Protests against the killing in Florida of 17-year-old Trayvon Martin continue in cities and on college campuses across the country. The case has focused attention on Florida’s “Stand Your Ground” law, which says a person may use deadly force in self-defense if under threat of harm, with no duty to retreat. Nearly half of states have some form of the law. Critics contend it’s dangerous and promotes “shoot-first-ask-questions-later” mentalities. Supporters argue that every citizen should have a legal right to defend himself, or herself, in life-threatening situations. Guest host Tom Gjelten of NPR and a panel of experts will discuss whether Stand Your Ground laws and permitting people to carry concealed weapons have made Americans safer.

Guests

  • John Donohue III economist, lawyer and professor at Stanford Law School.
  • Dan Gross president, Brady Campaign to Prevent Gun Violence.
  • Elizabeth Megale assistant professor of law, Barry University Law School.
  • John Velleco director of federal affairs at Gun Owners of America.

Transcript

  • 10:06:55

    MR. TOM GJELTENThanks for joining us. I'm Tom Gjelten of NPR sitting in for Diane Rehm. She's having a voice treatment. Former President Clinton is among many Americans calling for a review of Stand Your Ground laws such as the one in Florida at the center of the Trayvon Martin tragedy. The teen was shot and killed by a neighborhood watch volunteer who allegedly felt his life was in danger.

  • 10:07:19

    MR. TOM GJELTENJoining me in the studio to talk about these self-defense and concealed weapons laws: John Velleco of Gun Owners of America and Dan Gross of the Brady Campaign to Prevent Gun Violence, and, from a studio in Florida, Elizabeth Megale of Barry University Law School and, joining us by phone from California, John Donohue III of Stanford University Law School.

  • 10:07:43

    MR. TOM GJELTENI'm guessing a lot of you listening today have strong feelings one way or another on this issue. Please let us know. You can reach us on 1-800-433-8850 or by email, drshow@wamu.org, or Facebook or on Twitter. Good morning, Elizabeth in Florida, John Donohue in California and John Velleco and Dan Gross here in the studio. Nice to see you.

  • 10:08:10

    PROF. JOHN DONOHUE IIIGood morning.

  • 10:08:10

    MR. DAN GROSSGood morning.

  • 10:08:11

    GJELTENYeah.

  • 10:08:11

    PROF. ELIZABETH MEGALEGood morning.

  • 10:08:12

    GJELTENJohn, I'm going to start with you. I want to give you the first word here. Could you explain -- we already have the right to self-defense fairly well established across the country. Why were Stand Your Ground laws needed above and beyond the rights that are inherent in the self-defense doctrine?

  • 10:08:38

    MR. JOHN VELLECOWell, Stand Your Ground laws were needed because people were being prosecuted for defending themselves with a firearm because of the principal of the duty to retreat, and people have -- would have a duty to retreat in the face of attack and...

  • 10:08:57

    GJELTENIs that phrase duty to retreat actually written into law in many places?

  • 10:09:02

    VELLECOYes. That was written into several Supreme Court cases going back to the late 1800s. And it becomes a murky proposition when -- did a person retreat enough? And people were being prosecuted and bankrupt defending themselves. Even if they were not convicted, they would end up being bankrupt by overzealous prosecutions and finding themselves victimized really twice, once by the criminal, once by the criminal justice system.

  • 10:09:36

    GJELTENMm hmm. And so in -- and so Stand Your Ground, in a sense, was seen as a protection against those prosecutions that you're talking about.

  • 10:09:46

    VELLECOExactly. Stand Your Ground says that a person is not under a legal obligation to retreat in -- if he feels a reasonable threat, bodily harm or serious death or bodily injury, he can stand his ground and defend himself or herself. Now, the ironic thing in this case, in the Trayvon Martin case, which has the focus on the Stand Your Ground laws, we don't even know if the Stand Your Ground law applies because -- if the defenders of Trayvon Martin are correct -- George Zimmerman chased this young man down and shot him cold blood. Well, that is not a legitimate use of self-defense.

  • 10:10:27

    VELLECOIf, on the other hand, George Zimmerman's interpretation of the events is correct and he was essentially attacked by Trayvon Martin and had his back to the ground and was being beaten, then he would not have had any ability to retreat at all. So, again, the Stand Your Ground law would not have come into play.

  • 10:10:43

    GJELTENNow, there's one other factor here that's important to underscore, which is that, in addition to the right to self-defense, there is this notion of my home is my castle, which really says that, in your home, you not only have the right to use force to protect your own life but to protect, in a sense, your property. But the Stand Your Ground laws, unless I'm mistaken, take that concept and extend it into the public domain.

  • 10:11:09

    VELLECOExactly. The difference between the Castle Doctrine, which applies to your home, and the Stand Your Ground law is where the incident occurs. And the Stand Your Ground law says that you have this right that you don't have to have the requirement to retreat wherever you are lawfully present.

  • 10:11:28

    GJELTENNow, how do you feel, John, about the Trayvon Martin killing being seen as an illustration of the Stand Your Ground law in practice? Now, you just said you're not even sure if it applies. Nevertheless, it is out there right now as the most famous illustration of this law, rightly or wrongly.

