMISSIONER CASTRO: You need to speak

23 into the mic, please.

24 MS. ELIZABETH BURKE: Thank you so

25 much --
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2 COMMISSIONER CASTRO: A little closer.

3 MS. ELIZABETH BURKE: So I didn't forget

4 a tie today but I did bring a small electric fan

5 that I had intended to place here, but I didn't

6 want to set anything off.

7 In all seriousness --

8 COMMISSIONER YAKI: -- you just insulted

9 our host air conditioning -- so --

10 (Laughter)

11 MS. ELIZABETH BURKE: I'd like to thank

12 the commission for convening these panels to study

13 the legality and appropriateness of the stand your

14 ground laws.

15 As you know my name is Elizabeth Burke

16 and I'm an attorney with the Brady Center to

17 Prevent Gun Violence. And I'm a litigator with

18 our Legal Action Project.

19 The Brady Center was at the forefront of

20 opposing Florida's enactment of stand your ground.

21 Which we called at the time, appropriately, a

22 "shoot first" law.

23 The tragic shooting deaths of Trayvon

24 Martin and Jordan Davis really realized our fears

25 about these laws. If a law is found to have a

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2 pernicious and disparate impact on certain groups

3 in our society it must certainly be identified and

4 challenged.

5 Any law that creates a more dangerous

6 society should be viewed with suspicion and

7 subjected to the kind of thorough review that

8 we're doing here today.

9 So to go back a bit. Before stand your

10 ground in order to justify the use of force in

11 defense of self it was under the longstanding

12 Castle Doctrine, which was derived from common

13 law, a person was entitled to stand his ground in

14 his or her home where nobody else had the right to

15 be.

16 In public places, however, where

17 everyone has the right to be, there the law

18 imposed a reasonable requirement to avoid conflict

19 if possible.

20 The law also required that a defendant

21 prove that he believed force was necessary for his

22 defense and he needs to prove his force was

23 reasonable.

24 Those were part of the tenets of

25 common law of -- self-defense. There was logic to
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2 those requirements, that a defendant should show

3 that his fear was reasonable, after all we

4 shouldn't allow someone to unnecessarily shoot

5 someone else simply because the shooter sort of

6 wrongly perceived himself to be in harms way.

7 Self-defense law was intended to

8 minimize conflict and preserve life. And those

9 are objectives that one would hope everyone could

10 agree on.

11 Stand your ground did away with these

12 sensible requirements. At its core the law allows

13 people to treat public spaces as their castles,

14 thereby attempts to eliminate the duty to avoid

15 conflict when possible.

16 As Trayvon Martin's killer George

17 Zimmerman knew about stand your ground laws it

18 could well be that these laws emboldened him to

19 continue to follow Trayvon even after the 911

20 dispatcher told him to stay in his car.

21 Additionally, under certain cases of

22 stand your ground the law's now give a stand your

23 ground shooter the right to use deadly force and

24 they are presumed to have a reasonable fear.

25 In other words, they don't really even
8

2 have to put in evidence that they were in fear if

3 they shoot on their property or in other limited

4 cases, but the fact is that in those cases the

5 stand your ground defendant is the only surviving

6 person available to testify and therefore the

7 presumption is going to carry the day in those

8 cases, and it can result in an innocent verdict in

9 what would actually be a non-justified homicide.

10 We've heard a lot about quotes from

11 Brown versus U.S., Justice Harlan. And there's

12 another case that's cited a lot in the stand your

13 ground proponents’ testimony.

14 I think it's important to know the facts

15 of those cases. One is Beard. In the Beard case

16 those actually -- on Mr. Beard's property, three

17 individuals came on to his property in order to

18 steal his cow. And they told him "We're coming to

19 steal your cow or take your cow, and if you get in

20 our way we will kill you."

21 The three of them were approaching on

22 him, on his property, one of them looked as if he

23 was drawing a gun, and Mr. Beard hit them on the

24 head. One of them died.

25 So that is one stand your ground case
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2 that has been used to prop up stand your ground

3 and say this isn't really a departure from

4 self-defense, when in fact it is, because those

5 are pretty stark circumstances, I think everyone

6 agrees, if you're on your own property being

7 attacked by three people you have a right to

8 defend yourself.

9 Similarly in Brown -- in the Brown case

10 that Justice Harlan, we heard that famous quote

11 from Justice Harlan. In that case Mr. Brown had

12 been attacked by this other person twice before

13 and had been told that he was going to be killed

14 by him. So he had a gun at the ready.

15 And when that person came on to his work

16 site he, unfortunately, had to use the gun. Even

17 though he saw the person, was able to go get the

18 gun, came back and defended himself.

19 And the Supreme Court said at that

20 point, "You don't have to wait to be attacked."

21 Although, in that case Mr. Brown was being

22 stabbed.

23 So that's just background as we hear

24 these important quotes that are held up as well,

25 the law supports stand your ground. In fact, this
10

2 is a departure. So when we review changes to the

3 self-defense doctrine, it's important to look at

4 them in the context of our current gun laws and

5 realize that any consideration of relaxing

6 self-defense laws should be viewed in the context

7 of an increasing arming of American citizens.

8 There's been, as Mr. Gerney mentioned in

9 the last panel, a recent revision to who can carry

10 a concealed weapon in public. And as you know now

11 we have concealed carry's the law of the land in

12 almost every state. Many states have a

13 shall-issue regime in that there really isn't even

14 an opportunity for police to say "this is a

15 dangerous individual who should not have a gun."

16 More and more, even in constitutional

17 carry states, a person who's allowed to own a gun

18 can carry it anywhere they don't even have to have

19 a permit. They don't have a make an application.

20 And there's actually no point of contact for

21 police to try and prevent tragedy.

22 Finally, and I see my time is running

23 short. So when you look at stand your ground laws

24 within the combination of sort of the lax

25 concealed carry laws and the increasing
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2 militarization and lethality of the weapons, and

3 then you combine that with the civil immunity

4 discussion we were having earlier where the stand

5 your ground laws shift the cost of violence. They

6 take away the potential risk to a shooter by

7 giving him civil immunity. And they -- therefore

8 they eliminate the generally accepted American

9 rule and leave really only the wealthy individuals

10 able to bring actions against shooters in an

11 effort to bring change to society.

12 So this -- this combination of shifting

13 immunity and lax concealed carry laws are

14 combining to make a very dangerous situation in

15 states that have also enacted stand your ground.

16 So, again, as I said we're very

17 interested in continuing the discussion on this.

18 And I'd like to get back quickly if I

19 could to the dramatic testimony about someone

20 punching you and you being able to then shoot

21 them. If we think about that in a land with

22 concealed carry, someone -- you know, a drunken

23 stranger punches you and you shoot them and you've

24 now taken a life, and I contend that's no small

25 matter for either party, right?
12

2 If you don't have a gun with you -- if

3 you don't have concealed carry allowed everywhere,

4 someone punches you, you have a black eye, and a

5 complaint for assault. You know, and that's

6 really what we need to think about when we put in

7 place laws that relax self-defense, but at the

8 same time increase access to guns we're just

9 creating a more dangerous society.

10 COMMISSIONER CASTRO: Thanks,

11 Miss Burke. Thank you.

12 Mr. Lott, you have the floor.

13 MR. JOHN LOTT: Well, thank you very

14 much Mr. Chairman and commissioners for inviting

15 me here today to talk.

16 I'm -- have a PowerPoint here that I

17 think may help a little bit. Let me just make a

18 couple of quick comments before I get into that.

19 And that is, people many times today have talked

20 about Florida as starting some new law, in fact,

21 there have been stand your ground type rules even

22 in common law going back to some states since

23 they've been part of the Union. California, for

24 example. In other states have essentially had

25 this is not some new experiment that's going on
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2 for the first time here.

3 You know, there's a reason why states

4 have adopted stand your ground laws, it's not

5 something that just sprung up. There's issues

6 about certainty for the person who's using a gun

7 defensively when you go and you say that people

8 have to, you know, reasonably retreat as far as

9 possible you create doubt in people's minds. How

10 far should I actually have to retreat? And as the

11 appendix in my testimony to you all goes through a

12 number of cases where there's been real issues

13 about prosecutors bringing cases when, you know,

14 there's been differences, you know when --

15 somebody's been knocked down three times and the

16 prosecutor said, "you still could have gotten up

17 and tried to run away a fourth time." And the

18 person thought that the third time he had been

19 knocked down, at that point he pulled out the gun

20 to go and defend himself.

21 Now, if we look at the Tampa Bay Tribune

22 data which has been talked a lot about today.

23 They have cases from -- that were brought from

24 2006 to 2014. Blacks make up about 16.7 percent

25 of Florida's population. They make up about 34
14

2 percent of the stand your ground cases. So

3 they're -- they're much more likely than the

4 average Floridian, blacks are, to go and use stand

5 your ground. And they're more successful when

6 they do use it. Blacks who use stand your ground

7 are 4 percentage points more likely not to face --

8 not to have criminal charges than a white in that

9 same situation.

10 Earlier today among, for example on the

11 first panel -- he pointed out that -- what was

12 mentioned a couple of other times is that if you

13 look at the Tampa Bay Tribune data 67 percent of

14 those who killed a black faced no penalty, but

15 only 57 percent of people who killed whites faced

16 no penalty.

17 It appears to be discrimination going on

18 there. But what you have to take into account is

19 that it's primarily blacks who kill blacks, and

20 whites who kill whites in these stand your ground

21 cases.

22 So for example, if you look at the Tampa

23 Bay data, a little bit over 76 percent of the

24 cases for blacks involve a black killing a black.

25 In the case of whites, it's slightly over 80
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2 percent of the time there.

3 And when you take that into account what

4 you find is that even though you're not likely to

5 you get a conviction when a black is killed, it's

6 because it's blacks who are killing blacks. And

7 in fact, blacks who use a stand your ground

8 defense are more successful in -- in bringing it

9 than whites are. Hispanics are actually the

10 highest in terms of success for doing that.

11 So, here's the bottom line. If you want

12 to go and declare discrimination in terms of

13 differential rates, in terms of who the vic -- who

14 was shot, why isn't it also discrimination in

15 favor of blacks and Hispanics in terms of the ones

16 who are the ones who shot in that case. I would

17 argue that it's pry not discrimination in either

18 of the cases.

19 If you look at the Tampa Bay Tribune

20 data one of the things that really doesn't get

21 talked is all the other differences across these

22 cases. So blacks who were killed were 26

23 percentage points more likely to be armed with a

24 gun than a white who was killed. Blacks were also

25 25 percentage points more often than whites to be
16

2 in the process of committing a robbery, home

3 invasion, or burglary.

4 You know these types of things as well

5 as other things suggest that maybe there was a

6 reason that they were shot. That there was a

7 reason why, you know, the black victim or whoever,

8 shot these individuals in order to protect

9 themselves.

10 And these differences continue to exist

11 even when you look at the, you know, blacks or

12 whites doing the shooting. Now I run some

13 regressions that I show you because the

14 overwhelming discussion here is just looking at

15 simple averages.

16 And as I say there's huge differences in

17 these cases. You know, whether the person who's

18 being shot had a gun for example, you'd think

19 would be important. Whether there were witnesses

20 there. Whether there was forensics evidence that

21 was involved.

22 You had -- there's lots -- it's a very

23 rich data set. There's lots of things you can try

24 to account for. And the thing is once you account

25 for those things there's no statistically
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2 significant difference between either on the

3 victim's side or the people who are using the

4 stand your ground defense between whites and

5 blacks, they're essentially exactly the same in

6 terms of how the law is treated. Once you control

7 for all of the differences in the cases there.

