The trial of Michael Dunn has worked the anti-gun crowd into a predictable tizzy over Florida???s stand your ground law. Briefly the facts of that case are that Dunn pulled into a gas station convenience store in Jacksonville, Florida. His fiancée went into the store.
Dunn then had a confrontation with one or more individuals in the car parked next to him. Dunn was apparently irritated because they were playing load music and asked that they turn it down. They did for a moment, but then turned it back up.
Dunn complained again. He claimed one of the individuals, Jordan Davis, pointed a shotgun at him. Dunn shot Jordon, who later died. The car began to drive off. Dunn then fired several more rounds at the fleeing vehicle. Dunn and his fiancée left the premises without reporting the incident. Dunn was arrested the next day. Jordon and the other individuals in the car were black. Dunn is white.
Angela Corey, the district attorney with questionable ethics whose office prosecuted George Zimmerman, sought a murder one conviction against Dunn. Her prosecutors went so far as to tell the jury that the state didn???t want anything less than a Murder One conviction, not murder two or a manslaughter conviction.
A jury found Dunn guilty of several counts of attempted murder and one of shooting into an occupied vehicle. On the murder one count, the jury hung.
The liberal media and blogosphere then went ballistic claiming that the jury somehow managed not to convict based on Florida???s ???stand your ground??? law.
Some ???journalists??? have gone even further, suggesting that stand your ground laws amount to an open season on black kids by whites armed with concealed carry permits whenever they ???subjectively??? fear they are in danger. This is nonsense.
Florida???s stand your ground law essentially says that if attacked in a place in which you have a right to be, you have no duty to retreat and can use reasonable force to defend yourself. Reasonable force includes deadly force if you are an innocent person and you reasonably believe you are in imminent danger of death or grievous bodily harm. This stand your ground law had little to do with the facts in Dunn???s case.
First of all, the duty to retreat from a lethal confrontation when safely possible has never been a majority rule in the United States. Rather it was a decided minority rule. Generally, stand your ground laws don’t materially change the substantive law of the states that adopt them. That is true with Florida???s law as well. The most notable aspect of the Florida statute is its opportunity for a pre-trial determination of self-defense to avoid the immense expense and anguish of subjecting someone to a criminal trial who has used force in self-defense. Stand your ground does not change the common law requirement for when deadly force may be used in self-defense.
Second, the “reasonable” standard is the benchmark in every state for the use of force. It is both a subjective and objective standard. Subjective from the standpoint of the person acting in a belief that self-defense is necessary, but objective in that the conduct is looked at from the standpoint of whether a reasonable person in the same circumstances would have acted similarly.
The reasonable standard is not new to the law. It is applied throughout the law of negligence, for example. In a self-defense situation, one can only use that much force as is reasonable under the circumstances.
One can use deadly force when one reasonably believes it is necessary to prevent imminent death or serious bodily harm to an innocent person (that innocent person can be the person acting in self-defense or a third person). One can be reasonably mistaken. For example, situations where cops have mistakenly shot kids playing with toy guns in circumstances where the cop reasonably thought he was in jeopardy but actually was not.
Third, even if there had been a duty to retreat under Florida law, Dunn would not have been required to retreat if in fact Davis pointed a shotgun at him. In retreat jurisdictions one is required to retreat if it can be done safely without jeopardy. One cannot easily and safely retreat from a firearm, though self-defense experts stress movement toward cover as a tactic to minimize the risk of getting shot. Dunn could not have run faster than 1100 feet per second (approximate muzzle velocity of 12 guage. Buckshot. 12 ga. slugs can have an even greater muzzle velocity in excess of 1600 ft./sec.).
And Dunn could not just have ducked behind his car door. Contrary to TV and movies, bullets go through car doors, buckshot and shotgun slugs included. Dunn certainly could have and should have avoided the situation altogether by moving his car to avoid the loud music if it bothered him. Most self-defense trainers would advise doing just that, i.e., to avoid a confrontation that might escalate into a fight. But that would have been prior to the escalation of the confrontation into a deadly force situation. The minority duty to retreat doctrine applies only after the initial confrontation occurs not before. There is no duty to retreat from loud music in any state.
Fourth, even had retreat been required and possible, it was not reasonable under the circumstances because Dunn had a protectee (his fiancée) on scene. You are not required to retreat when that leaves a loved one on scene and in jeopardy. That would not have been reasonable.
Fifth, the system worked in this case. Dunn was convicted on four felonies. Yes, the jury hung on murder one. The simple fact is that this case should not have been a murder one case at all. There appears scant evidence of premeditation, which is a necessary element of murder one.
The jury could have convicted on murder two, but as discussed above the prosecution pushed murder one and told the jury they did not want anything less than a murder two conviction. On retry of the case, assuming it is retried, the prosecution will not likely make that mistake again.
Reports indicate some jurors may have believed Dunn’s self-defense claim. In Florida, as in almost every jurisdiction, the prosecution must disprove self-defense beyond a reasonable doubt. In at least one state, Ohio, a self-defense claim must be proved by the defendant by a majority (called a preponderance) of the evidence.
Personally, I doubt Dunn???s self-defense claim because his actions post shooting do not comport with innocence. For example, his failure to call the police and report the incident hardly helps his self-defense claim. Had he done so and had there in fact been a gun in Davis???s car, it would have supported his claim of self-defense. However, the jury saw Dunn testify and heard the evidence, so he may have been able to convince one or more of the jurors that there was a reasonable doubt in his favor. The anti-self-defense blogosphere can speculate that stand your ground had something to do with that conclusion, but it is just speculation born of a fundamental misunderstanding of stand your ground laws.
Finally, it might help to discuss the degrees of homicide that the jury might have considered. If you have no fear of imminent death or serious bodily harm and planned to kill the victim, this is murder one. If you have no fear of imminent death or serious bodily harm but in the spur of the moment shoot someone who angers you this is murder two. If you have a sincere belief that you or an innocent person are in imminent jeopardy of death or serious bodily harm, but that belief is not reasonable — possibly the situation with the popcorn shooting incident recently reported in Florida — this is voluntary manslaughter. If you think your gun is unloaded and jokingly point it at someone and press the trigger — all of which violate three different rules of gun safety — and kill someone, this is involuntary manslaughter. If you as an innocent person are placed by someone in reasonable apprehension of death or serious bodily harm and kill them, this is justifiable homicide which is not a crime
In Dunn???s case, murder two should have been the most serious charge because as I understand the facts, there was not sufficient evidence of pre-meditation. The prosecution thus overreached in charging murder one. Under the circumstances the jury verdict seems reasonable and just. On retrial, if one occurs, perhaps Dunn will be convicted of murder two, or manslaughter. That would also be a reasonable and just verdict based on the facts as I understand it.