Ted Simons: George Zimmerman is in the news again. He was arraigned today on charges of domestic violence. Zimmerman’s killing of teenager Trayvon Martin this summer in Florida brought national attention to Stand Your Ground laws, which shift the burden of justification for use of deadly force to the state. Florida's Stand Your Ground law was not specifically used in Zimmerman's defense but the issue continues to divide those with differing views on the legal duty to evade or retreat from confrontation. A forum on Arizona’s Stand Your Ground law will be held this Saturday at ASU’s Sandra day O'Connor College of Law. State Representative John Kavanagh will be participating in the event as will State Representative Martin Quezada. Good to have you both here on Arizona Horizon.
John Kavanagh: Always a pleasure.
Ted Simons: Let’s set some parameters. What does Arizona's Stand Your Ground law do?
John Kavanagh: Arizona's Stand Your Ground law is a model for brevity in legislation. It's one paragraph and I'll read it. “A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act.” That's it in a nutshell.
Ted Simons: That's how you see it as well?
Martin Quezada: Well, it certainly is a brief statute, but it's more than that. In a nutshell this is encouraging people to engage in violent activity, encouraging people to engage in vigilantism. Especially in situations where there's no need to promote further violence. That's one of the big problems with that law.
Ted Simons: This has been described as shoot-first legislation.
John Kavanagh: You can't understand Stand Your Ground without understanding the basic law of self-defense. In Arizona and just about the entire country because it's all pretty much the same, Stand Your Ground does not relieve a citizen of the necessity of complying with the basic law of self-defense. If they violate the basic law of self-defense, then Stand Your Ground means nothing and they will be convicted of murder or manslaughter. Let's look at the actual law. When can a person use deadly force to defend themselves? The law is very simple. You have to have a reasonable belief that it is immediately necessary to use deadly force to defend yourself against somebody using unlawful deadly force against you. If you don't have the reasonable belief you can't prove it was immediately necessary to defend yourself, then you're finished. You're guilty of a crime. If you killed a person it's murder or manslaughter. If you injure them it's aggravated assault. Stand Your Ground has no effect. But if you are in fact justified in using the deadly force, then with Stand Your Ground, it says you don't have to run away before using force because without Stand Your Ground, you could be second guessed later by prosecutors who said “We think you could have run away and therefore, you're guilty of murder.”
Ted Simons: Should someone who is facing this kind of confrontation have a duty to evade or, in the representative's words, run away?
Martin Quezada: Well, the question arises, what is the need for Stand Your Ground if the self-defense laws are already in place? The self-defense laws give a person the ability to defend themselves. What this Stand Your Ground law does is it encourages that violence to occur. It ensures that violence is going to occur in situations where violence could be voided. That's the situation. If violence can be avoided why not avoid it?
John Kavanagh: The operational word is could. You don't know. Justice Oliver Wendell Holmes summed up in a phrase why we need Stand Your Ground. In a case called Brown versus U.S. where the Supreme Court upheld the no duty to retreat principle, he said, I quote, “Detached reflection cannot be demanded in the presence of an uplifted knife.” In other words, when you're in that tense situation you're not in a position to reflect on what you're doing. I would add that today it's not the uplifted knife that you may be facing, you may be facing a Glock 9-millimeter with 15 rounds. It's too dangerous to pause to think should I run away?
Ted Simons: On the other side the lowering of the threshold of using lethal force means you'll see more lethal force in situations that otherwise would not have presented themselves.
John Kavanagh: You're not lowering the threshold. You still have to meet those basic principles that I said, the reasonable belief, the immediate necessity. All it says is that you don't have to run away and the reason for that is if you had that requirement and the person thinks that they can't run away safely and they use deadly force they could be second guessed by a jury or a prosecutor. They could wind up spending tens of thousands of dollars defending themselves in court.
Ted Simons: The threat of the burden of proof on the person defending themselves seems to be a major aspect here. How do you see that?
Martin Quezada: Well, those protections are already in place with self-defense laws as they are in statute now. Again, what this comes down to is there are going to be situations where a person has a choice. They could stand and fight and incur violence or they could retreat. This is going to give them the motivation to engage in that violent behavior. What happens, what that brings, is the possibility for more victims rather than less. When a person decides to not engage in violent activity and retreat, seek shelter, find a safe place, the chances of serious injuries and death are decreased by that action.
Ted Simons: The argument that this makes for a more dangerous community, the argument that this makes for a less – I’ll start with you. The argument that this helps secure communities. You buying that?
Martin Quezada: No. In fact we have no research that shows these Stand Your Ground laws are effective at all. That's why I think these laws need to be reviewed. We need to take a look at them, see if these are promoting violence, if they are promoting safety in our communities or if they are not having that effect at all. If they are not having that effect, are they having the opposite effect of promoting violence?
John Kavanagh: It's impossible to do. I have looked at the studies. Some studies say Stand Your Ground laws are good, some say they are bad. All the studies are fatally flawed because the data that records the shootings doesn't specify if Stand Your Ground was an issue. The researchers have to look at overall homicide and assault rates in states that have it and don't have it and try to say, well, if there are more homicides in a Stand Your Ground state it encourages violence but they can't control for all the other factors that are involved, and they can't determine whether, if there are extra homicides, if they’re justified. Because if they are legally justified homicides, there's nothing wrong with them, that's people saving their own lives against a criminal attack.
