Ted Cruz, Louie Gohmert and Dr. John Lott set the record and the law straight
This morning Democratic Senator Dick Durbin of Illinois held a US Senate hearing nominally on the subject of Stand Your Ground laws.
Here I’ll just share an overview of the testimony, along with my own general observations. (More detailed posts will likely follow.)
My first general observation is that the anti-SYG folks were, as experience would suggest, big on emotion and small on actual facts, law, or data.
One of the anti-SYG witnesses, Professor Sullivan from Harvard Law School, did raise some actual data–but when these were utterly destroyed by the later testimony of Dr. John Lott and Elliot Shapiro of CATA, Professor Sullivan was swift to discount the use of data (which he himself had introduced into the testimony) and instead focus on the “real people” behind the data. In sharp contrast, the testimony of the pro-SYG speakers was focused and direct.
Second, the anti-SYG folks persistently conflated the legal concept of Stand Your Ground with utterly discrete legal concepts, such as presumptions of reasonableness and civil/criminal immunity.
When this is done by people without legal training or experience, such as Sabrina Fulton, one can of course accept it as an unknowing error. When it is persistently done by a Harvard Law Professor and a head of an (allegedly) leading association of State Prosecutors, one can only wonder at either their actual intent or their underlying intelligence.
Indeed, their misstatements of the law were so egregious that at one point Dr. Lott was obliged to read aloud from the actual Florida statute they had badly mischaracterized, to which they naturally had no substantive response. In that case they were claiming that even criminal aggressors could claim Stand Your Ground privilege under Florida law, a claim that the plain language of the statute read by Dr. Lott clearly destroys.
In any case, it is clear that their effort is intended to be a broad attack on all three fronts — likely with immunity being the true target, as it represents the largest pot of gold for their supporters — rather than any focused concern on Stand Your Ground, per se.
Finally, the bottom line is I expect this hearing, and any similar subsequent efforts, to be little more than political theater, with no substantive changes resulting to the law of self-defense.
Sen. Dick Durbin (D-Illinois)
Senator Durbin opened the hearing with a generalized attack on Stand Your Ground. In particular, he noted that the number of justifiable homicides had gone up following the passage of Stand Your Ground in several states, and that the organization ALEC that formulated the most widely adopted Stand Your Ground language seemed to no longer support SYG itself.
On the former issue, one wonders what the problem is with “justifiable homicides.” If they were justified, it simply means that we ended up with a dead rapist instead of a rape victim. One would like to think we could all agree that such justifiable homicides are an improvement over the alternative.
On the latter issue, Durbin draws his conclusion of ALEC’s seemingly wavering report based on a wave of intimidating letters he sent out to financial supporters of ALEC following the hysteria over the Trayvon Martin shooting. A reasonable interpretation of Durbin’s letter, reading between the lines, was that he was demanding they announce whether they still supported SYG, and therefore were racists just like George Zimmerman, or would now denounce SYG, and therefore were in Durbin’s favor. It is not hard to understand why the groups so confronted may have chosen to not reply.
Sen. Ted Cruz (R-Texas)
Cruz opened up by noting that if the Federal government was really concerned about violent crime they certainly had a strange way of showing it. Of the many thousands of attempts to illegally purchase firearms and the many thousands of gun crimes that fall under the purview of Federal criminal law, the Department of Justice prosecuted virtually none of them.
Cruz also noted that self-defense is a bedrock of American liberty and jurisprudence, and has been since our founding. He cited back the US Supreme Court case of US v. Beard, which cited the right of one who is attacked to stand their ground and meet force with force — a case dating back to 1895, and noted that the concept that if you are attacked by a violent attacker you are obliged to turn and run rather than defend yourself is contrary to hundreds of years of law.
He also noted that contrary to those arguing that SYG has a disproportionally negative impact on African Americans, in fact 54% of African Americans who claim SYG are successful, compared to only 53% of Anglos who do so.