  • 10:11:48

    VELLECORight. This case has been tried in the media. Frankly, there's a lot of misinformation. You turn on one network station and you get one set of facts, and if that set of facts were true, then this could be a murder. You turn the station, you get another interpretation. You get another set of facts. If that fact set is true, then this is -- this could very well be a justifiable self-defense case.

  • 10:12:13

    GJELTENElizabeth Megale in Florida, you've just heard John Velleco explain the origin and the justification for the Stand Your Ground laws. You have studied these laws not only in Florida where this infamous incident occurred but in other states as well, and there are now many states that have these laws. Are you comfortable with the way that John described the origin and the explanation for this legislation?

  • 10:12:37

    MEGALEWell, he's correct. That was the justification, the reasons promulgated before the State Legislatures in support of these laws. And when I first began studying these laws, I was coming out of a criminal defense practice. And, as a criminal defense attorney, I loved this law because it did make it easier to defend someone accused of murder or assault or battery. But as I began studying, particularly the wording in Florida, I realized that the statute was extremely broad.

  • 10:13:13

    MEGALEAnd I was concerned that something just like this might happen. And, in fact, I wrote an article predicting that this type of problem was likely to emerge based on how broadly the legislature had drafted the legislation.

  • 10:13:28

    GJELTENWell, you're making an important point here, which is that all Stand Your Ground laws are not alike, are not the same. What differentiated the Florida law? What motivated you to make that comment?

  • 10:13:39

    MEGALEWell, there were a couple of things that differentiated Florida's law. One of the first things was that Florida expanded the concept of the castle. So your castle is your home, but, in Florida, it also includes your car or your vehicle. So if you're in a vehicle, you have the same rights that you would have in your castle. They expanded the rights within your castle by creating a presumption of reasonable fear.

  • 10:14:07

    MEGALESo, even though you never had a duty to retreat in your home, if you were attacked in your home, you still had to establish, at least to some level, of a showing of evidence that you were in reasonable fear. And so with the new Castle Doctrine, you no longer have to establish reasonable fear. It is presumed in your home or in your car. And that's coupled with now this grant of immunity, which brings me to the third way that this law is too broad, and that is when you're entitled to immunity from prosecution.

  • 10:14:43

    MEGALEProsecution begins with detention in Florida. Most other states don't start prosecution with detention. But in the statute defining immunity from prosecution, we start the definition at detention, then custody, then arrest, which means someone cannot even be detained if there's any evidence that they acted in self-defense. In the castle, again, you have this presumption of reasonable fear.

  • 10:15:07

    MEGALEBut even outside the castle, if there's any evidence that shows that you had a reasonable fear, then you no longer have to establish that to a jury or even to a judge. The police are not entitled or allowed to arrest you until they can disprove this -- that you were not in reasonable fear or -- excuse me -- until they can prove you were not in reasonable fear.

  • 10:15:32

    MEGALESo that's the problem with this -- with the Trayvon Martin case, is that when the police arrived on scene, at least one version of the story is that Mr. Zimmerman had injuries consistent with his claims that he was acting in self-defense. And if that is the case and there was any evidence of that, the police are now in a position where they must disprove his claim of self-defense before they can even detain him.

  • 10:15:56

    GJELTENAnd, John Donohue, in Stanford, you're also a law professor like Elizabeth. Is it your sense that the reason that George Zimmerman was not arrested is precisely because the prosecuting authorities there felt that they did not have that right, that they were not allowed to arrest him as Elizabeth just suggested?

  • 10:16:20

    IIIWell, Elizabeth was very prescient in her writing over the period before this event occurred, so I would be very attentive to her thoughts on this matter. It's hard to know exactly all of the factors motivating the police and prosecutors in this case. Obviously, we do know that there was sort of a presumption at the scene that Zimmerman was the good guy and the victim was the bad guy because they tested the victim for, you know, drugs and alcohol. They did not test Zimmerman at the time of the event.

  • 10:16:57

    IIISo, clearly, there was a presumption on the part of the authorities that he was a law-abiding citizen and Martin was the victim of this episode. Now that more facts had come out, it's changed our understanding. And, clearly, you know, many of these considerations will come to bear on prosecutors as ultimate judgments get made about whether there is some basis for prosecution.

  • 10:17:28

    GJELTENOK. And, Dan Gross, finally, at the Brady Campaign, how do you see this case?

  • 10:17:35

    GROSSWell, as it relates to Stand Your Ground, or as we call it shoot first, ask questions later, it's most dangerous as just that, as a mentality. You started, Tom, by asking, why this law was needed. It was needed by the gun lobby to spread the mentality of fear and paranoia that they use to pass laws like this and pass laws like the concealed carry laws that put the gun in George Zimmerman's hand in the first place. We look at Stand Your Ground as a very important part of this conversation, and we have to recognize it as what it is, as that dangerous mentality.

  • 10:18:13

    GROSSThe American people need to decide whether we want that to be the mentality that governs our society. But we also need to look at why and how George Zimmerman came to be carrying a gun that night. George Zimmerman may be free because of the Stand Your Ground law. Trayvon Martin is dead because George Zimmerman had a gun. And together, that's a recipe for just this kind of tragedy.