Ted Simons: Back to the idea this encourages engaging in conflict as opposed to avoiding it, do you buy that?
John Kavanagh: No. I don't. Know why? The average person not only doesn't know the basic law of self-defense, they don't even know what Stand Your Ground means. When they are confronted with a life and death situation, they basically say what do I got to do to save myself? They are not thinking about a reasonable belief, immediate necessity. They’re not thinking about Stand Your Ground. They are thinking about saving their lives. So when you don’t have a Stand Your Ground law, you wind up subjecting people who wind up having done the right thing to prosecution, potentially bankrupting them because a prosecutor somewhere says I think they might have been able to run away.
Martin Quezada: Ted, that might have been true several years ago. Now because of the situations like the Trayvon Martin situation in Florida, Stand Your Ground has been in the news all over the country. People are aware of this law and the message this law is giving them is to fight, to engage in violent activity. That has to have an effect on our communities.
Ted Simons: Without this law, though, I'm seeing both sides here, trying to figure out where both sides are coming from. I'm trying to figure out how did we get by without Stand Your Ground laws all these years? The idea that self-defense laws were good enough. Were they not good enough?
John Kavanagh: First of all, if you go back historically, there was no requirement to retreat in many states. Stand Your Ground law -- the requirement to retreat outside of your home, that requirement was pretty much nonexistent until the 1960s when a research group called the American Law Institute promulgated what they called the model penal code to try to get consistency between states and they slipped that in, but it's never been popular principle that you have to retreat if safe to do so because people recognize like Justice Holmes did that “detached reflection cannot be demanded in the presence of an uplifted knife.” It's unreasonable to make people engage in that type of calculus in a split second. It could cost them their lives.
Ted Simons: The chaos of the moment, is it wise to have to have someone have to think about these issues as opposed to defending themselves?
Martin Quezada: No. We're not asking people to think in life and death situations. If it is a true life and death situation self-defense laws provide people with the opportunity to defend themselves. Stand Your Ground laws, all they do is promote a message to our community that violent behavior is the answer, is the preferred method of reacting with a life or death situation.
John Kavanagh: Stand Your Ground laws subject citizens to almost a type of double jeopardy. Even after they prove they met the requirements for self-defense they can still be convicted if a prosecutor says, “I think you could have run away in that situation.” Today people are facing Glocks, 9-millimeter Glocks with 15 rounds. It's rare you can safely run away.
Ted Simons: With that in mind how many instances are out there in which Stand Your Ground changed the nature of a case?
John Kavanagh: Probably very little in terms of the encounter. But it does stop people from being bankrupted by overzealous prosecutors who decide that maybe because the political pressure like in the Zimmerman case, that they are going to prosecute this person claiming they could have run away.
Ted Simons: This sounds like politics as opposed to on the ground activity.
John Kavanagh: This is a protection from politics. When you have a Stand Your Ground law you don't have to worry about a prosecutor succumbing to the mob screaming for blood because they claim that they didn't like the shooting.
Ted Simons: Sounds like we're moving into the realm of what the prosecutor's office can and should do in these situations as opposed to what the person should do in these situations.
Martin Quezada: Well, again, to assume that all prosecutors are acting in this unfavorable fashion I think is a little far-fetched.
John Kavanagh: I didn't assume that.
Martin Quezada: Prosecutors are going to prosecute criminals. They are going to prosecute crimes brought before the state. What this does is -- you hit the nail on the head. It's a political message. A political message to individuals that guns are the answer, violence is the answer, and shooting your way out of a situation is the preferred method.
Ted Simons: Do you want to see Arizona's Stand Your Ground law removed completely or can it be modified? Can the duties of the individual be changed in some respects?
Martin Quezada: At the least our law needs to be revisited and studied and evaluated. There are methods we could do to make it better. And part of that review should be to look at other ways we can improve this law.
Ted Simons: Wise idea to revisit?
John Kavanagh: It's always good to review but we have been doing that since the Zimmerman case. Everything I have seen says it's a good law. I might add this all came from England. In England they don't need Stand Your Ground laws. In England that's part of the jury's overall deliberation in terms of whether this was reasonable or not. That's the way it is here. Even though we have Stand Your Ground laws, if a jury says we think that person could easily have run, they are going to say there was no immediate threat and they will convict the person.
Ted Simons: It has to get to the jury in the first place.
John Kavanagh: Right. I want to clarify -- I think only a few rogue prosecutors would succumb to the mob's request that the person should be prosecuted and subject somebody unnecessarily to unjust prosecution, but you need a law like this for those few instances to protect decent people who defended themselves against unlawful aggression.
Martin Quezada: Actually, those prosecutors that are acting outside of the norm, there's an appeals process in our judicial system to handle those situations. So again, Stand Your Ground laws not necessary.
Ted Simons: Gentlemen, good to have you both here. Thanks for joining us.
Martin Quezada: Thank you.