Cruz wrapped up his opening comments by making explicit the fact that SYG only ever applies if an innocent person is subject to a violent attack, contrary to those who attempt to characterize SYG as allowing someone to “shoot first, ask questions later”.
The hearing was then opened up to three members of the House of Representatives, Rep. Marcia L. Fudge (D) of 11th District of Ohio (Cleveland), Rep. Luis V. Gutierrez (D) of 4th District of Illinois (Chicago), and Rep. Louie Gohmert (R) of the 1st District of Texas.
Rep. Marcia L. Fudge (D-Ohio)
Rep. Fudge began her remarks by commenting that George Zimmerman had somehow managed to “escape the clutch of justice.” She noted another case where SYG was used as a defense in a case where an aggressor shot a teenager for playing music too loud (in fact, that prosecution is still ongoing — the dead teenager’s mother would later appear as a witness in this hearing).
She also claimed that Stand Your Ground “eliminated all responsibility to retreat and peacefully end an incident,” and that it “permitted and encouraged the use of deadly force even in situations where lesser or no physical force would be appropriate.” Neither, of course, are truthful statements.
She then touched on what appears to be the real target of the anti-SYG crowd, noting that SYG “lowers personal liability and social responsibility for those who carry firearms.”
She, like Durbin, noted that states with SYG have a higher rate of homicide, although she deceptively declined to note that those additional homicides were justifiable (legitimate self-defense) and the result of innocent people defending themselves against death or grave bodily harm.
She closed by noting that she objected to the many states that have eligibility requirements for concealed carry that are more lax than those of Ohio, suggesting that a uniform Federal standard should be applied.
Rep. Luis V. Gutierrez (D-Illinois)
Rep. Guitierrez expressed shock that an unarmed teenager could be pursued by an armed man and killed, and no one be arrested. He was dismayed that Americans were so afraid of other Americans that they felt it necessary to arm themselves. He lamented that last year 8 million concealed carry permits were issued, and that Illinois has now become the 50th state to allow for concealed carry.
He said it was time to stand against “shoot first” laws like Stand Your Ground. He excoriated the NRA and other members of the “gun lobby” for advocating for “shoot first” laws. He then conflated SYG with legal presumptions of reasonableness, mistakenly believing that the former provides for the latter. This is not the case as a matter of law.
He closed by rather bizarrely arguing that turning the police into immigration agents was bad policy.
Rep. Louie Gohmert (R-Texas)
Representative Gohmert noted that he had a long history as a criminal law attorney before being elected to Congress, including cases in which he obtained acquittals for African American defendants in murder cases and obtained reversals of capital murder convictions of African Americans.
He reiterated Sen. Cruz’ point that SYG has been an element of American jurisdprudence at least since US. v. Beard, the 1895 US Supreme Court decision.
He also noted that it seemed curious that it was largely the states that lacked SYG that most struggled with runaway murder rates, such as Illinois.
He closed by noting that only a Federal government that spends 150% more each year than it brings in would have the audacity to attempt to instruct states with balanced budgets how they should manage their affairs.
At that point the Congressmen departed, and additional witnesses were brought in to testify. They were collectively sworn under the pains and penalties of perjury.
Sybrina Fulton, mother of Trayvon Martin
I won’t spend much time on her testimony here, as it was not surprisingly lacking in any real substance. She’s a grieving mother of a dead son, and testified accordingly.
It was remarkable, however, to hear her testify that Trayvon “was minding his own business, was not looking for any type of trouble, was not committing any crime, that’s important to remember.” I suppose it was some third party who witnesses observed astride Zimmerman and beating him relentlessly “MMA” style. Naturally, she wants SYG changed (whatever “SYG” might mean to her).
Prof. Ronald Sullivan, Harvard Law School
Professor Sullivan began his remarks by noting the sanctity of human life in our social and legal constructs, and stating that those who would extinguish life bear a heavy burden (of justifying that act, presumably).