  • 10:18:37

    GJELTENDan Gross is president of the Brady Campaign to Prevent Gun Violence. John Velleco is director of federal affairs for Gun Owners of America. And I'm sure, John, you're going to want to respond to what Dan just said, and we're going to give our listeners a chance to weigh in on this as well. We're talking about Stand Your Ground laws. Stay tuned. We'll be right back.

  • 10:20:04

    GJELTENWelcome back. I'm Tom Gjelten, sitting in today for Diane Rehm, and we're talking today about the Stand Your Ground law in Florida, what relation that may have had with the -- to the killing of Trayvon Martin there, but also similar laws throughout the country. Many states now have Stand Your Ground laws in addition to the concealed carry laws, which are also found in many states as well. John Velleco is here with us. He is the director of federal affairs for Gun Owners of America.

  • 10:20:33

    GJELTENWe just heard from Dan Gross who's president of the Brady Campaign to Prevent Gun Violence. Joining us from Orlando, Fla. is Elizabeth Megale. She is an assistant professor of law at Barry University Law School, and John Donohue III also joining us by phone. He's a lawyer and a professor at Stanford Law School. John Velleco, you just heard Dan Gross say that the gun lobby has been promoting a sort of a mentality of fear and paranoia, and it's that sentiment that has actually motivated legislators throughout the country to pass these laws.

  • 10:21:10

    GJELTENAnd the truth is, of course, these laws have been passed by very wide margins in states where they have been approved. What's your -- does -- do gun owners -- does the gun lobby -- is there such a thing as a gun lobby? Well, I think that's pretty obvious. There is such a thing as a gun lobby. Does it promote a fear mentality?

  • 10:21:27

    VELLECOWell, the "gun lobby" is made up of 80 to 100 million American gun owners who believe in the Second Amendment, who believe that they have a right to defend themselves against criminal attack. And I would wonder if Dan Gross would ever think that a person could use a firearm in self-defense concealed or in the home or outside of the home, in a vehicle.

  • 10:21:50

    VELLECOBut the fact is that if you take the lowest estimates of self-defense gun use and the 600,000 per year range to the highest estimates -- University of Florida criminologist Gary Kleck puts the number over 2 million, around 2.5 million times per year -- that guns in the law abiding citizens actually save far more lives than they are criminally misused.

  • 10:22:16

    GJELTENDan, he asked -- he's wondering what you think, so I'm going to give you a quick chance to respond to that. And then we're going to go to John and Elizabeth.

  • 10:22:22

    GROSSI do think that there are justifiable instances of self-defense. But I just, you know, I mean, we've talked about this show being about civil discourse, but I just have to say, when John quotes something like this Kleck study, I mean, its nonsense. That study is openly mocked in the public health community. That study...

  • 10:22:40

    GJELTENAnd this is the study that, according to John...

  • 10:22:42

    GROSSYeah, that cites these millions of instances of self-defense. That study -- let's talk about what study is based on. That study is based on 66 people who reported such gun use, self-reported such gun use. That was 1 percent of people surveyed, and then that was extrapolated to 200 million adults. Kleck himself admits that he made no effort to assess either the lawfulness or the morality or even the truth of the respondents' defensive actions.

  • 10:23:08

    GROSSI mean, we don't have to look further than George Zimmerman. What would George Zimmerman say if he were asked that question, that study? He would say he used his gun for self-defense. That's what we're talking about here. And what we do know is the thousands of instances where guns are with zero uncertainty used to kill people every year, and we have to stop letting the gun lobby, which John represents and is not -- he does not represent hundreds of millions of gun owners out there.

  • 10:23:36

    GROSSHe represents an industry and some political extremists that are using fear and paranoia to spread their agenda. And, you know, we just have to stop with this deception, and we have to call this issue out for what it is. There are things politicians can do to keep guns out of the hands of people like George Zimmerman. This man had an arrest record and a history of violence, yet he was allowed to carry a loaded, hidden gun in public. I ask John back, do you feel George Zimmerman should have been allowed to carry a loaded, hidden gun in public, in Florida with an arrest record and a violent past?

  • 10:24:11

    VELLECOI think any law-abiding citizen should have that right and protected by the Second Amendment...

  • 10:24:15

    GROSSWas he law-abiding?

  • 10:24:16

    VELLECO...to carry firearm for self-defense. And I -- instead of me judging...

  • 10:24:19

    GROSSDoes he fit your definition?

  • 10:24:20

    VELLECOI'm not on the jury in this case, but that information is going to come out. And we need to let the criminal justice system do its work in this case and not sit here in Washington and pass a judgment on the guilt or innocence of George Zimmerman.

  • 10:24:34

    GJELTENOK. We're not going to turn this into a debate. I want to like proceed in a kind of a logical way here, and there is an important issue that just got dropped here. And that is, what are the facts, what are the data as far as the impact of laws such as this? Do they or do they not protect people? John Donohue, you have written, and you have studied this issue.

  • 10:24:54

    GJELTENWhat do we know -- apart from this one study that is clearly in contention here, what do we know about the consequences of either concealed-carry weapons or Stand Your Ground laws as far as whether they make people safer, whether they prevent killing?