8 Now one thing we've heard a fair amount

9 today about are justifiable homicides. And

10 there's some real problems with the data. First

11 of all the number of states and number of

12 jurisdictions that are reporting this have

13 increased fairly significantly over time.

14 I'll just show you. Here's just a

15 number of states. Basically it goes from, you

16 know, 29, 28 at the beginning, up to as high as 36

17 towards the end of the period. If you weight

18 those states by population it's actually even more

19 of a dramatic of an increase.

20 Plus you have to realize that for a lot

21 of these states you may only have one police

22 district in the entire state that's reporting the

23 data.

24 On average you end up having some place

25 between about 14 and 18 percent of police
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2 departments in the country reporting justifiable

3 homicides. And it's been changing too in terms of

4 the composition. You're getting police

5 departments for more heavily minority areas

6 reporting towards the end of the period than you

7 did at the beginning. So if I see an increase in

8 justifiable homicides in total or if I see an

9 increase in justifiable homicides involving

10 minorities, a large part of that, if not all, is

11 simply due to the fact that you're having more

12 places reporting. And more places reporting for

13 areas where minorities are living.

14 Now I'm not going to go through Roman's

15 stuff right now, but I'll just mention the Texas

16 A & M study for a minute. Even they, in their

17 paper, recognize that there were many states that

18 had stand your grounds before 2005, but yet they

19 don't include any of them in their sample.

20 There's no explanation for why they include no

21 states before 2005. There's no explanation in

22 their paper for why they don't include crime data

23 or anything else before 2000.

24 Those are -- all seem like important

25 things. There's no explanation why they don't
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2 include stand your ground cases which have been a

3 result of court decisions that were there. And

4 there have been other issues. Brady Campaign,

5 others have mentioned other gun control laws like,

6 right to carry, you argue it's very important in

7 terms of interpreting these laws whether you take

8 into account stand your ground rules.

9 This Texas A & M study had no other gun

10 control laws that were involved there. So there

11 are other problems that I could point to with

12 regard to it.

13 What happens when you try to look at the

14 whole period of time -- I have data that goes back

15 to '77. From '77 through 2012 for all of the

16 states that changed their laws during that entire

17 period of time. And I try to account for other

18 gun control laws. 13 in fact said -- ah, right to

19 carry laws. And when you try to do that this is

20 the change that you see in terms of murder rates

21 for example. I also have evidence there, you

22 know, before and after, so the line there is year

23 zero when the different states adopt the laws and

24 you can see how murder rates are falling in the

25 states that adopt stand your ground rates -- laws,
20

2 relative to the states that don't and how it was

3 beforehand.

4 I appreciate your time. Thank you very

5 much. But the bottom line is that the most

6 vulnerable people in our society are the ones who

7 are taking the greatest advantage of the stand

8 your ground laws and using it most successfully.

9 COMMISSIONER CASTRO: Thank you. Doctor

10 -- I'm sorry, Mr. Labahn.

11 MR. DAVID LABAHN: Thank you Chairman

12 Castro and members of the commission for the

13 opportunity to testify before you today.

14 My name is David LaBahn and I'm the

15 President and CEO of the Association of

16 Prosecuting Attorneys. We're a private nonprofit

17 whose mission is to support and enhance the

18 effectiveness of prosecutors in our effort to

19 create safer communities.

20 APA is the only national organization to

21 include and support all prosecutors, whether

22 appointed or elected, as well as their deputies

23 and assistants.

24 On behalf of APA I'm pleased to have the

25 opportunity to address the issues surrounding the
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2 vast expansion of self-defense referred to as

3 stand your ground or Castle Doctrine laws. In our

4 materials we use the phrase Castle Doctrine

5 because we feel this legislative expansion

6 includes more than merely stand your ground, as

7 the expansion has taken the common law right to

8 protect ones home to any place that one has a

9 right to be.

10 As prosecutors we seek to do justice for

11 victims and to hold offenders accountable for

12 their actions, especially in cases where a life

13 has been violently ended whether by a firearm or

14 other deadly means.

15 During my tenure as the Director of the

16 American Prosecutors Research Institute we

17 convened a symposium of prosecution, law

18 enforcement, government, public health, and

19 academic experts from a little over 12 states.

20 This 2007 symposium was summarized in a

21 2008 report co-authored by my Vice-President,

22 Steven Jansen. In it we expressed serious

23 reservations about the potential impact of the

24 expanded legislation on youth aged 14 to 18.

25 Quoting from the report, "Specifically,
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2 law enforcement considers this age group to be

3 particularly desensitized to violence and more

4 prone to quote "unprovoked violence" as a result

5 of being quote "disrespected." The Castle

6 expansion will not have a deterrent effect on

7 juveniles and young adults claiming to be

8 "disrespected" as a reason for occurrence of

9 assaults, but instead could create a legal shield

10 from criminal and civil immunity."

11 This concern from 2007 has been borne

12 out in the application of an otherwise neutral

13 statute because of the subjective nature of stand

14 your ground. Disparities in age, race, religion

15 and other cultural factors create situations where

16 the subjective perceptions of being in imminent

17 danger are due to disparities between individual

18 and now lead to senseless violence including the

19 taking of another’s life.

20 Since 2009, APA has been tracking the

21 legislative progression of stand your ground and

22 assisted prosecutors who have been working to

23 enforce these expansive new laws. I have attached

24 to my testimony APA's Statement of Principles

25 regarding stand your ground laws as these laws
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2 have raised a number of troubling and dangerous

3 concerns.

4 Prosecutors and their professional

5 associations have overwhelmingly opposed stand

6 your ground laws when they were in their

7 respective legislatures. The concerns expressed

8 include the limitation or even -- I'm sorry, the

9 limitation or elimination of prosecutors' ability

10 to hold violent criminals accountable for their

11 acts.

12 However, even with this opposition, many

13 states have passed stand your ground laws. Many

14 of these laws include provisions that diminish or

15 eliminate the common law "duty of retreat,"

16 changed the burden of proving reasonableness to a

17 presumption, and provide blanket civil and

18 criminal immunity. By expanding the realm in

19 which violent acts can be committed with the

20 justification of self-defense. Stand your ground

21 laws have negatively affected public safety and

22 undermined prosecutorial and law enforcement

23 efforts to keep communities safe.

24 These measures have undermined standard

25 police procedures, prevented law enforcement from
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2 arresting and detaining criminals, and have

3 stymied prosecutors deterring them from

4 prosecuting people who claim self-defense even

5 while killing someone in the course of unlawful

6 activity.

7 In some states, courts have interpreted

8 the law to create an unprecedented procedural

9 hurdle in the form of an immunity hearing which

10 effectively transfer the role of the jury over to

11 the judge. Moreover, because these laws are

12 unclear, there have been inconsistent applications

13 throughout the states and even within respective

14 states. Prosecutors, judges, police officers, and

15 ordinary citizens have been left to guess what

16 behavior is legal and what is criminal.

17 Even with the best efforts to implement

18 these broad measures, defendants, victims'

19 families and friends, investigators, prosecutors,

20 defense attorneys, trial courts, and appellate

21 courts have been forced into a case-by-case

22 analysis with no legal certainty as to what they

23 can expect once that life has been taken.

24 Stand your ground laws provide safe

25 harbors for criminals, prevent prosecutors from
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2 bringing cases against those who claim

3 self-defense, even after unnecessarily killing

4 others. For example, in 2008, Florida case, a 29

5 year old drug dealer named Tavarious China Smith

6 killed two people in two separate incidents. The

7 first was drug-related, and the second was over a

8 retaliation for the first. Though he was engaged

9 in unlawful activity in both instances prosecutors

10 had to conclude that both homicides were justified

11 under Florida's stand your ground law.

12 Unfortunately, this example is not an

13 anomaly. A recent study concluded that the

14 majority of defendants shielded by stand your

15 ground laws had arrest records prior to the

16 homicide at issue.

17 Stand your ground began here in Florida

18 in 2005. And it is our position that the common

19 law did sufficiently protect people's rights to

20 defend themselves, their homes, and others. The

21 proper use of prosecutorial discretion ensured

22 that lawful acts of self-defense were not

23 prosecuted, and I've not seen any evidence to the

24 contrary.

25 After reviewing the legislative history
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2 of the Florida provision, the very case used to

3 justify this broad measure, it involved no arrest

4 or prosecution. The law enforcement community

5 responded properly to the shooting and the

6 homeowner was never arrested or charged in his

7 lawful exercise of self-defense.

8 Because the provisions of stand your

9 ground measures vary from state to state, I'll

10 attempt to summarize some of the provisions which

11 have caused prosecutors difficulty in uniformly

12 enforcing the law.

13 First, the meaning of "unlawful

14 activity" needs to be clarified. Many states have

15 extended stand your ground laws to people who are

16 in a place where they have a right to be -- and

17 you have a right to be and non-engaged in unlawful

18 activity. Can a drug dealer defend his open air

19 drug market? I believe we already had that

20 discussion earlier. If the individual is a felon,

21 does that felon have a right to possess and kill

22 another with a firearm?

23 Secondly, immunity is rarely granted in

24 criminal law, with the few exceptions existing in

25 order to encourage cooperation with law
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2 enforcement and the judicial system. The

3 legislatures should remove the immunity provisions

4 and clarify that self-defense is what it's always

5 been under common law, it's an affirmative

6 defense.

7 Third, the replacement of the

8 presumptions with inferences eliminate -- would

9 eliminate many dangerous effects. This coupled

10 with an objective rather than a subjective

11 standard will improve accountability while

12 protecting the right to self-defense. And that's

13 subjective versus objective is a huge issue which

14 you've heard about today. That -- that is a key

15 provision that this commission should examine.

16 And finally, the statutes should be

17 amended to prevent the initial aggressor from

18 claiming self-defense. Some laws allow a person,

19 including Florida statute, to attack another with

20 deadly force and later use stand your ground to

21 justify the killing of the person he or she

22 attacked if that person responds with like force

23 and the initial aggressor cannot escape.

24 Taken together, I believe these reforms

25 to the various stand your ground laws will help
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2 minimize the racial disparate and detrimental

3 effects and restore the ability of investigators

4 and prosecutors to fully enforce the law and

5 promote public safety, while continuing to respect

6 the rights of law-abiding citizens to protect

7 themselves and their families.

8 On behalf of the APA and the prosecutors

9 we represent, I want to thank you for holding the

10 hearing on the legislation -- and the key with

11 this legislation -- that this is legislation and

12 we would like to see things which promote --

13 promote safe communities rather than promote the

14 use of deadly force.

15 The final issue that I'd like to address

16 would be the Jordan Davis case. In my opinion,

17 the Jordan Davis case is the loss of two lives not

18 one. Jordan, obviously was shot dead. This was

19 the loud music case. He was shot dead because

20 they were listening to rap music and because he

21 disrespected Mr. Dunn. At the same time, Dunn is

22 now, and we just heard today, is going to serve

23 105 years to life. His life is also gone. He was

24 celebrating, I believe, his son’s wedding, he's now

25 going to spend the rest of his life in prison.
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2 Because of stand your ground he felt he

3 had that right and he's on tape saying, "I'm the

4 victim here." That he had the right to take a gun

5 and shoot dead another individual because, in the

6 case of Dunn, he had been disrespected.