Disappointingly, considering his position as a professor at the esteemed Harvard Law School, Prof. Sullivan also was unable to stop himself from conflating the legal issues of SYG with presumptions of reasonableness and civil/criminal immunity.
He stated explicitly that SYG shifts the legal presumption to one of reasonableness for the person claiming self-defense under Florida law (it does no such thing), and that it provides immunity from criminal arrest and civil liability (again, no). In fact, SYG, presumptions of reasonableness, and civil and criminal immunity are all distinct Florida statutes, and independent public policies.
Most damning, however, was Professor Sullivan’s claim that the George Zimmerman acquittal was possible because SYG and Florida law “conspired to create a situation where Zimmerman could disregard the clear directive of a 911 dispatcher.” That anyone could claim to be sufficiently knowledgeable about the Zimmerman trial to speak of it before Congress and yet not know this statement to be an outright lie is inexcusable. If in need of refreshing your recollection, see:
Professor Sullivan then simply “jumped the shark” by arguing that Florida’s SYG law “tells Floridians that they can incorrectly profile young black children and kill them.” He closed by suggesting that the law be changed to “permit the police to do the policing and the citizens to go about the business of building a community.”
David LaBahn, CEO/Pres., Assoc. of Prosecuting Attorneys
Next up was Mr. LaBahn, the President of the Association of Prosecuting Attorneys (an organization with which I was previously unfamiliar). He argued that prosecutors are overwhelmingly opposed to SYG, although he provided little hard evidence of this.
Even if true, this is naturally to be expected, as SYG strips prosecutors of a potent weapon with which to attack the legal defense of self-defense. SYG was not passed, after all, to benefit prosecutors, but to benefit law-abiding citizens who are compelled to defend themselves against lethal attack.
Like the disappointing Professor Sullivan, Mr. LaBahn also insisted on conflating SYG with presumptions of reasonableness and civil/criminal immunity. This hardly matters, actually, because he quite explicitly wants to strip the law of all three elements. No more SYG, no more presumptions of reasonableness, no more civil/criminal immunity.
Mr. LaBahn also claimed that aggressors can shield themselves using SYG, which is a patent falsehood, as SYG is not available to aggressors (as pointed illustrated later in the hearing when Dr. Lott read aloud the relevant Florida statute).
In addition, he claimed that SYG endangered LEO officers acting within the scope of their duties, another falsehood (one is not permitted to use ANY force against an LEO known to be acting within the scope of their duties, so SYG has no relevance in that context).
Ilya Shapiro, CATO Institute
Mr. Shapiro began his comments by correctly noting that SYG is tremendously misunderstood (and after hearing the prior “expert” testimony one can hardly wonder why). He noted that SYG is the majority position in the large majority of states, whether by statute or case law (he cites 31 such states, my own count is 33, but a couple of those are admittedly ambiguous in some contexts). In fact, the Florida SYG law is not substantively different than the SYG law in any of these other states.
He also noted that of the states that had recently adopted a statutory SYG law, the majority had Democratic governors at the time who signed them into law. Conversely, a number of so-called red states, he noted, still clung to a generalized duty-to-retreat. He also noted its deep roots in American jurisprudence, again citing the Supreme Court case of US v. Beard (1895).
In no case, he noted, does any SYG law mean that a person can simply “shoot first and ask questions later.” He pointed out that in states lacking SYG a person who defended herself (and he used the feminine pronoun, repeatedly) not only had the trauma of the vicious attack she fought against, but now also faces the threat of long imprisonment and civil suit (with this last point admittedly conflating SYG with immunity).
He noted that in the Zimmerman case, had Zimmerman been believed to be the aggressor, he would not have had no SYG claim, he would have had no self-defense claim generally.
Mr. Shapiro then pointed out the elephant in the room, noting that while anti-gun lobbyists have used Sandy Hook and the Martin shooting as moral affronts, what they are really targeting is the fundamental right to armed self-defense.
Finally, he requested, and was granted, permission to place in the official record copies of the letters of intimidation sent by Senator Durbin (who, you will recall, was overseeing this hearing) to the financial supporters of ALEC.