  • 10:25:11

    IIIYes. Dan did allude to the fact that the Kleck study is not regarded as factual. It really should not be part of the debate on this issue. Its results are totally unreliable. On the broader question, there has been a lot of work done on this. It is actually a tricky thing to get a precise estimate of the effect. But, again, I think Dan's general point is true that the NRA claims that there are benefits associated with these laws are based on studies that have now been found by academic experts at the National Academy of Sciences to not be reliable studies.

  • 10:26:00

    IIISo I think there's no reason to believe that the public at large is safer if these laws are passed. And there are some reasons to be concerned that, you know, more people will die. I do think Dan's general point is one that should be underscored, that one has to be very careful about creating a mentality that you really need a gun to protect yourself. You should be ready to use it at a moment's notice because a lot of people cause harm when that attitude gets prominent in their minds.

  • 10:26:41

    IIIAnd laws should be trying to dampen down some of those intense feelings. I know that's something that the NRA crowd doesn't want to hear, but I think the evidence backs ups that view.

  • 10:26:56

    GJELTENOK. And there is one group that we haven't talked about this morning or one institution, and that is law enforcement. John Velleco is making the point that people have the right to defend themselves. Where does law enforcement fit in to this? And, Elizabeth Megale, you have followed the evolution of these laws. What in general -- and I'm asking you to generalize here, I realize. What, in general, has been the position of law enforcement officers and agencies towards these laws?

  • 10:27:26

    MEGALEWell, in my experience, speaking with some detectives, homicide detectives and other law enforcement officers, primarily, as I was researching for my article, they don't like citizens taking matters into their own hands. Citizens aren't trained and equipped to make the snap decisions that are necessary to determine, you know, when to shoot and to shoot-to-kill somebody. We know from the 911 call, at least one version of it, that Mr. Zimmerman was told to stand down, was told not to chase after Trayvon Martin. And it creates danger when individuals try to take matters into their own hands.

  • 10:28:13

    MEGALEOne of the biggest problems, I think, with the Stand Your Ground law is that both people in a situation -- or ever how many there might be -- everyone would have the right to stand their ground. And so it could essentially become a shoot out, and whoever shoots first wins. That's not the kind of attitude we need to be promoting. And I would agree with John Donohue and Dan Gross that fostering an attitude of violence, and that we need to be able to shoot people, and that's the only way of defending ourselves is a very dangerous attitude for us to have as a society.

  • 10:28:49

    GJELTENWell, John, so you don't feel too isolated here, I'm going to read an email from Tom in Florida, who says, "I've lived in Florida for 30 years and have had a concealed-carry weapon. For most of that time, the police are after the fact. For the most the part, the responsibility for my safety is mine, and bad guys always have a weapon." So there are some listeners out there who agree with you, but I want to get to this point of law enforcement.

  • 10:29:13

    GJELTENNow, if a officer shoots somebody, as I understand it, in most cases, that officer is probably going to be temporarily, at least, suspended while an investigation is done. And that officer is going to have to justify his use of a weapon in killing someone. The burden is going to be on the officer. George Zimmerman was told by a 911 dispatcher not to pursue Trayvon Martin. Why -- how can you argue that he was more entitled to immunity, in a sense, in shooting him than a law enforcement officer would've been who has been trained to handle such situations?

  • 10:29:53

    VELLECOWell, number one, George Zimmerman was presumably out of place where he was lawfully allowed to be...

  • 10:29:58

    GJELTENOK.

  • 10:29:58

    VELLECO...in his community where he was recognized as a watch -- a neighborhood watch person. The suggestion from the dispatcher and, for the most part, 911 dispatchers are not -- they are civilians. They're not law enforcement officers. It was just that. It was a suggestion. He was not under any legal obligation to obey that. But further to the point is we don't know what happened during that time after George Zimmerman stopped pursuing Trayvon Martin.

  • 10:30:28

    VELLECOHe says that he stopped. He said he called the police, and I lost him. And he was walking back to his car, and he was attacked from behind by Trayvon Martin. So the question is, did one incident end and then another incident begin?

  • 10:30:40

    GJELTENMm hmm. Right. That's a legitimate question, Dan. I mean, hypothetically, if, in fact, George Zimmerman were pinned down and been beaten, would that be a different set of circumstances entirely from the one that we have read about?

  • 10:30:52

    GROSSIt would clearly be a different set of circumstances. But let's not deal with the hypotheticals here. You know, John is saying that we shouldn't try this case in the media. We shouldn't make conclusions about George Zimmerman before he gets a trial, which, hopefully, he will have under these circumstances. But here's what we do know: Trayvon Martin is dead. Trayvon Martin is dead because George Zimmerman had a gun. George Zimmerman had that gun despite having an arrest record and a criminal past and a history of violence.

  • 10:31:25

    GROSSAnd he was able to carry a loaded, hidden gun in public because of concealed carry laws that the gun lobby has passed. I asked John this question before. He asked me a question. I'm asking him this question now: Does he agree that George Zimmerman, a man with an arrest record and a history of domestic violence, a history of violence, should have been allowed to be carrying a loaded, hidden gun? Because -- and the reason it's an important question is because, right now, at this very moment, the Senate has introduced a bill that they innocently call the Right-to-Carry Reciprocity Act.