7 Thank you, sir.

8 COMMISSIONER CASTRO: Mr. Shapiro.

9 MR. ILYA SHAPIRO: Chairman Castro and

10 distinguished commissioners, thank you for this

11 opportunity to discuss stand your ground laws and

12 potential racial disparities in the constitutional

13 right to armed self-defense.

14 It's most appropriate that we're having

15 this hearing in Orlando, which is so close to the

16 tragic incident that ignited the current

17 incarnation of this public policy debate.

18 Indeed, since George Zimmerman was found

19 not guilty of killing Trayvon Martin stand your

20 ground laws have been under attack. President

21 Obama injected race into the discussion, claiming

22 that the outcome would have been different had

23 Martin been white.

24 Attorney General Holder then claimed

25 stand your ground laws undermine public safety and
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2 sow dangerous conflict in our neighborhoods. Both

3 want these enhanced self-defense laws reviewed,

4 which of course means repealed.

5 In my written statement I reviewed some

6 of the alleged racial disparities in the

7 application of these laws. Since I'm a

8 constitutional lawyer rather than a criminologist,

9 however, I'll leave that statistical analysis here

10 to my panel colleague John Lott. And also

11 PowerPoint's unconstitutional in most uses.

12 Instead let me provide you a legal

13 overview of stand your ground so everyone's on the

14 same page.

15 Not withstanding recent efforts to

16 politicize the issue there's nothing particularly

17 novel, partisan, ideological, racist, or otherwise

18 nefarious about these laws. All they do is allow

19 people to defend themselves without having a

20 so-called duty to retreat -- a concept that's been

21 part of U.S. law for over 150 years.

22 About 31 states now have some type of

23 stand your ground doctrine. The vast majority in

24 common law before legislators took any action.

25 Some, like California and Virginia, maintain stand
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2 your ground without any legislation.

3 Of the 15 states that have passed stand

4 your ground since 2005, the year that Florida's

5 model legislation was enacted, a majority had

6 democratic governors. Leading progressives who

7 signed such bills include; Jennifer Granholm,

8 Janet Napolitano and Kathleen Sebelius(phonetic).

9 Louisiana and West Virginia passed them

10 with Democratic control of both state houses.

11 Even Florida's supposedly controversial law passed

12 the state senate unanimously and split Democrats

13 in the State House.

14 When Illinois strengthened its stand

15 your ground law in 2004 State Senator Barack Obama

16 joined in unanimous approval.

17 Conversely, many so-called "red states"

18 do impose a duty to retreat in public. And even

19 in more restrictive states such as New York courts

20 have held that retreat isn't required at home or

21 when preventing serious crime like rape or

22 robbery.

23 Indeed, it's a universal principle that

24 a person can use force when she reasonably

25 believes it's necessary to defend against an
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2 imminent use of unlawful force; Where there's no

3 duty to retreat, as in most states, she's further

4 justified in using deadly force if it's necessary

5 to prevent forcible felonies. That's the norm

6 throughout the country. Deadly force may be used

7 only in cases of imminent death or great bodily

8 harm that someone reasonably believes can only be

9 prevented by using such force.

10 It's not an easy defense to assert. In

11 almost all states it's a defense. It's not some

12 sort of immunity like Mr. LaBahn said. It's not a

13 get out of jail free card that you play and then

14 you're scot-free. And it certainly doesn't mean

15 that you can shoot first and ask questions later.

16 Everyday criminals assert flimsy

17 self-defense claims that get rejected by judges

18 and juries regardless of whether the given state

19 has a stand your ground law. These laws aren't a

20 license to be a vigilante or behave recklessly.

21 They just protect law-abiding citizens from having

22 to leave a place where they're allowed to be.

23 In other words, in most states, “would be”

24 victims of violent crime don't have to try to run

25 away before defending themselves. That's why the
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2 debate over stand your ground--the real one, not

3 the phoney war that we've been having lately, is

4 nothing new. That's been going on back and forth

5 for centuries. In ancient Britain, when the

6 deadliest weapons were swords, a duty to retreat

7 greatly reduced violent incidents and blood feuds.

8 Firearms were also not as widespread in Britain

9 until recently. So British law continues to

10 reflect the historic deference to the

11 constabulary, by which the King owes a duty of

12 protection to his subjects.

13 That's obviously not part of our

14 tradition. In this country at any given time

15 about half the states have had stand your ground

16 laws. So today's split is well within historical

17 norms. Despite what gun prohibitionists claim, the

18 no retreat rule has deep roots in American law.

19 As Miss Burke alluded at the Supreme

20 Court stand your ground dates to the unanimous

21 1895 case of Beard verus the United States, in

22 which the great Justice John Marshall Harlan the

23 sole dissenter in Plessy (inaudible) v-Ferguson

affirmed the

24 right to armed self-defense.

25 In places with a duty to retreat crime
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2 victims can be imprisoned just for defending

3 themselves. And among those who often lost out

4 under that old rule were domestic violence victims

5 who turned against their assailants. Feminists

6 pointed out that “you could have run away” may not

7 work well when faced with a stalker or someone you

8 live with.

9 Stand your ground laws are thus designed

10 to protect law-abiding citizens. They're less

11 controversial in the context of a home. It's bad

12 enough to have your home burglarized but to then

13 have to hire an attorney and fend off a misguided

14 prosecutor or a personal – injury lawyer defending

15 an injured criminal is too much to ask.

16 That's how we have the Castle Doctrine -

17 recognized by all states -- which holds that you

18 don't need to retreat when your home is invaded.

19 When you extend that doctrine to public spaces - as

20 again, most states do - that's where you get stand

21 your ground.

22 What's been overlooked in the current

23 debate is that these laws only apply to people

24 under attack. So as Justice Oliver Wendell Holmes

25 wrote for again a unanimous Supreme Court in
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2 Brown versus United States, "Detached reflection

3 cannot be demanded in the presence of an uplifted

4 knife." And the facts of those cases, while

5 interesting, don't detract from what the legal

6 principles they stand for. Nearly a century later

7 and regardless of ones views on the scope of the

8 Second Amendment I don't think we can demand more

9 of crime victims trying to defend themselves.

10 Of course any self-defense rule bears

11 the potential for injustice. For example in a

12 two-person altercation one may be dead and the

13 other dubiously claim self-defense.

14 These cases, like, Trayvon Martin's

15 implicate the self-defense justification generally

16 rather than the existence of a duty to retreat.

17 If George Zimmerman was the aggressor then he

18 committed murder and has no self-defense rights at

19 all a whether the incidents took place in a stand

20 your ground state or not.

21 If Martin attacked Zimmerman the only

22 question is whether Zimmerman reasonably believed

23 that his life was in danger, not whether he could

24 have retreated. And if Zimmerman provoked the

25 confrontation, even if Martin eventually
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2 overpowered him, he lost the protection of stand

3 your ground law.

4 And it's not even clear, whether he knew

5 about that law or that people that do

6 invoke it -- sure, their defense attorneys might,

7 but it's not that common that, people on

8 the street know that with any specificity.

9 Of course the Martin/Zimmerman

10 altercation is but one case and a high profile

11 incident where stand your ground didn't actually

12 play a part, so we shouldn't draw any policy

13 conclusions from it.

14 Hard, emotionally wrenching cases make

15 not only for bad law but for skewed policy

16 debates. While demagogues have used Trayvon

17 Martin's death to pitch all sorts of legislative

18 changes, what they really seem to be targeting, as

19 it were, is the right to armed self-defense.

20 With stand your ground laws, yes,

21 prosecutors may need to take more care to show

22 evidence to counterclaims of self-defense, not

23 simply argue that the shooter could have

24 retreated. So it's not surprising that a

25 prosecutor’s organization would be against the law,
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2 and it makes prosecutors work harder sometimes.

3 For those who value due process in

4 criminal justice, which should emphatically

5 include members of historically mistreated

6 minority groups, that's a feature not a bug.

7 Thanks again for having me. I welcome

8 your questions.

9 COMMISSIONER CASTRO: Thank you.

10 Mr. Labahn, is your opposition due to

11 the fact that you don't want to work harder?

12 Could you elaborate on --

13 MR. DAVID LABAHN: Not at all. Thank

14 you for asking me that question. It's not an

15 issue of working harder or not, the question is

16 what is right and just. And to sit here and

17 listen to things like, the Trayvon Martin had

18 nothing to do with stand your ground is completely

19 irrelevant.

20 Trayvon Martin had everything to do with

21 stand your ground legislation. In fact it could

22 not be more stark when one of the jurors was

23 interviewed and said, "I -- I -- We had to

24 reconcile this." Again, that subjective belief

25 that he was under attack. That Zimmerman's head
38

2 was being pounded, and the fact that he could use

3 the deadly force. That is right out of Florida's

4 stand your ground legislation. And even more

5 particularly Florida is dead on point that they

6 provide the use of force by aggressor within their

7 statute.

8 So again to sit here and listen that

9 aggressors cannot use stand your ground in Florida

10 is completely irrelevant and not accurate.

11 Thank you for allowing me to respond.

12 COMMISSIONER CASTRO: You're welcome.

13 Commissioner Yaki.

14 COMMISSIONER YAKI: Thank you very much,

15 Mr. Chair.

16 A couple of comments. One, I was struck

17 by Mr. Shapiro's reference to worrying about bad

18 law coming out of sensational cases when in fact

19 the stand your ground law was based on a

20 sensationalized case involving two people in their

21 RV in 2004, which was whipped up wildly in the

22 media. And as several articles show or it was

23 misrepresented quite amazingly to legislators.

24 But I wanted to talk -- ask Mr. LaBahn

25 something and that is, you point out the
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2 difficulties in the prosecutor aspect of this but

3 isn't there another way to look at this is --

4 isn't this in some ways a delegation of your

5 authority, the jury's authority, a judge's

6 authority, a cop's authority, to a private

7 individual to make decisions in a split second on

8 whether or not to take the life of someone?

9 MR. DAVID LABAHN: Yes. Yes, it is.

10 And that is something that -- it's the -- this is

11 the only place that I know that you could have

12 immunity where your activity is itself potentially

13 criminal.

14 So what you just said and the decision

15 to take a life is an incredible solemn decision.

16 I've had plenty of opportunities in my career to

17 carry a firearm, I've chosen not to do it because

18 I'm not willing to take that responsibility

19 because taking another’s life I -- I don't know

20 that there is another decision that is that grave.

21 But what you've done with this law by

22 putting immunity in here, not an affirmative

23 defense, but literally immunity, you're telling

24 somebody that they can make a decision to do an

25 otherwise criminal act and then seek this hearing,
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2 as we've heard earlier in the panel "I want to get

3 out real quick. I want to take a life. I want to

4 stand behind -- it cannot be properly

5 investigated. I cannot be detained. And I want

6 to be able to walk free on a life and death

7 decision." It is -- I don't know how to express

8 it, it is so extraordinary.

9 COMMISSIONER YAKI: I mean it sounds

10 like something where -- where an officer receives

11 hours, and hours of training on the use of deadly

12 force, on the use of determining whether someone

13 poses a threat to them or not, and here we are in

14 a situation where, essentially, in a public space

15 where there could be any one of us standing

16 around, you're giving the power to a single

17 individual with very little guidance on what

18 constitutes reasonable, what constitutes a threat,

19 what constitutes deadly, and letting them make a

20 decision.

21 MR. DAVID LABAHN: And thank you for the

22 comparison between the law enforcement individual,

23 which is only quasi immunity, and absolute

24 immunity for a private citizen.