Dr. John Lott, Crime Prevention Research Center
Dr. Lott was, of course, marvelous. He noted that SYG laws simply help people to be able to defend themselves from vicious attack — an attack that a reasonable person would believe threatened them with death or grave bodily harm. He also noted that the large majority of people who are victims of such attacks are poor blacks.
Indeed, he noted, the very reason that so many states have adopted SYG laws is because requiring innocent people to retreat was making it more difficult for them to defend themselves and their families.
He noted that in Florida blacks make up 16% of the population, but constitute fully 30% of those invoking SYG as justification for their use of force. Further, in SYG cases blacks are acquitted 8% more than are whites presenting the same defense.
Citing data from the Tampa Bay Tribune, he also noted that in 90% of cases where a black person was killed by someone claiming SYG, the person claiming SYG was also black.
He also noted that the statistics that seemingly condemn SYG for disparate racial impact (such as those presented by the Urban Institute) or crime (Texas A&M University) were inherently flawed. For example, the Texas A&M study didn’t account for any other gun control laws that would determine the impact of SYG laws. In fact, many other facts are involved in such an analysis, including the ease with which a concealed carry permit can be obtained in a given jurisdiction, or whether a state has “safe storage” laws that impede the ability of a defender to access a gun in self-defense. When these other factors are taken into consideration, the impact on crime of SYG laws disappear.
Lucia McBath, mother of teenage homicide victim
Next up was a rather strange witness, in terms of her standing to speak on the issue. She described how her son had been killed simply for playing music too loud (like Trayvon Martin was killed for simply wearing a hoodie?), and how her son’s killer hid behind SYG.
In fact, it appears that this prosecution is still underway, so it is not possible to know whether the shooter in this case will successfully defend his actions using SYG.
Regardless, I am personally unfamiliar with the facts of the case, and we are again dealing with an understandably grieving mother presented by the anti-self-defense crowd, so I won’t deal with Ms. McBath further here.
Follow-Up Questions by Senators
Following the testimony of these witnesses, the Senators on the panel had the opportunity to ask some questions of the witnesses directly. Not much of substance was said in any of this, and in the interests of getting this posted sometime today I’ll simply touch upon the high points.
Senator Cruz noted, as we have here innumerable times, that the Zimmerman case was not a SYG case at all. He would be contested on this point by Professor Sullivan of Harvard Law School, who claimed that it was a SYG case because the Judge read the jury the SYG instruction. Sad, really.
Senator Cruz also noted that the intimidatory letters sent by Senator Durbin (who was sitting beside him) to the financial supporters of ALEC amounted to an effort to chill free speech and political advocacy. In response, Durbin somewhat bizarrely told Cruz to take it up with the NAACP.
Senator Blumenthal of Connecticut, who got elected despite infamously lying about having served in combat, next lamented that SYG was such a difficult legal concept to communicate to jurors. I don’t even know what to say about this, given that he was previously the Attorney General of Connecticut.
Senator Graham then made some rather meandering comments about the rights of a defendant to raise any reasonable legal defense, including SYG, and noting that surely the Democratic legislators and governors who passed SYG didn’t do so for racial purposes.
Soon thereafter, Durbin wrapped things up.
Time permitting, I will do a more detailed review of the comments of Senator Cruz, Elliot Shapiro, and John Lott, as they are well worth diving into.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere. In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country, with upcoming seminars scheduled Atlanta GA (11/16), and Epping NH (11/24, at the SigSauer Academy, where Andrew is a Guest Instructor). Click here for reviews of recently completed seminars in Ohio, Virginia, Florida, South Carolina, and elsewhere. You can follow Andrew on Twitter at @LawSelfDefense, on Facebook, and at his blog, The Law of Self Defense.
[NOTE: This post was edited on 10/31/13 to clarify Dr. Lott’s testimony regarding the research of the Urban Institute and Texas A&M.]DONATE
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