  • 10:32:02

    GROSSThat basically would force every state to honor every other state's concealed carry laws. So if your state has tougher laws than Florida which might prevent somebody like George Zimmerman from having a loaded, hidden handgun in public, tough luck. You now have to subscribe to Florida's gun laws. So, John, I ask you that question: Do you support the fact that George Zimmerman, a man with an arrest record and a history of violence, should have been able to be carrying a gun that night?

  • 10:32:29

    GJELTENAnd that question goes beyond the Stand Your Ground issue, does it? That goes...

  • 10:32:32

    GROSSRight. That's why -- yeah.

  • 10:32:33

    GJELTENOK. John.

  • 10:32:35

    VELLECOWell, I think if George Zimmerman were a prohibited person -- and, believe me, there's a long list of prohibiting factors to keep people from owning and possessing firearms.

  • 10:32:43

    GROSSNot answering.

  • 10:32:43

    VELLECOIf he were a prohibited person, that would have come out. So I think we have to presume for the moment that he was not a prohibited person, that he was lawfully carrying a firearm.

  • 10:32:52

    GROSSHe wasn't a prohibited person because of laws that Florida passed.

  • 10:32:55

    GJELTENYeah. OK. Hold on. Hold on. We're not going to turn this into a free-for-all. This is "The Diane Rehm Show."

  • 10:33:02

    GROSSI've been warned in the past.

  • 10:33:03

    GJELTENAnd I'm going to let John Donohue jump in here.

  • 10:33:07

    IIIYeah. I just wanted to respond to something that John was just saying. I think he's missing the point. The issue is not whether Florida allowed George Zimmerman to carry a gun. The issue is whether he should be allowed to carry a gun. And I think Dan made the right point that if the NRA-backed congressional bill is passed, Zimmerman could carry his gun in New York and Los Angeles states where he would never be allowed to carry a gun because they have more restrictive laws.

  • 10:33:34

    IIIAnd so I think that is really the central question. Should someone who violently attacked a police officer at one point and was prosecuted and convicted for a violent action of assault be allowed to carry a gun? Florida says yes to that question. Many other states say no. And the NRA tries to make guns available to as many people as possible, so they back the Florida resolution of that question.

  • 10:34:04

    IIIBut I think many listeners would say, well, if you have a criminal record of violence, especially attacking a police officer, should you be allowed to have a gun? And if the answer to that question is no, then you might wonder, well, should Florida be tightening up more to keep guns out of the hands of people like George Zimmerman?

  • 10:34:24

    GJELTENOK. You know what, folks? I'm going to drag you back, kicking and screaming, to this issue at hand here, which is the stand your ground and concealed carry. It's not gun ownership issues in general.

  • 10:34:35

    MEGALETom...

  • 10:34:35

    GJELTENAnd I have a question for you. Just a second, Elizabeth.

  • 10:34:37

    MEGALESure.

  • 10:34:37

    GJELTENI have a question for you, John. If stand -- not you, John, John Donohue in Stanford. If stand your ground and concealed carry weapons are dangerous, why don't we hear more about shootings every year? I mean, concealed carry weapons -- concealed carry laws have been around since 1980, and crime levels have actually dropped in that period of time.

  • 10:35:02

    IIIYes, you're right. There certainly has been a very beneficial movement in crime, starting in the '90s, and it happened in -- all across the country. So concealed weapons are not the -- you know, the concealed weapons laws are not the biggest factor influencing crime. There are other things that make crime move up and down. But the claims that are sometimes made that the concealed weapons laws have reduced crime are the ones that I would submit the evidence does not support.

  • 10:35:38

    GJELTENOK.

  • 10:35:39

    IIIYou know, crimes -- more dramatically, in the state of New York than anywhere else in the country, and New York has the toughest laws against crime. So just remember that there are many factors that seem to be...

  • 10:35:55

    GJELTENSure. OK.

  • 10:35:55

    III...operating on crime. And concealed carry is only one of those. But I do think the evidence of late is somewhat concerning because the number of "justifiable" homicides by citizens seems to be rising in states that passed these laws. And, you know, do we really want to see people like Martin killed when, if Zimmerman had not been under the view that this was a good time to pull out a gun...

  • 10:36:28

    GJELTENOK.

  • 10:36:28

    III...he would presumably be alive?

  • 10:36:31

    GJELTENA very quick comment from Elizabeth, and then we do want to get back to that issue of justifiable homicides. But very quickly, Elizabeth.

  • 10:36:38

    MEGALEI was just going to bring it back to a comment -- I think it was by John Velleco -- that the -- we need to just sit back and let the criminal justice system do its work. It's really hard in a system where you've got immunity that automatically attaches so early on because it basically stifles the criminal justice system. So all of the questions that we're talking about here and that have been bounced around in the media might not ever get answered because of this immunity.

  • 10:37:05

    MEGALEAnd prior to the enactment of Stand Your Ground in Florida, where an individual acting in self-defense was not entitled to immunity, that individual could still claim self-defense. It was a jury question. And a group of six members of the community would make the decision as to whether that action was justified or not. And that's what's been eliminated now.