25 So if a law enforcement officer takes
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2 another life, first it must be within the course

3 and scope of the employment, that law

4 enforcement's employment. And in addition to that

5 it is an objective standard. Would a reasonable

6 officer in the same or similar circumstances have

7 been required to use deadly force.

8 So, yes, from -- this is extraordinary

9 to say without training, as you talk about very

10 little guidance, that's what I tried to say in my

11 statement. The courts here in Florida have

12 bounced all over the place trying to figure out

13 what this statute means, but with very -- with no

14 training you get absolute immunity.

15 COMMISSIONER YAKI: And let me just take

16 this one step further. And it goes to -- and in

17 the context of a law enforcement officer

18 committing such an act we have remedies within the

19 department of justice to examine the behavior of a

20 police department and whether or not in exercising

21 that they're doing it in a way that has -- that

22 has an unfair or disparate impact in terms of

23 race.

24 When you take that out -- out of that

25 equation and you're doing into a situation where
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2 we have -- we're trying to get statistics that may

3 or may not get reported or -- you can't get to

4 that analysis about whether or not there is any

5 racial -- any -- any overall racial animus

6 involved to the extent that you can -- when a

7 police officer had -- by reporting for an entire

8 department justice can come in and determine

9 whether or not that person or that department is

10 acting in a way that is contrary to equal

11 protection.

12 MR. DAVID LABAHN: Yes. And that would

13 be the comparison here between the -- if you want

14 to call it the Zimmerman case or the Trayvon

15 Martin case and what's going on right now in

16 Ferguson. Because in Ferguson you're seeing all

17 that. You've got an officer under investigation

18 on that and you have the justice department

19 looking at the 1983 action, potentially, yes.

20 COMMISSIONER YAKI: Thank you.

21 MS. ELIZABETH BURKE: If I could just

22 give you a quick quote from the President of the

23 National District Attorneys Association when he

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was asked -- he stated that the stand your ground

laws basically give citizens more rights to use
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2 deadly force than we give police officers and with

3 less review.

4 COMMISSIONER CASTRO: Did you want to

5 say something, Mr. Lott?

6 MR. JOHN LOTT: Yeah. You know, with

7 regard to training, police have a much more

8 difficult job than civilians do. If you're ever

9 going to take a concealed carry class in Florida

10 one of the things that they're going to emphasize

11 is that you're not the police. The reason why

12 you're being given a gun is to maximize the

13 distance between yourself and the attacker there.

14 Police, when they come to a crime scene

15 can't simply brandish a gun and watch the criminal

16 run away. Police have to be willing to pursue the

17 individual and to come into physical contact with

18 them. And that's the vast majority of what police

19 training involves is, how do you deal with

20 somebody when you're coming into physical contact.

21 When you're talking about a woman who's

22 dealing with an attacker, or an elderly person,

23 the large strength differential that's going to

24 exist there is going to mean once you're in

25 physical contact you've completely lost control of
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2 the situation at that point.

3 So to go and make comparisons between

4 the amount of training and -- that civilians and

5 police have, I think, is misleading.

6 I want briefly to say something about

7 the Zimmerman case. Everything that David was

8 just referring to in the case, you know, an

9 aggressor, the different statements that he made

10 were already true under the pre-existing

11 self-defense law in Florida. What changed was

12 whether or not there was a duty to retreat. The

13 duty to retreat was never brought up in

14 Zimmerman's case. In fact, even the prosecution

15 basically conceded that Zimmerman was on his back,

16 there was no place for him to go and retreat at

17 that point.

18 That was the change in the law. And to

19 go and reference the parts of the stand your

20 ground law that were already in effect there, and

21 I'm sure Ilya can probably say more about this

22 too, but it doesn't seem to me to be exactly on

23 target there.

24 COMMISSIONER CASTRO: Mr. LaBahn did you

25 want to respond?
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2 MR. DAVID LABAHN: I don't see how you

3 separate one from the other. So when you put in

4 the inferences, the subjective, the no duty to

5 retreat and the very next section that -- that --

6 you know, as he said, "Well they didn't -- they

7 didn't amend that." How do you say, "Well, we

8 gave all these new benefits and we expanded it,

9 yet we didn't limit the ability of the aggressor

10 to use force and so we didn't intend for

11 aggressors to use force," to me is absolute

12 nonsense.

13 I spent ten years in the legislature

14 working on a lot of different statutes, it is an

15 entire package. And the other thing that I think

16 is continually misleading is to say it's not a

17 stand your ground case because they didn't have a

18 stand your ground hearing.

19 There is a lot more to it than just a

20 stand your ground hearing. It's the -- it's

21 subjective, objective, presumptions, you can't

22 wrap an entire bill package and just say "This is

23 the only one we want to talk about, it's all

24 included."

25 COMMISSIONER CASTRO: Miss Burke, did
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2 you want to say something?

3 MS. ELIZABETH BURKE: Yeah, and just --

4 I just wanted to bring up an additional point on

5 sort of historical self-defense coming -- growing

6 out of common law and then being sometimes

7 codified in state law. But there was always a

8 first aggressor limitation in, sort of, historical

9 self-defense law, in that you could not be the

10 first initiator of violence and then later turn

11 around and invoke self-defense.

12 And I think that's extremely important

13 when we're reviewing the Trayvon Martin case. I

14 mean, let's face it this was a very bad result on

15 every level. And the stand your ground laws in

16 Florida are clearly at issue in that case.

17 COMMISSIONER CASTRO: Commissioner

18 Narasaki.

19 COMMISSIONER NARASAKI: Thank you,

20 Mr. Chair.

21 So my question is to Mr. Lott and

22 Mr. Shapiro. It's a series of questions that are

23 connected. So first is, I'm interested to

24 understand whether you agree that it's important

25 to have accurate comprehensive data to determine
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2 whether in fact equal protection is affected or

3 not affected by this new law.

4 I know that -- that Mr. Lott is very

5 critical of some of the analysis so I'm interested

6 in particular whether the federal government

7 should require data collection for -- connected to

8 being able to get federal law enforcement funding,

9 and if not, what would you do to correct the data

10 situation?

11 Second is, do you support clarifying the

12 law that shooters who want the benefit of stand

13 your ground should not be pursuing the person that

14 they are shooting, that once they begin to pursue

15 them they become the aggressor, that they lose

16 protection of the law?

17 The third is, I'm interested in

18 understanding whether you believe that people

19 should be able to claim immunity for civil

20 liability when a person accidently kills someone

21 who's an innocent bystander?

22 And whether you have concerns about the

23 fact that now that you've increased the area and

24 circumstances under which someone can start

25 shooting other people, whether that in fact is an
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2 increased danger.

3 And the last is, are either of you

4 concerned by the that fact Mr. Zimmerman, given

5 his history seemed to have legal access to a gun?

6 MR. ILYA SHAPIRO: I'll -- start.

7 And I'll defer the very first question about data

8 to John, because that's clearly his bailiwick.

9 And I'll start with the last question

10 because it goes to show how a lot of the

11 questioning I think conflates a lot of different

12 issues. Stand your ground laws are a very

13 kind of narrow technical/legal point.

14 Self-defense justifications are more broad and

15 affirmative defense are also more broad.

17

16 Gun regulations and restrictions which

a whole other sort of debate that's,

18 beyond the scope of this hearing. You know, stand

19 your ground laws are very narrow and very

20 technical. The only difference in stand your ground

21 jurisdictions versus non-stand your ground

22 jurisdictions is what do you have to do if you're

23 being attacked and it's possible to retreat

24 If it's not possible to retreat, like in
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2 the Zimmerman/Martin case then it's only about

3 whether, Zimmerman -- committed the

4 attack or whether he reasonably believed that his

5 life was in danger, these sorts of considerations

6 are concomitant to traditional self-defense

7 considerations, not stand your ground laws in

8 particular.

9 On the immunity point. For civil

10 liability, well I think the laws there haven't

11 really changed. If you're engaged in reckless or

12 willfully gross negligent behavior you can be

13 liable even if you're not intending to hurt

14 somebody else.

15 But if you're acting reasonably or,

16 -- exercising your right to

17 self-defense, then, no, you shouldn't have

18 liability. So the question the familiar

19 question under tort law that exists in both stand

20 your ground and non-stand your ground

21 jurisdictions, again -- so if tort law needs to be

22 changed somehow or recodified that's a separate

23 issue from, the stand your ground law

24 and its operation.

25 And as to shooters shouldn’t be pursuing
50

2 or aggressors who should lose the right to stand your

3 ground, absolutely, I agree with that. And I

4 think that most if not all states have that in

5 their stand your ground laws. And that's why the

6 911 operator told Zimmerman not to pursue.

7 And that, as John was saying, is one of

8 the major differences between people who lawfully

9 -- citizens, private citizens who lawfully carry

10 guns and the police -- the police have to engage

11 and citizens do not.

12 COMMISSIONER NARASAKI: I'm sorry, you

13 might have said it and I missed it, but did you

14 answer my question about whether you were troubled

15 that he had an access to a gun?

16 MR. ILYA SHAPIRO: Oh, Zimmerman?

17 COMMISSIONER NARASAKI: Yes.

18 MR. JOHN LOTT: I can answer that --

19 MR. ILYA SHAPIRO: I'm sorry?

20 MR. JOHN LOTT: I can answer that.

21 MR. ILYA SHAPIRO: -- I

22 don't know the full facts of his -- you know, I

23 understand that he had some alcohol issues in the

24 past. I don't know if he had committed any

25 felonies or done anything that was -- rose to the
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1

2 level of being deprived of a particular civil

3 right to armed self-defense. You know, I'm -- you

4 know, given what's -- what's happened since maybe

5 there is more history to that. But in the

6 abstract, you know, I guess, no.

7 COMMISSIONER NARASAKI: So -- and

8 perhaps Mr. Lott would like to, I think, correct

9 your understanding of what the Florida law says on

10 civil liability. Unless the people that have been

11 testifying all morning are wrong in how they

12 characterized it to us.

13 MR. JOHN LOTT: Yeah, well I'm not a

14 lawyer so I'll let Ilya speak for himself on that.

15 I -- I can answer the empirical

16 questions that you raised. You know, to me the

17 issue of Zimmerman getting a permit or not, you

18 know, obviously Florida has given out -- what is

19 it, like 2.6 million concealed handgun permits --

20 or permits to 2.6 million people since they first

21 started being issued on October 1, 1987.

22 Right now there's like 1.4 million

23 people who actively have permits. The average

24 person who's had permits over that time has had a

25 permit for something like 12 and a half years. So
52

2 you've -- 2.6 million people for all of those

3 years. Florida, their website for example, has

4 detailed data on revocations over time. If you

5 look at firearms revocations between January 1,

6 2008 and the end of 2011, they had 4 firearm

7 revocations. But, revocations for any type of

8 firearms related violation. That comes to

9 revocation rate of about 1/10,000th of 1 percent

10 in terms of the permits that were there.

11 If you look at the entire period of time

12 from 1987 on there was 168 revocations. You're

13 talking about something that's akin to about a

14 thousandth of a percent.

15 So the bottom line to me -- and most of

16 those revocations were for things that had

17 absolutely nothing to do with violence. Most of

18 them were people accidently carrying a permit

19 concealed handgun into a gun-free zone. Or people

20 forgetting to have their permit with them when

21 they would be stopped by police or something.

