Tuesday, August 6, 2013

For Better or Worse, Stand Your Ground Is Here to Stay

Matthew T. Mangino
The Pennsylvania Law Weekly
August 6, 2013

Pennsylvania's expanded castle doctrine was enacted in 2011. Governor Tom Corbett signed the self-defense bill into law only months after his predecessor, former Governor Ed Rendell, vetoed the legislation.

Self-defense statutes like the castle doctrine and stand-your-ground laws gained notoriety this summer as George Zimmerman stood trial for the shooting death of Trayvon Martin. Interestingly, Zimmerman did not raise stand-your-ground as a defense during his Florida murder trial, although the judge included the phrase "stand your ground" in her instructions to the jury.

Zimmerman raised a traditional self-defense claim. He believed he was in danger of imminent death or serious bodily injury, had no opportunity to retreat and lethal force was needed to defend himself.
He had the chance to raise the issue of stand-your-ground but chose to forgo a pretrial hearing to raise the defense. Obviously, Zimmerman's attorneys made the correct tactical decision — he was acquitted on the charges of second-degree murder and manslaughter.

However, the Zimmerman case has reignited a debate surrounding the use of lethal force to defend oneself. There is a fundamental difference between Florida's stand-your-ground law and Pennsylvania's expanded castle doctrine legislation.

Pennsylvania's expanded castle doctrine gives individuals the right to use deadly force without retreating anywhere they are legally allowed to be, provided they reasonably believe they are facing death, serious injury, kidnapping or rape, per 18 Pa.C.S. Sec. 505. The key difference is, in Pennsylvania, the aggressor must be armed with a gun or other lethal weapon capable of inflicting death or serious bodily injury.

Florida's stand-your-ground law allows the use of deadly force if one deems it necessary to prevent imminent death or serious bodily injury to himself or herself or others, regardless of whether the aggressor has a weapon.

In December 2010, after Rendell vetoed the castle doctrine, he unequivocally explained his rationale.
"The bill as passed encourages the use of deadly force, even when safe retreat is available, and advances a 'shoot first, ask questions later' mentality," Rendell said in his veto statement. "I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves."

Rendell, a former prosecutor, fell in line with his former colleagues in the Pennsylvania District Attorneys Association, as well as the Pennsylvania State Police and a number of mayors and police chiefs, all of whom opposed the bill.

"Pennsylvania already has a strong castle doctrine," Dauphin County District Attorney Edward M. Marsico Jr., at the time president of the PDAA, told The Philadelphia Inquirer. "Citizens already possess the right to defend themselves in their homes."

Rendell said Marsico "told me that 'this bill is proposing a solution to a problem that doesn't exist' and that, if approved, it would create 'great opportunities for defense lawyers of violent criminals.' I agree."

The second time around, the PDAA actively participated in the process. The PDAA worked with legislators to ensure the legislation could not be used as a tool by criminals to circumvent the justice system. Prosecutors insisted that the duty to retreat outside of the home continues if:

• The shooter illegally possessed the firearm.
• The person against whom the deadly force is used is a law enforcement officer and the shooter knew or should have known that fact.
• The shooter is engaged in criminal activity "related to" the underlying confrontation.

Once those provisions were added to the legislation, the PDAA's official position on the expanded castle doctrine changed from opposed to neutral.

Recently, when U.S. Attorney General Eric Holder Jr. took a strong stance against stand-your-ground laws, he took the same position that Pennsylvania prosecutors took in 2010 and 2011: "These laws try to fix something that was never broken."

"There has always been a legal defense for using deadly force if — and the 'if' is important — no safe retreat is available," Holder said. "It's time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods."

In the wake of the Zimmerman verdict, thousands of people across the country have taken to the streets to protest, among other things, stand-your-ground and castle doctrine laws.
Since Florida enacted the first stand-your-ground law in 2005, at least 24 other states have enacted some variation of the expansive self-defense law. As America focuses on these laws, what is the likelihood they will be repealed?

In March, months before the Zimmerman trial, the New Hampshire Judiciary Committee voted 12-6 to recommend the full state House of Representatives pass a bill to repeal the state's stand-your-ground law enacted in 2011. The effort failed in the state senate, according to the Concord Monitor.

Last week, Arizona state Senator Steve Gallardo, flanked by legislative, city and community members during a news conference at the state capitol, said he agreed with U.S. Senator John McCain, R-Ariz., who recently called for a review of the state's stand-your-ground law.

In Alabama, state Senator Henry Sanders pledged to lead an effort to repeal the state's version of stand-your-ground in the next legislative session but acknowledged it could be a difficult fight. "We know it will not just be uphill, but up a mountain," Sanders told the Arizona Republic.

In Pennsylvania, the chances of repealing the expanded castle doctrine are next to none. In 2011, 45 out of 50 state senators voted in favor of the law. There is little stomach among Pennsylvania lawmakers for quarrelling with gun supporters.

The political climate is clear. Adam Winkler, a law professor at the University of California, Los Angeles, told the Christian Science Monitor, "For better or worse, stand-your-ground laws are here to stay."

Winkler emphasized, "Non-gun owners are questioning stand-your-ground laws ... but the gun lobby is too strong to allow such laws to be repealed."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney for Lawrence County and former member of the Pennsylvania Board of Probation and Parole. Reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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