  • 10:37:28

    GJELTENElizabeth Megale is an assistant professor of law at Barry University Law School. I've also been joined here by John Velleco from Gun Owners of America, Dan Gross from the Brady Campaign and, in California, John Donohue III. We're going to go next to phone calls. Stay tuned. We'll be right back.

  • 10:40:04

    GJELTENWelcome back. I'm Tom Gjelten sitting in today for Diane Rehm. And the subject today is the legislation Stand Your Ground laws and the concealed carry laws and what lessons can be drawn from the Trayvon Martin killing in Florida. We -- our phone lines are jammed right now. But if you do want to try to get through, call us at 1-800-433-8850. It might be easier just to send us an email, drshow@wamu.org. You can also send in your comments on Facebook or Twitter.

  • 10:40:37

    GJELTENI want to start here, first, with a couple of emails that we've gotten. The first is from Bob. He's actually from Sanford, Fla., which is where this incident took place. He says: "Many are trying to paint Stand Your Ground as some kind of racist law or shoot-first-ask-questions-later law. They're both wrong. This is a self-defense law for any skin color. Anyone painting it as biased against blacks are themselves racist, and no one mentions the fact that the presence of a firearm in the hands of a potential victim may send the attacker fleeing."

  • 10:41:12

    GJELTENOn the other hand, we have a -- another email from Jerry, who is a police officer in San Antonio. And he writes: "As a police officer, I'm always concerned when armed individuals involve themselves in community policing. My question: Why didn't Mr. Zimmerman call the police about a suspicious individual, stay in a hidden location and wait for the police to arrive? The issue is that an armed individual is more likely to initiate a confrontation than an unarmed individual."

  • 10:41:44

    GJELTENSo he's saying, in this case, apparently, that he would guess, as a police officer, that Mr. Zimmerman, as the armed individual, was more likely, in hindsight, to have initiated that confrontation than Trayvon Martin because Trayvon Martin was an unarmed individual. And I'm going to go now to the phones. We're going to go first to John, who is from Florida. John from Miami Beach, you're on the air. Welcome to "The Diane Rehm Show."

  • 10:42:11

    JOHNYes, hi. Thank you. I -- just to give you background, I have a carry to conceal license. I do not choose to own or carry a handgun, but I do believe in the right to defend one's self. And I think this is a tragedy for Trayvon Martin and his family. I also think it's a tragedy for those who might be -- who might lose the right to defend themselves because of what seems to be Mr. Zimmerman's desperate attempt to get away with murder and use this law as a way of doing so. And I think that that...

  • 10:42:45

    GJELTENYou say you believe in -- sorry, John. You say you believe in the right to defend one's self. Do you believe in the necessity and the need for Stand Your Ground laws?

  • 10:42:56

    JOHNI think Stand Your Ground -- we're talking about guns. I think Stand Your Ground is about using deadly force to defend oneself. It could be a knife. It could be a gun. It could be a flashlight. Had Zimmerman, basically -- it seems like he went after Trayvon. Had Trayvon standed (sic) his ground with a flashlight and killed Mr. Zimmerman, he would have been able to use Stand Your Ground, and I believe that.

  • 10:43:22

    GJELTENOK, John.

  • 10:43:23

    JOHNBut Zimmerman's claim does not support that.

  • 10:43:26

    GJELTENOK. I want to go now to another caller from Florida. This is Keith. And, Keith, you are -- am I correct, you are calling from Sanford?

  • 10:43:35

    KEITHYes, I am.

  • 10:43:36

    GJELTENWell, welcome to "The Diane Rehm Show."

  • 10:43:38

    KEITHYes, thank you for having me. Yes. What I have to add to this subject is the matter about self defense. And this Stand Your Ground law doesn't even apply in this situation because, as one of your guests pointed out, if Mr. Zimmerman had followed through and done what the 911 operator have suggested that he do, none of this would have taken place. Also, why is law enforcement and the law being so chummy with Mr. Zimmerman when he has a background of violence, even against a police officer?

  • 10:44:20

    KEITHAnd this nonsense about, you know, the self-defense thing, if he had just stood back and just observed the guy, he obviously wasn't doing anything illegal at the time. Looking suspicious don't mean that, you know, you're doing anything illegal. All he had to do was, if he looked suspicious, get 911 and call the police and just observe the guy. He didn't have to pursue this guy, which he did. I strongly know and feel that Zimmerman pursued Trayvon probably with his arm already -- with his gun already drawn. And...

  • 10:45:04

    GJELTENRight, Keith. And in fact, that's the point that Jerry, the police in San Antonio, made as well, that Mr. Zimmerman would have been better advised just to kind of stay there and not actually pursue him. I want to go now to Elizabeth in Florida, in -- at Orlando. Keith just made the point that the police in that incident were overly chummy with Mr. Zimmerman. Do you think, do you argue that, in fact, they were forced to be, in Keith words, chummy or, because of the Stand Your Ground law, that they really had no option to do what they could have done and did not do?