22 And, so the issue here is are there --

23 is there a safety problem in terms of people with

24 permits somehow getting permits improperly, is it

25 something that you can even measure.
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2 If you look at firearms revocation rates

3 for Floridians it's actually --

4 COMMISSIONER NARASAKI: I -- I actually

5 just wanted to know whether you're troubled or

6 not, I don't need the whole --

7 MR. JOHN LOTT: No, I'm not troubled in

8 general because if you look at the way the

9 Florida's system's working it seems to work

10 incredibly well. I mean --

11 COMMISSIONER NARASAKI: Well, 4

12 revocations out of 2,000 and whatever and there's

13 no problem, okay.

14 MR. JOHN LOTT: Million. So the -- the

15 rate that permit holders in Florida are involved

16 in crimes with their permit concealed handgun is

17 1/7th the rate that police officers end up getting

18 into trouble for firearms related violations.

19 COMMISSIONER CASTRO: Ah --

20 COMMISSIONER NARASAKI: Could he answer

21 the data question --

22 COMMISSIONER CASTRO: Yeah, would you

23 please.

24 MR. JOHN LOTT: Yeah, I'm sorry. The

25 data question, look more data's great. Okay. I
54

2 use data all the time on stuff. I don't mind

3 having data. The only thing I would ask is that

4 if you're going to have data it needs to be more

5 than just justifiable homicide and race.

6 COMMISSIONER NARASAKI: Right. So you

7 would support tying federal funding to trying to

8 get better data, is the question?

9 MR. JOHN LOTT: I'll leave that up to

10 the politicians on how to -- what's the best way

11 to try and go and do that. I'm just saying, sure

12 there's a benefit from having more data in terms

13 of being able to study things.

14 COMMISSIONER CASTRO: Commissioner

15 Heriot, then Commissioner Achtenberg. And do any

16 of the commissioners on the phone want to ask a

17 question?

18 COMMISSIONER KIRSANOW: Yes, Kirsanow

19 would like one question.

20 COMMISSIONER CASTRO: Okay.

21 COMMISSIONER KLADNEY: Kladney would

22 like a question.

23 COMMISSIONER CASTRO: Okay. So

24 Commissioner Heriot you're next, followed by

25 Commissioners' Achtenberg, Kirsanow, and Kladney.
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2 COMMISSIONER HERIOT: Thank you,

3 Mr. Chairman. I actually have just a quick

4 question for Dr. Lott.

5 The previous panel, Dr. Roman,

6 criticized an aspect of your work and I just

7 wanted to give you a chance to comment on that.

8 MR. JOHN LOTT: Sure. And I appreciate

9 that. Look, there are multiple things that John

10 brought up. One of the things that he was --

11 brought up was the superiority of using the

12 justifiable homicide data for the United States as

13 a whole versus the Tampa Bay Tribune data that was

14 there, saying that it was, you know, an arbitrary

15 quote "selective sample" that had been done for

16 the Tampa Bay Tribune.

17 The Tampa Bay Tribune article is

18 essentially the universe of stand your ground

19 cases. It's not a sample. It has all the cases

20 there. The problem that you have, if you want to

21 talk about real sample issues, that's what the

22 justifiable homicides -- in some years you have 14

23 percent of the police jurisdictions in the country

24 reporting justifiable homicide rate data. And

25 there's even massive problems as Bill was talking
56

2 about earlier in response to questions from

3 Commissioner Heriot, with regard to the fact that

4 they don't go back and correct these things

5 systematically. There's all sorts of errors even

6 in that small percent that you have there. And so

7 the question is, what places report? Why did they

8 report it? What are the errors in their data

9 that's there?

10 But here's -- here's the big problem and

11 Commissioner Castro when you read that quote and

12 as the end of it there it actually gets the

13 opposite results, if you have a copy of his paper

14 and I don't know if for some reason it didn't get

15 up there. If you look at Table III of his

16 reports, what he has is, he has a column for the

17 rate of justifiable homicides for black-on-white,

18 white-on-black, for non-stand your ground states,

19 and for stand your ground states. If you look at

20 the coefficients for the non-stand your ground

21 states essentially, when a white kills a black he

22 has a coefficient of like 41, and the coefficient

23 of 7 for blacks killing whites. So it's a ratio

24 of about 5.4 to 1. So it's saying whites who kill

25 blacks are 5.4 times more likely to be found
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2 justified in terms of the homicides than blacks.

3 But then if you look at the stand your

4 ground states the ratio of the coefficients

5 actually falls to 4. So rather than exacerbating

6 it, he simply doesn't -- didn't read his

7 coefficients correctly.

8 And so -- also when he talks about 10 to

9 1, his regressions actually show 4 to 1 difference

10 for stand your ground rather than the 10 to 1 that

11 he was saying. And the problem that you have

12 there is that when you bring up the type of things

13 that Commissioner -- a commissioner earlier was

14 asking him about the 3 to 1 differences just in

15 terms of whether the person was armed. You pretty

16 much can explain away the differences even just

17 for one of the factors that are there.

18 And so -- and he also doesn't take into

19 account whether all of the things that are

20 statistically different in the right way and makes

21 mistakes there in that too.

22 So his results actually showed the

23 opposite of what he was claiming. Rather than the

24 stand your ground laws exacerbating it, it

25 actually reduces the difference in the coefficient
58

2 between black and whites that are there.

3 And, you know, there are other issues

4 we've been talking about with the general issues

5 about justifiable homicide data. He does not

6 attempt to account for any of the changes that are

7 occurring over time in the data. He doesn't

8 adjust it for the different places that are

9 reporting over time. Lists -- he takes the data

10 as if he doesn't understand any of the problems in

11 the underlying data.

12 I'll just give you one other trivial

13 example. As I mentioned, over time more states

14 are reporting the data. You have more

15 jurisdictions reporting the data. Well, if stand

16 your ground states tend to be adopting the, you

17 know, relatively later in the period compared to

18 the other states that are there just by having the

19 time trend in there you're going to end up having

20 them have higher rates of justifiable homicide

21 than the earlier ones would be. And, you know,

22 that's just a simple example of the types of

23 biases that you create in there if you don't try

24 to de-trend these things in terms of things like

25 the number of places that are reporting.
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2 COMMISSIONER CASTRO: And just let me

3 add for the record since Dr. Roman's not here

4 right now we're going to ask him to supplement his

5 response based on what you've explained today --

6 MR. JOHN LOTT: I wish we could have

7 debated on here. I've been emailing your staff --

8 COMMISSIONER CASTRO: Well, we're going

9 to -- well, this is not a debate, this is a

10 hearing. But maybe one day we'll have a debate

11 and you all could come in and we'll sell popcorn,

12 but we're going to ask Dr. Roman to have the

13 opportunity to present us with data along the

14 lines of responding to what you said that way we

15 have a complete record when we evaluate the data.

16 Commissioner Achtenberg.

17 COMMISSIONER ACHTENBERG: Thank you,

18 Mr. Chairman. Mr. LaBahn I'm curious, does the

19 Prosecutors Association typically take the kind of

20 definitive position that you've taken with regard

21 to stand your ground laws based on bad data, bad

22 facts, and the fact that, you know, there's really

23 not a departure here from the common law, at least

24 according to some lawyers.

25 I mean, I was quite frankly, quite
60

2 intrigued by the position of the Prosecutors

3 Association, understanding as I do that you're not

4 part of the group of typical suspects, you know,

5 to be taking the position that you're taking.

6 I'm wondering how you could explain to

7 us how it is that your organization came to take

8 this position?

9 And then, secondly, could you talk to

10 the commission about what it is you think the

11 commission might be in a position to do about

12 something that you seem to see as egregious as

13 your prior testimony indicates.

14 MR. DAVID LABAHN: Okay. Thank you. So

15 first the question of taking legislative positions

16 based upon bad data or -- or something in that way

17 and also my organization itself.

18 First, on behalf of APA, The Association

19 of Prosecuting Attorneys, our National

20 Association, we do not have a position on stand

21 your ground laws. We have the Statement of

22 Principles that is attached to my materials, but

23 we do not either support or oppose, because as I

24 said in my testimony, a lot of the states have

25 implemented the laws, there's a separation of
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2 powers, once legislature passes this, the

3 Executive Branch needs to enforce it.

4 As it relates specifically for instance

5 here in Florida. Florida to Florida prosecutors

6 -- the State Association opposed the legislation

7 and the legislature went ahead and passed it

8 anyway. And the majority of the states that have

9 passed legislation back then, generally law

10 enforcement has been opposed to it. The reason

11 why, it isn't necessarily based on data, it is --

12 an example, what happened here -- this is

13 legislation searching for a problem, instead of

14 legislation addressing an issue or a problem.

15 Having --

16 Even hearing that California is a stand

17 your ground state surprises me immensely. I was a

18 10 year prosecutor there in that state, I

19 prosecuted plenty of homicides and lots of

20 violence, especially in Southern California.

21 I then spent 10 years at the State

22 Association. I was running the California

23 District Attorneys Association when the proponents

24 of this legislation -- it was 2006, they brought

25 it to Sacramento and they tried to put the bill
62

2 in. We laughed at it. We laughed that you're

3 going to have criminal immunity and civil immunity

4 for taking somebody else's life. We thought it

5 was almost funny that -- you've got to be kidding

6 me.

7 So to hear it's a stand your ground

8 state, I would submit to you it's not. What

9 happened in California, it went to its very first

10 committee, which was the judicial committee and

11 the judicial committee it never even got a motion

12 because the trial lawyers had control of that and

13 you're going to give civil immunity to -- the

14 legislation was over.

15 What we instead would say is, and I

16 would ask this committee is, this isn't is an

17 entire legislative package, it's not as narrow.

18 You could have changed the Florida law or it could

19 have been done by just putting in a duty to

20 retreat or wiping out that duty to retreat.

21 But that's instead not what this was.

22 This is an entire package including the -- and

23 we've talked about subjective versus objective.

24 In the world of a prosecutor that's a huge change.

25 That's not a minor little detail. In fact we've
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3

2 got to prove that beyond a reasonable doubt. The

3 -- any place that the individual has a right to

4 be, that's a vast expansion when you take Castle,

5 which had been the home or even some of them even

6 look at home, a place of employment, and some have

7 even extended it to cars.

8 But then when you legislatively say

9 "anyplace that you have a right to be," that's,

10 again, a very vast expansion and a very big

11 concern as it relates to how is this going to

12 actually end up in the courts.

13 The presumption. The presumption of

14 reasonableness in your own home. You don't need

15 to have any sort of reasonable fear under this

16 legislation and this draft. It was -- it was

17 instead said if it's in the house you can shoot

18 anybody no matter what you feel about them. If

19 they don't have a right to be in your home you can

20 shoot them dead. That presumption is

21 extraordinary, you know?

22 And then, finally, as we just discussed

23 the immunity. Just as when you are working to

24 -supplement your record, I would ask that you look

25 at the entirety of the Florida legislation and see
64

2 whether or not it's as has been suggested here

3 that they just added duty to retreat or whether

4 they added the four pieces. And that's what we've

5 been doing on behalf of the Association is we have

6 been tracking -- we've been working with various

7 states on what does their legislation mean. And

8 it's all up to each State Association whether they

9 support it or oppose it or even the individual --

10 But we have specific columns, if you go

11 to our website, of the states that have done the

12 expansion, and on the four points which states did

13 which expansion.

14 And that's why we start our research at

15 2005, because I would submit to you prior to 2005

16 the concepts that have been talked about today,

17 especially these immunity provisions, presumptions

18 and such, didn't exist before this legislative

19 piece came forward.