  • 10:45:48

    MEGALEI don't know if I have enough information to agree with the notion that they were chummy with him, but I would say that if, upon their arrival at the scene, they observed any signs consistent with Mr. Zimmerman's claim that he acted in self defense, then their hands were largely tied because of the Stand Your Ground law and only because immunity from prosecution is defined so broadly, meaning that they cannot even detain an individual until the evidence supporting self defense has been disproved.

  • 10:46:24

    MEGALENow, I will say this: Stand Your Ground does not have to be coupled with an immunity provision that is as broad as Florida's. So for -- even many of the states that already have a Stand Your Ground law, as opposed to a duty to retreat recognition of self defense, they don't all have immunity from prosecution where prosecution begins with detention.

  • 10:46:46

    MEGALESo in other words, in another state, even with Stand Your Ground, someone in Mr. Zimmerman's position could have been arrested and then later made a claim that he's entitled to immunity or that he had the right to stand his ground and a judge would listen to evidence. It would be an adversarial process where the state would present certain evidence, and the defendant would be entitled to present certain evidence. And then a legal decision would be made about whether that person had, in fact, stood his ground lawfully. The problem in Florida is immunity is so broad.

  • 10:47:19

    GJELTENRight. John, I want you to get -- to respond to this point that we've heard raised here a couple of times, which is that Mr. Zimmerman would have been smarter and wiser to just wait for the police to arrive, maybe hide, stay on the lookout but not pursue Trayvon Martin.

  • 10:47:37

    VELLECOWell, again, we don't know that -- we know that he pursued him, but we don't know what happened after that.

  • 10:47:42

    GJELTENWell, we do know that he pursued him.

  • 10:47:44

    VELLECOYeah, yeah. And he had a legal right to be where he was, and he was doing what he was responsible to do as part of the neighborhood watch program. But a point that Elizabeth has made four or five times is that there's a concern that the burden of proof to prove that the person acted in self defense is now on the government. Well, that's where it should be. The government needs to have probable cause before they arrest someone or before they bring someone to trial.

  • 10:48:17

    VELLECOIt's -- then the fact is George Zimmerman was taken away in handcuffs, and he was questioned for five hours. And so we don't know exactly what happened during that time, but, presumably, they did question him. And they did not find, at that time, probable cause. And they will continue to investigate this.

  • 10:48:32

    GJELTENWell, presumably, there was a burden of proof on George Zimmerman as well to be sure that Trayvon Martin was attacking him before he killed him.

  • 10:48:40

    VELLECOWell -- and that is his testimony, that Trayvon Martin came up from -- came up on him from behind and attacked him. And then at some point in the fight, George Zimmerman's gun was shown. And we don't even know that George Zimmerman pulled his gun. It might have been Trayvon Martin that pulled that gun.

  • 10:48:58

    GJELTENOK. Quick comment, Elizabeth?

  • 10:48:59

    MEGALEOh, can I -- yes. Before the change in Florida law, law -- self-defense was asserted as an affirmative defense, meaning the prosecution had probable cause when there is a dead body, and that's exactly what we have in this case. So there was probable cause in the sense of is there an evidence of a crime. Under the prior law, affirmative defenses are raised to a jury. And then the jury decides whether that affirmative defense is sufficient to overcome what the state has proven, that either a homicide occurred or an assault or a battery. Now, what has shifted, and it -- this is huge.

  • 10:49:41

    MEGALENo longer is an affirmative defense required to be asserted in front of a jury. There's nobody that is going to decide objectively, whether these actions were reasonable under the circumstances. And law enforcement can't just arrest him when they do have probable cause that there's a dead body, like we have in this case. Now, in addition to probable cause, they also have to disprove self-defense, which that has never been their burden before. And it's not the burden in duty to retreat states or even in states with Stand Your Ground where immunity is not defined so broadly.

  • 10:50:16

    GJELTENSo if the jury doesn't make that determination, who has the responsibility, the authority to make that determination?

  • 10:50:24

    MEGALEIn Florida?

  • 10:50:25

    GJELTENYes. Well, in -- yeah, in the hypothetic location you're discussing.

  • 10:50:30

    MEGALEIn Florida, basically, what happens now is that the law enforcement has to make a determination prior to even a detention as to whether -- if there's any evidence of self defense. Then it has to be disproven before they can even detain or take someone into custody. And it goes on down the chain to whether someone can be charged, brought to trial or ultimately convicted.

  • 10:50:53

    GJELTENQuick comment, Dan.

  • 10:50:54

    GROSSYeah, Tom, I just want to point out, you know, we're -- there are two important aspects to Stand Your Ground. One is whether George Zimmerman should be arrested and prosecuted. And we're spending a lot of time talking about that. The other is what we can learn from it, as the outline in the beginning of the show, to prevent more tragedies like Trayvon Martin's.

  • 10:51:12

    GROSSAnd, you know, and in that regard, Stand your Ground may have been a mentality that emboldened him to get out of the car and to follow and pursue Trayvon Martin. But -- and that's all -- that hopefully will eventually be tried. But the bottom line is Trayvon Martin is dead because of the other part of this show is about, which is the concealed carry laws in Florida, and the fact that this man with an arrest record and a history of violence had a loaded, hidden gun.

  • 10:51:39

    GROSSAnd I think it's important, as we're discussing Stand Your Ground, as it relates to what we can do to prevent tragedies like this from happening, that we have those conversations together. And we talk about the dangerous recipe that occurs in Florida in particular where a Stand Your Ground mentality is combined with people like George Zimmerman walking around with loaded, hidden guns because that part is not hypothetical. That part does not getting tried in the media.

  • 10:52:04

    GROSSThis guy was allowed to be carrying a loaded, hidden gun. And the fact that the gun lobby has now worked with our Congress to introduce legislation to the Senate that's already passed the House that would make the rest of our country force us to subscribe to Florida's concealed carry laws, this isn't about gun ownership. This is about the right to carry a loaded, hidden gun, subscribe to Florida's lax standards where you can get a permit to carry a gun online through the Department of Agriculture. It's an important part of the conversation.

  • 10:52:32

    GJELTENWell, I'm Tom Gjelten. And you're listening to "The Diane Rehm Show." That's an important issue. I also want to get back to the question that we raised earlier about justifiable the increase -- the big increase in allegedly justifiable homicides we've seen in the last seven years. But before we get to that discussion, I want to give Jim a chance to weigh in here. Jim is calling us from Kent, Ohio. Thanks for the call, Jim. Welcome to "The Diane Rehm Show."

  • 10:52:57

    JIMYes. I would like to put in my two cents for -- in favor of Stand Your Ground, which was not in effect in Ohio in 2004. In 2008, we had the Castle Doctrine put into our law. But in my own case, I was visiting a friend. Her ex-boyfriend broke into the house and attacked me with a chair like "The Jerry Springer Show." And I defended myself by hitting him with a baseball bat, breaking his jaw. Well, the police arrested me and charged me with felonious assault. And at trial, the judge -- I had a bench trial. I didn't have a jury.

  • 10:53:31

    JIMAt trial, the judge said, in Ohio, I had a duty to retreat. She said, when he broke in one door, I had to run out the other door and get away from there, even though that meant leaving the woman and child behind in the house with the guy who just broke in.

  • 10:53:45

    GJELTENOK.

  • 10:53:45

    JIMAnd I thought that was very unreasonable, but I was convicted because of that. I was put on probation, thankfully, you know, because, you know, I did have reasonable theory, and I didn't provoke the situation. Those were important elements of self-defense.

  • 10:54:00

    GJELTENRight. OK.

  • 10:54:00

    JIMBut this guy -- now that I'm a convicted felon over a violent crime, I can't own a gun. I can't defend myself if it happens again. And this guy is putting himself off as a victim when he's a criminal.

  • 10:54:11

    GJELTENThat's an interesting story. And I want to put that -- that's a fascinating anecdote. I want to put that situation to John Donohue at Stanford Law School. Do you think this prosecution of Jim, just on the basis of what you've heard from Jim, was understandable, justifiable?

  • 10:54:28

    IIIWell, as I understood it, someone broke into a dwelling where he lived, and, ordinarily, that's a situation where there is no duty to retreat. The Stand Your Ground law...

  • 10:54:37

    GJELTENBut he said he was protecting a woman there who was under attack as opposed to himself.

  • 10:54:42

    IIIRight. And ordinarily, the defense capability extends to protecting the life of another as well. But when one sees the issues that there are very tricky issues of, you know, factual determination that are obviously complicated when one person is dead. So I do think, in general, we can't expect, you know, more from the criminal justice system than it can reasonably be expected to deliver. And that's why I do think it's important that the law both strike the right balance.

  • 10:55:16

    IIIAnd also, that the message gets out to citizens who are thinking about self-defense, you know, exercise restraint as well. And also, for people who are thinking about buying concealed handguns, don't get enraptured with the vision that the NRA sometimes tries to convey that you'll be much safer and your life will be much better if you're carrying around a gun because many things can go wrong if you're carrying around a gun. And also, we haven't addressed the issue, but, roughly, a million times a year, guns are lost or stolen.

  • 10:55:50

    IIISo you, as a law-abiding citizen, are then arming the criminal element of the U.S. population, and that's also a concern. So I do think at the core of the Martin case and the Zimmerman case is the fact that we do need to think very carefully about whether Florida has been much too lax in providing concealed weapons to people who we would rather not be carrying those around.

  • 10:56:19

    IIIAnd I would underscore the point that was made earlier that this current legislation being considered by the Congress would extend that capacity to carrying this type of weapon everywhere in the United States, regardless of what the current state law is protecting citizens from those carrying.

  • 10:56:40

    GJELTENJohn, we're going to have to get to that issue in another show. You, I think, fortunately have had the last word here. We've run out of time. I know listeners wanted to call in. Our guests wanted to call in. We've been talking about a controversial issue, the Stand Your Grand laws, with John Donohue from Stanford Law School, Elizabeth Megale from Barry University, John Velleco from Gun Owners of America and Don Gross from the Brady Campaign. This is "The Diane Rehm Show." Thanks for listening.

  • 10:57:05

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture, Monique Nazareth, Lisa Dunn and Nikki Jecks. The engineer is Erin Stamper. A.C. Valdez answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter. This program comes to you from American University in Washington. This is NPR.

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