20 So that is the reason why we did it. We

21 would -- and always on behalf of prosecutors I'm

22 now working in Washington, we're always ready to

23 come to the table. There are plenty of problems

24 within our justice system. We like to have the

25 data behind it. We like to know what the problem
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2 is.

3 And, especially, on behalf of

4 prosecutors we're trying to make things safer.

5 And that's why we continually come to the table to

6 try to make the justice system work better. Not

7 easier, not faster, but better. And work on

8 legislative reforms.

9 This has never been one that we have

10 seen to be a problem, and hence need to work on a

11 reform.

12 ILYA SHAPIRO: Can I clarify something?

13 COMMISSIONER CASTRO: Sure.

14 ILYA SHAPIRO: Mr. LaBahn said that he

15 was surprised that I classified California as a

16 stand your ground state. As I think I was

17 explicit, a lot of the stand your ground states

18 are common law stand your ground states.

19 And among the 31 or so states that you

20 count as -- that I count as stand your ground

21 states, there's a lot of variation in the

22 legislative package or what the common law

23 protects or what have you. So I don't remember

24 the California specifics right now, but whether

25 it's, you know, just protecting in your car or
66

2 place of employment, like Mr. LaBahn said, those

3 31 states include protections beyond the home.

4 That's what basically works as stand your ground,

5 and that's why this innovation in the law which as

6 I said isn't an innovation it's 150 years old, is

7 just pushing the normal Castle Doctrine in the

8 home which certainly doesn't --

9 COMMISSIONER ACHTENBERG: So you're

10 talking about an expansion of the places from

11 whence one can claim the stand your ground

12 defense. Is that what you're talking about in

13 terms of California?

14 Do we have the subjective standard? Do

15 we have immunity?

16 COMMISSIONER YAKI: It's -- it's -- a --

17 COMMISSIONER CASTRO: Go ahead.

18 Commissioner Yaki, go ahead, please.

19 COMMISSIONER YAKI: I need -- I need to

20 -- with all due respect to Mr. Shapiro that --

21 he's wrong. It's not -- California is not a stand

22 your ground state. There are -- there are

23 instances in -- there are some very vague jury

24 instructions that talk about the fact that if

25 you're being -- if someone's trying to kill you,
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2 you don't have to sit there and be killed, but it

3 doesn't -- it's not a situation that -- that

4 imposes the same kind of immunity from liability.

5 They're all different -- they're all different --

6 this is where -- this is where in some ways we're

7 conflating the idea of self-defense with stand

8 your ground. It is not a stand your ground state.

9 It is like many other states, a

10 self-defense state, but California Supreme Court

11 has never opined to this day the extent to which

12 that extends beyond -- beyond the home.

13 COMMISSIONER CASTRO: Commissioner --

14 MR. ILYA SHAPIRO: I've never -- sorry.

15 COMMISSIONER CASTRO: No, go ahead.

16 MR. ILYA SHAPIRO: I've -- I've never

17 claimed that California is a stand your ground

18 state, if we're defining stand your ground as

19 accepting the package legislation modeled after

20 Florida. That's certainly not what I intended to

21 mean.

22 COMMISSIONER CASTRO: Commissioner

23 Achtenberg, I'm sorry, I cut you off.

24 COMMISSIONER ACHTENBERG: No, that's

25 fine Mr. Chairman. That clarification is
68

2 sufficient.

3 COMMISSIONER CASTRO: Okay.

4 Commissioner Kirsanow.

5 COMMISSIONER KIRSANOW: I think that

6 Commissioner Kladney had his hand up first.

7 COMMISSIONER CASTRO: Okay. You have

8 very good eyesight Commissioner Kirsanow.

9 (Laughter).

10 COMMISSIONER KLADNEY: Such courtesy, I

11 have to tell you.

12 I'd like to ask. I think it's

13 Mr. LaBahn, from the prosecutors office and

14 anybody else on the panel. I just want to get

15 this clear, when we refer to the Florida statute,

16 and I'd like to refer to the Florida statute

17 because I think from the testimony that I've heard

18 there's like -- like every state there's little

19 changes to statutes all over -- that are similar

20 in nature, but they aren't exactly the same, but

21 -- so it's my understanding that the stand your

22 ground law allows an eggshell shooter to walk away

23 from a shooting because their psychological

24 perception of the world and individuals for the

25 shooting, whatever it was, regardless of what
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2 society believes to be a reasonable threat.

3 Is that correct?

4 MR. DAVID LABAHN: Yes. Especially if

5 you are describing that eggshell, and because it's

6 a subjective standard there still is a reasonable

7 -- does that person reasonably believe that an

8 eggshell person who believes that they're under

9 imminent danger has the right to use deadly force.

10 MS. ELIZABETH BURKE: And can I just --

11 can I expand --

12 COMMISSIONER KLADNEY: Yes, in a second.

13 Let me just ask -- add one more question there.

14 And then a police officer who is not

15 elected by the people makes a decision as to

16 whether an arrest takes place or not?

17 MR. DAVID LABAHN: Yes. Again,

18 specifically in the Florida statute, which hasn't

19 been addressed here, but it's extraordinary. The

20 Florida statute flat out says that -- and it gets

21 it backwards. It says that -- let me find the

22 exact language.

23 "As using this subsection -- and it's

24 776.032 No.1. "As used in this subsection, the

25 term criminal prosecution includes arresting,
70

2 detaining, custody, and charging or prosecuting

3 the defendant."

4 And then in Number 2 it comes forward

5 referencing Number 1. It says, "A law enforcement

6 agency may use standard procedures for

7 investigating the use of force as described in

8 subsection 1, but the agency may not arrest the

9 person for using force unless it determines that

10 there is probable cause that the force that was

11 used was unlawful."

12 And then 3, which was talked about,

13 there's attorney fees and court costs and

14 everything else if that arresting -- if that

15 agency makes a mistake.

16 This turns the law enforcement agency,

17 and as you said, the officer, yes, it makes that

18 patrol officer almost judge/jury and it's not

19 their job. They ought to be investigating the

20 shooting, not getting to the point of a probable

21 cause determination, especially right after the

22 shooting itself.

23 And that's why you have situations like

24 was seen on TV with George Zimmerman, they -- they

25 had initially taken him into custody, and then
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2 they took his cuffs off and had him walk home --

3 or let him go home.

4 It puts the agency in a very strange

5 position. And they really ought not to be making

6 that decision, especially at the time of the

7 shooting. It ought to be properly investigated

8 and then submitted. That's the way the process

9 should go and it really should never be the patrol

10 officers trying to make some sort of decision at

11 the scene. "Do we arrest him, not arrest him, do

12 we have probable cause, or not have probable

13 cause?"

14 COMMISSIONER CASTRO: Miss Burke, you

15 had something that you wanted to add?

16 MS. ELIZABETH BURKE: Yes, I did just

17 want to draw attention to the fact that 776.012 is

18 the reasonable expectation that you -- you know,

19 you believe that your life is in danger.

20 But, 776.013, which is a presumption of

21 fear in the home goes even -- even went a step

22 further under Florida's stand your ground law, in

23 that if you are in your home and you shoot and

24 kill someone you're presumed to have a fear. So

25 you don't actually have to be afraid at all.
72

2 There is a legal presumption created which then

3 the state would have to overcome.

4 So that just takes things a step

5 farther. And certainly much farther than any

6 common law definition of self-defense.

7 COMMISSIONER CASTRO: Commissioner

8 Kladney, are you done?

9 COMMISSIONER KLADNEY: I am,

10 Mr. Chairman.

11 COMMISSIONER CASTRO: Okay. Now it's

12 your turn Commissioner Kirsanow.

13 COMMISSIONER KIRSANOW: Thanks,

14 Mr. Chair. I would also like to thank all of the

15 panelists this has been very informative.

16 I'm willing to be persuaded that stand

17 your ground is a bad idea. And I've got a great

18 deal of interest in and respect for Mr. LaBahn's

19 perspective for example. Although, those of us

20 who are in the first lines of defense for our

21 families and neighborhoods like mine I'm not quite

22 yet persuaded that standing alone, stand your

23 ground is a bad idea. But that's not the --

24 that's not the commissions charge, it's whether

25 stand your ground results in discriminatory
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3

2 treatment of those involved in the confrontation

3 or of an equal protection violation.

4 So I've got a couple of questions for

5 Mr. Shapiro. First, Mr. Shapiro, are you aware of

6 any evidence that any quote - unquote "stand your

7 ground legislation" that's been enacted has been

8 done so with any discriminatory intent?

9 MR. ILYA SHAPIRO: I'm not.

10 COMMISSIONER KIRSANOW: Are you aware of

11 any stand your ground legislation that is not

12 (inaudible) neutral?

13 MR. ILYA SHAPIRO: I am not.

14 COMMISSIONER KIRSANOW: And Mr. Lott you

15 talked about coefficients with respect to -- I

16 can't recall whose data it was. I think it was

17 Mr. Roman.

18 Do you know whether or not the Tampa Bay

19 Tribune data or any other data show whether or not

20 or were just aggregated by, for example, the

21 effective concealed carry laws, use of drugs by

22 the attacker, whether the attacker had a weapon or

23 the type of weapon that he had or any other things

24 that may have had a bearing on a one-to-one

25 correlation in black to white statistics in this
74

2 issue?

3 MR. JOHN LOTT: Well, the Tampa Bay

4 Tribune data had very detailed data on whether a

5 weapon was present, what type of weapons were

6 present, who initiated the attack, what types of

7 data was available, whether you had witnesses,

8 forensic information that was there, what property

9 it occurred on, when it occurred, what time it

10 occurred. It has very detailed information on

11 those things.

12 You know, with regard to the Roman

13 stuff, I'll just mention the coefficients. I

14 reproduced his table -- in fact, I just have a

15 screen shot in my report, so if you want to look

16 at it you can see it in my report.

17 COMMISSIONER KIRSANOW: Thank you.

18 COMMISSIONER CASTRO: Any other

19 commissioner -- Commissioner Timmons-Goodson, go

20 ahead.

21 COMMISSIONER TIMMONS-GOODSON: Thank you

22 very much, Mr. Chair.

23 As I sat here it occurred to me, I was

24 wondering if any of our witnesses would care to

25 offer any thoughts on how they see implicit bias
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2 as it relates to these stand your ground laws.

3 MR. DAVID LABAHN: I'll -- I'll go first

4 on that. That's why I'm most troubled by the

5 subjective standard is the implicit bias is going

6 to play into that -- I'm going to say every time.

7 It is -- what that person is perceiving, and

8 let's go with the Jordan case, because that's the

9 verdict that came back, and ultimately even with

10 stand your ground, after a second trial, the jury

11 came back and said, "No, we don't think that it

12 was imminent or reasonable." But it was -- the

13 conversation -- it was a white older male shooter

14 and young black victim. And the fact that there

15 were 4 in the minivan when they were playing the

16 music. The -- the -- the shooter was in there

17 first. The van comes in, they're playing loud

18 music. He calls it rap music, thug music, I think

19 there's different things that this panel has said.

20 And he asked the person to please turn the music

21 down. And they initially did. And then they

22 turned the music back up. And that's when now

23 things started to escalate. Again he asked them

24 to turn the music back down. This time they did

25 not. He started yelling at him. And Jordan
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2 Davis, the ultimate decedent got out of the van

3 and basically -- and did cuss at him or used some

4 sort of words toward him. And at that point Dunn

5 opened fire killing Jordan and also opened fire

6 into the van.

7 I submit to you that I have no idea

8 about Dunn and his background. But whether it's

9 implicit or explicit, but we'll go with the

10 implicit bias -- you have an age difference, you

11 have a different taste in music, and you

12 absolutely have a different amount of respect

13 towards the individuals. No respect to an older

14 individual and also the willingness to use

15 particular language and get closer in an

16 individuals face.

17 I bring that up because I do a

18 tremendous amount of basketball coaching and a lot

19 of young people don't have the same sort of space

20 that -- I'm an older white guy, I like my space a

21 little bit. And so a lot of my players will get

22 very much into my face. They're not getting into

23 my face in any sort of an aggressive manner, it's

24 just they feel more comfortable getting up closer.

25 That's your implicit versus explicit.
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2 But for someone who's not comfortable with that,

3 and that different sort of cultural feeling they

4 can feel that that's an aggressive movement toward

5 them. And because here we're talking about the

6 use of deadly force that likely can take

7 somebody's life.

8 So the more different the individuals

9 are the more likely that this provision will come

10 into place. And that's why when you look at the

11 shootings that have got a lot of attention there

12 has been both a racial and an age difference.

13 COMMISSIONER TIMMONS-GOODSON: Thank

14 you.

15 Mr. Lott.

16 MR. JOHN LOTT: Yeah, with regard to the

17 implicitness or explicitness you can look at the

18 data rather than an anecdotal story. And because

19 the Tribune data has the age, has the many other

20 differences there with regard to the individuals.

21 All the differences that were just raised are in

22 -- essentially in the Tribune data set.

23 So you can control for those to see

24 whether they make a difference. And in fact, even

25 after you control for those things you find no
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2 statistically significant difference in terms of

3 the way -- the sentence depends upon either the

4 race of the victims or the race of the person who

5 fired the gun.

6 COMMISSIONER TIMMONS-GOODSON: Are you

7 saying that you can control for implicit bias --

8 MR. JOHN LOTT: Well, it should be -- if

9 there's implicit bias it should be observed in the

10 final outcomes, right? It should be observed in

11 terms of whether or not somebody's less likely to

12 end up with punishment than another person. If

13 he's saying that there's implicit bias because an

14 older white male is going to be given deference in

15 this case, then it should affect the probability

16 that that older white male's going to end up

17 facing a penalty or not.

18 COMMISSIONER TIMMONS-GOODSON:

19 Mr. LaBahn it looked like you wanted to say

20 something.

21 MR. DAVID LABAHN: Yes, if -- if I may.

22 I was not suggesting that older white males are in

23 any way always going to be bias towards young

24 black males. Instead what was going on in my mind

25 and I think we heard this statistic was 34 percent
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2 of the cases where the age difference, when the

3 individual was older and you had the racial

4 difference, that 34 percent of those cases in fact

5 were deemed to be justified. That's where I

6 suggest is -- the implicit bias comes in when you

7 move it from being an objective standard, would a

8 reasonable person in the same or similar

9 circumstances have acted in that way. To the

10 subjective standard is, what did that individual

11 believe. That -- once you've got a subjective

12 standard now the implicit biases weigh in on that

13 decision to take another life.

14 MR. JOHN LOTT: The reason --

15 MS. ELIZABETH BURKE: Could I --

16 MR. JOHN LOTT: -- the reason why you

17 don't take a statistic just like that by itself is

18 there's so many other things that differ across

19 these cases. Whether it's somebody's armed, who

20 initiated it, other aspects, you know, whether

21 it's black-on-white or white-on-black. Those are

22 the reasons why you use the whole data set to try

23 to control for those other factors.

24 And I'm saying, when you control for

25 them the data set's publically available or you can
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2 run your own regressions on it.

3 When you use all of the data that's

4 available on the Tampa Bay Tribune data set there

5 you don't find any statistically significant

6 difference in the outcome. You may think by just

7 looking at one average there, you can infer

8 something there, but you're leaving out a huge

9 number of other factors that the Tampa Bay data

10 set records.

11 COMMISSIONER CASTRO: Commissioner Yaki,

12 and then Commissioner Heriot.

13 COMMISSIONER YAKI: I'll let

14 Commissioner Heriot go first.

15 COMMISSIONER CASTRO: Okay.

16 Commissioner Heriot, go ahead.

17 COMMISSIONER HERIOT: Oh, okay. I'm not

18 sure where all of this subjective versus objective

19 stuff is coming from in the statute. I'm looking

20 at the Florida statute here and it says, "A person

21 is justified in using or threatening to use force,

22 except deadly force against another -- let me get

23 to the point -- "to the extent the person

24 reasonably believes that such conduct is necessary

25 to defend himself or herself."
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2 Where's the part about subjective? Can

3 you direct me to that?

4 MR. DAVID LABAHN: Sure. It is -- it is

5 -- that is a subjective standard, that it's the --

6 COMMISSIONER HERIOT: Reasonableness is

7 a subjective standard?

8 MR. DAVID LABAHN: It's a --

9 COMMISSIONER CASTRO: Let's not talk

10 over one another, please, everybody. Let the

11 witness speak.

12 MR. DAVID LABAHN: And -- that's what

13 the courts have inferred. This is -- that the

14 person reasonably believes --

15 COMMISSIONER HERIOT: That's nonsense.

16 MR. DAVID LABAHN: -- that is a

17 subjective standard not an objective standard.

18 The Beard Case was talked about earlier --

19 COMMISSIONER HERIOT: In what universe

20 is that -- that a subjective standard? I mean,

21 that's nutty, it's got to be reasonable. How do

22 you determine reasonableness -- it's always with

23 reference to what a reasonable person would do.

24 MR. DAVID LABAHN: No, no, no, it's not

25 a reasonable person standard. It is a person's --
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2 COMMISSIONER HERIOT: I beg to differ --

3 MR. DAVID LABAHN: -- there is -- very

4 significant difference between a person who

5 reasonably believes and a reasonable person

6 believes. And the statute is what the person

7 believes, not what a reasonable person is. I will

8 quote you the language out of Beard so you can see

9 the difference. The Beard --

10 COMMISSIONER HERIOT: I'm a torts

11 professor. You know, this is what I do for a

12 living, is I talk about what's the reasonable

13 person standard. You know, you're talking to the

14 wrong person. And if you think this is going to

15 be a question of --

16 COMMISSIONER CASTRO: -- could you just

17 let him respond.

18 COMMISSIONER HERIOT: Clearly not.

19 UNKNOWN PHONE SPEAKER: Let him answer

20 the question.

21 COMMISSIONER CASTRO: Mr. LaBahn, go

22 ahead.

23 MR. DAVID LABAHN: I -- I -- I don't

24 know if I can come back, because when it is a

25 reasonable person standard it says reasonable
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2 person. It doesn't say person who reasonably

3 believes. It's been very clear. There hasn't

4 been any question. You can look at the

5 Zimmerman --

6 COMMISSIONER HERIOT: There is now.

7 MR. DAVID LABAHN: -- yeah, you can look

8 at the Zimmerman case, this was intended to be and

9 is, a subjective standard not an objective

10 standard. If it was an objective standard you

11 would not have the prosecutors -- have so much

12 difficulty with it. And if this panel comes back

13 and says "objective standard is preferred," that

14 would be a great assist.

15 COMMISSIONER CASTRO: Commissioner Yaki

16 and then Commissioner Narasaki.

17 COMMISSIONER YAKI: Yeah, I'm a little

18 troubled by -- I was even troubled by Mr. Roman's

19 criticism of the Tampa Bay -- and by the way, it's

20 the Tampa Bay Times not the Tribune, I think that

21 they would be upset that their -- that they were

22 part of a different news organization.

23 The data that they have is actually data

24 that I find very useful because it goes into a lot

25 of subsets and hard data, charging sheets,
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2 et cetera that I think are not necessarily those

3 that are reported as part of the normal databases

4 that are collected by the federal government.

5 In fact it's one where I believe that we

6 have the ability to go even further and use that

7 kind of model for research in terms of other

8 jurisdictions as well.

9 I think it's important to put that in

10 there because one of my issues with regard to

11 trying to take the notion of implicit bias and

12 simply apply it at one part of the stage, is that

13 when you look at how the stand your ground statute

14 is formulated implicit bias can be there at any

15 particular stage. It can be at the moment that a

16 person decides that someone is a threat to them.

17 It can be there the moment when the investigating

18 officer upon hearing the persons assertion of

19 stand your ground, makes a decision right then and

20 there, "Well, it was a -- it was a -- "This person

21 talking to me is white, the person attacking was

22 black," not that he's a racist, but there could be

23 right then and there a decision, "Okay, I'm going

24 to let this person go and worry -- and then decide

25 later on whether or not there's probable cause."
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2 And going to the point where the judge makes a

3 decision at an immunity hearing. It can be at any

4 different locale, and I think that's why we need

5 to look at the data in all sorts of areas to

6 determine whether or not there is that kind of

7 thing there. But that's just a statement about

8 that.

9 My question was actually for -- for

10 Ms. Burke. And it goes to -- could -- should we

11 -- would we even be talking about the impact of

12 stand your ground if it were not for the

13 correlation between stand your ground laws and the

14 status of gun laws in the states in which it

15 exists?

16 MS. ELIZABETH BURKE: Right -- I mean,

17 stand your ground -- stand your ground clearly has

18 grown up around a time when the gun laws are

19 becoming more lax. Guns are becoming more

20 available. There's no longer -- for a person to

21 carry a concealed weapon. There's no longer a

22 necessity to show that you have fear. That you

23 need that be armed on a public street.

24 It used to be if you needed a concealed

25 weapon that you could apply for a permit. That
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2 you would go to your sheriff, your police officer,

3 they would know you from the community, and they

4 would make a determination of high moral character

5 of a non-dangerous personality, and the fact that

6 you needed a gun, perhaps you were being stalked,

7 perhaps you worked in a very dangerous

8 neighborhood and moved cash at night. There was

9 all sorts of reasons that a reasonable society

10 would say "this person needs to be armed for their

11 self-defense." And that situation was working

12 very well.

13 But, at the behest of the gun lobby

14 those laws have been relaxed in a historic sweep

15 throughout our country. And at this point there

16 is really no telling how many people walk around

17 now with concealed weapons on them at all times.

18 And implicit bias then becomes a deadly

19 bias, I think, because suddenly a fear that maybe

20 would have made you uncomfortable and scared and

21 you'd get in your car and leave, now people are

22 holstered up and they feel the right to if anybody

23 disrespects them to, you know, shoot them.

24 And the issue of civil liability and the

25 fact that this law protects people from negligent
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2 shooting is another travesty because, you know, I

3 thought it was a very interesting discussion with

4 the prior panel about the 15 year old in the car

5 behind the thugs who was shot and killed and had

6 no recourse -- her family had no recourse to bring

7 a suit against anyone.

8 One of the panelist's said, "Well,

9 that's how it should be. You know, someone acting

10 in self-defense isn't going to have insurance for

11 that." But, in fact, we see concealed carry

12 insurance as a new product. You carry your gun

13 with you everywhere, so the websites say, you

14 know, you're more likely to be involved in an

15 incident and need legal representation. So for

16 $14 a month now you can have insurance against

17 just exactly that kind of shooting, right, of

18 spraying a crowd and then saying, "Gosh, I was

19 terrified."

20 So, in answer to your question, I think

21 you'd have to see them arm in arm.

22 COMMISSIONER CASTRO: Mr. Lott and then

23 Commissioner Narasaki.

24 MR. JOHN LOTT: Yeah, thanks. Just as a

25 response to Miss Burke. We have data
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2 cross-states. We have data in terms of the

3 different rules, the types of rules that she's

4 looking at. Let’s them look to see what revocation

5 rates differ. And in fact there's no

6 statistically significant difference in terms of

7 revocation rates for the states that have the

8 types of rules that she's having or the states

9 that are more liberal.

10 MS. ELIZABETH BURKE: Mr. Lott -- I

11 mean, Mr. Zimmerman's gun has not been revoked.

12 His license has not been revoked so I would

13 question the viability and the inappropriateness

14 of the revocation laws.

15 COMMISSIONER CASTRO: And I've got to

16 believe that the revocation procedures, processes

17 and resources vary state by state, so they may not

18 even have folks who are regularly investigating in

19 some of these states as revocations. So I don't

20 know how that can be a distinction point, but --

21 Commissioner Narasaki.

22 COMMISSIONER NARASAKI: Yes, thank you.

23 I actually find it that it doesn't necessarily

24 prove that the system is working if there aren't

25 any revocations. I actually believe that proves
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2 that perhaps it's not working. It's like when my

3 90 year old grandmother in California got her

4 drivers license renewed without an exam. That

5 did not make me feel any better about the driver's

6 in California and getting on the road.

7 So I have a question about -- well,

8 first, on the issue of reasonable amount versus

9 reasonable belief. You know, Professor Cynthia

10 Lee's written a book about the extent to which a

11 reasonable man-standard still has some

12 subjectivity, right? Depending on what group is

13 deciding what a reasonable man would do. But, it

14 has more objectivity than saying, "Well, putting

15 myself in the position of someone who's an older

16 white man, not used to being around minorities,

17 feeling threatened and disrespected, I might say,

18 you know, I wouldn't feel threatened, but I could

19 see that that guy might reasonably feel

20 threatened. That to me is a very different

21 standard, and in fact rewards people for being

22 biased, and I'm concerned about that. I don't

23 think that's something that should be rewarded.

24 What I am interested in understanding is

25 that, in the issue of implicit bias, it's not just
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2 how the justice system treats you, but it's also

3 the question of when are you going to get shot.

4 Right? And that's the irrevocable fact that in a

5 split second your bias allows you to shoot someone

6 and then the legal system either treats that --

7 treats everybody fairly or not fairly after what

8 happened. So I think that's maybe where we're

9 sort of parting ways, Mr. Lott.

10 I do want to know though, do you believe

11 that there's implicit bias? Do you believe that

12 there's bias in the system that would cause you

13 any kind of concern, if in fact implicit bias

14 exists? Or is it just that you're trying to argue

15 that the data doesn't prove that in fact it's

16 resulted in any inequity?

17 MR. JOHN LOTT: I'm happy to accept that

18 there's surely biases that people have in many

19 different ways. I'm just saying in this

20 particular case we have a very useful data set

21 that we can go and look at to see whether it

22 effects the final outcome.

23 I want to talk for a minute in terms of

24 your example with your grandmother getting the

25 driver's license. What we would do then is we
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2 would look to see what happens to accidents, we

3 could look at accident rates for people who are 75

4 to 80. Okay? We can do the exact same thing --

5 COMMISSIONER NARASAKI: Her 85 year old

6 sister ran into a police and she did not get her

7 license revoked either.

8 MR. JOHN LOTT: No -- but, even if you

9 don't look at revocations, you can look at things

10 like murders. You can look at accidents. You can

11 look at what happens in murder rates or accidents

12 in other states based upon the types of rules.

13 And in fact what you find is that the

14 states that have easier rules for getting permits

15 actually have bigger drops in murder rates because

16 you have more people being issued permits.

17 And so it's the exact opposite -- if you

18 -- the ultimate thing that you care about then

19 when you were talking about what happens with

20 stand your ground laws somebody gets shot -- well,

21 let's look to see what happens to all murders.

22 When you look at that and you control for the gun

23 control laws that Miss Burke says needs to be

24 accounted for there -- you see drops there in

25 murder rates -- you have fewer lives lost. And I
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2 agree that's a very important bottom line.

3 So it's not just looking at revocations,

4 I agree revocations are just one possible way of

5 looking at it, but you need to look at other

6 factors and I look at all of those different

7 things.

8 COMMISSIONER NARASAKI: Can I just ask

9 you for a clarification on that because we have

10 thousands of pages that the great commission staff

11 have pulled together for us to prepare for this

12 hearing, and I really want to thank the staff for

13 the incredible job that they've done so far, but

14 in my reading I recall repeatedly seeing that in

15 fact in stand your ground places murder went up,

16 am I wrong? Am I confused?

17 COMMISSIONER CASTRO: No, you're right.

18 COMMISSIONER NARASAKI: So I'm confused

19 by what you're arguing.

20 COMMISSIONER CASTRO: I'm sorry,

21 Miss Burke did you want to respond?

22 MS. ELIZABETH BURKE: -- 8 percent --

23 MR. JOHN LOTT: Well, can't I just

24 respond --

25 MS. ELIZABETH BURKE: -- I think it was
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2 the --

3 MR. JOHN LOTT: The Texas A & M study.

4 And what I tried to do -- oops, there it is. What

5 I tried to do was just go through and tried to

6 explain to you kind of what happened with the

7 Texas A & M study -- there's also a Georgia study,

8 but both of them are very similar.

9 Texas A & M really looked at only laws

10 between 2005 and 2010, no explanation for why they

11 didn't look at other periods. A very narrow

12 window in terms of crimes -- rates that they

13 looked at. They didn't control for any other

14 types of laws that Mrs. Burke -- Miss Burke was

15 just making argument needed to be accounted for

16 because it would affect the rate and the possible

17 problems that would occur. There's -- it's really

18 amazing cherry picking that goes on --

19 COMMISSIONER NARASAKI: But -- but,

20 homicides either went up or down.

21 MR. JOHN LOTT: No, but -- the point is

22 -- let me give you an example. They not only look

23 at stand your ground laws, it's been a misnomer

24 they also look -- have in there Castle Doctrine

25 states. So someplace like Illinois for example,
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2 which clearly has a Castle Doctrine type state

3 rules. But, Chicago, during that period of time

4 that they were looking it was basically impossible

5 for people to get handguns, you know, except if

6 you were a very wealthy individual. So what

7 impact -- what's the point of testing whether or

8 not the Castle Doctrine had an impact there. Or

9 in Boston, Massachusetts where even former police

10 officers can't even get a permit to own a handgun

11 --

12 MS. BURKE: I think it's disingenuous.

13 COMMISSIONER CASTRO: Okay. Mr. Lott,

14 let Miss Burke speak and then Commissioner Yaki is

15 going to have the last question.

16 MS. ELIZABETH BURKE: I think it's

17 disingenuous to ask this commission to believe

18 that in Chicago there were only wealthy people

19 having handguns even though there was a ban on

20 handguns in the state. So, you know, the murder

21 rate -- many studies have shown that the murder

22 rate goes up as all these laws become more lax.

23 COMMISSIONER CASTRO: Commissioner Yaki,

24 you have the last question.

25 COMMISSIONER YAKI: I was just going to
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2 say that, let's get away from Mr. Roman's data and

3 let's go back to Mr. Krouse from the Congressional

4 Research Service and his slides which showed that

5 -- that overall there's been an uptick in the

6 homicide rates starting around 2005. And then --

7 and that certainly beginning in 2005 there's a

8 very big uptick in terms of justifiable homicides.

9 And now -- I just want to say this one thing which

10 is, what Mr. Lott said actually kind of goes to

11 the point that I was trying to make with

12 Miss Burke which is, you can -- you can -- and,

13 you know, people say -- I noticed that Mr. Shapiro

14 liked it -- liked to say that, "Then Senator

15 Barack Obama voted to expand the Castle Doctrine

16 in Illinois." But then again Illinois has very

17 tough gun laws. But we're talking about, when we

18 look at some of the states where you have not so

19 tough gun laws, where you have the Florida models

20 stand your ground law, and you have the data --

21 the data that Mr. Roman and others have, and the

22 Tampa Bay Times have, that's where we have --

23 that's where we see the disparity. That's sort of

24 the -- that's sort of the cocktail that I'm

25 concerned about. That is -- that is, quite
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2 frankly, the basis of this hearing is that when

3 you have those elements present adding -- and then

4 you add to that bias, implicit bias, explicit bias

5 you start to see this -- this problem, this tend,

6 and that's what this hearing and this data is all

7 about. And that's all that I wanted to say.

8 COMMISSIONER CASTRO: Thank you. We

9 have now reached the appointed time to conclude

10 this brief -- did you want to say something very

11 quickly?

12 MR. DAVID LABAHN: May I just --

13 COMMISSIONER CASTRO: Yeah, go ahead,

14 you'll have the last word then I'll close.

15 MR. DAVID LABAHN: Well, thank you,

16 Mr. Chair.

17 COMMISSIONER CASTRO: Sure.

18 MR. DAVID LABAHN: I wanted to address

19 the implicit bias question because it's too bad

20 that Mr. Sullivan was unable to attend.

21 He is Special Counsel to the Brooklyn

22 District Attorney. One of the things that he is

23 doing with the Brooklyn D.A.'s Office is training

24 all of the prosecutors on implicit bias.

25 We have done that. On behalf of APA, at
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2 one of our national conferences we've trained on

3 that. On behalf of APA we've been involved in two

4 now, racial justice summits of -- especially

5 within our role of prosecutors within the system,

6 how can we make sure that we're doing no harm.

7 So I wanted to directly address and say,

8 that on behalf of prosecutors we recognize

9 implicit bias exists, it's how can we counteract

10 it, and make sure that certain other things are

11 fair. So thank you, sir.

12 COMMISSIONER CASTRO: Thank you. And

13 thanks to each of you and to all of the panelists

14 today. This information is going to be very

15 helpful to us as we prepare our report.

16 I also want to acknowledge and ask all

17 of our staff that are here and especially the

18 staff that have been involved in putting this

19 together over the last several months to please

20 stand and be acknowledged, we really appreciate

21 your work.

22 (Applause.)

23 COMMISSIONER CASTRO: This could not

24 have happened without all of you and we really do

25 appreciate that.
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2 Lastly, the record for this briefing is

3 going to remain open for the next 30 days. If

4 panalists or members of the public would like to

5 submit materials they can mail them to the: U.S.

6 Commission on Civil Rights, Office of Federal

7 Civil Rights Evaluation, 1331 Pennsylvania Avenue

8 Northwest, Suite 1150, Washington, D.C., 20425 or

9 via e-mail to publiccomments@usccr.gov.

10 The exact time is now 3:35 p.m. and this

11 meeting of the U.S. Civil Rights Commission is now

12 adjourned.

13 Thank you.

14 (Hearing was adjourned at 3:35 p.m.)

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17 (Meeting was concluded. This is the end of volume III)

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2 CERTIFICATE OF REPORTER

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5 STATE OF FLORIDA

6 COUNTY OF POLK

7

8 I, Kathy Wescott, Certified Shorthand

9 Reporter, do hereby certify that I was authorized to

10 and did report in Stenotypy and electronically the

11 foregoing proceedings and evidence in the captioned

12 case and that the foregoing pages constitute a true and

13 correct transcription of my recordings thereof.

14 IN WITNESS WHEREOF, I have hereunto affixed

15 my hand this 28th day of October, 2014, at Lakeland,

16 Polk County, Florida.

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18

Kathy Wescott, CSR

19 Court Reporter

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