Analysis of the Supreme Court's last decisions of the term and the impact of a vacant seat on the bench.
On Saturday, a Florida jury convicted Michael Dunn of attempted murder for shooting into a car full of African-American teens playing loud music. But the jury failed to reach a verdict on the most serious charge of first-degree murder in the death of 17-year-old Jordan Davis. Critics blame Florida’s expansive self-defense law for the hung jury, which contains the controversial stand-your-ground provision. And the verdict comes just six months after another Florida jury acquitted George Zimmerman in the death of Trayvon Martin. Diane and her guests discuss renewed debate over the jury’s verdict in the “loud music” trial and stand-your-ground laws across the country.
- Ladd Everitt director of communications, The Coalition to Stop Gun Violence.
- Lizette Alvarez Miami bureau chief, The New York Times.
- Lance LoRusso principal, LoRusso Law Firm; former law enforcement officer; author of "When Cops Kill: The Aftermath of a Critical Incident."
- Elizabeth Megale associate professor of law, Savannah Law School.
- Michelle Bernard president, the Bernard Center for Women, Politics and Public Policy; author of "Moving America Toward Justice, The Lawyers' Committee for Civil Rights Under Law, 1963-2013."
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. On Saturday, a Florida jury convicted Michael Dunn of attempted murder, but a mistrial was declared on the first-degree murder charge in the shooting death of 17-year-old Jordan Davis. Joining me to talk about the partial verdict, race relations, and stand-your-ground laws around the country: Michelle Bernard of the Bernard Center for Women, Politics, and Public Policy, Ladd Everitt of The Coalition to End (sic) Gun Violence.
MS. DIANE REHMJoining us from Atlanta, Ga., Lance LoRusso of the LoRusso Law Firm, and from Savannah, Ga., Elizabeth Megale of the Savannah Law School. But, first, joining us from Florida is Lizette Alvarez. She is Miami bureau chief for The New York Times. Welcome to "The Diane Rehm Show," Lizette. I wonder if you would give us the sense of what happened in the courthouse at the verdict on Saturday. What was the reaction there?
MS. LIZETTE ALVAREZThanks, Diane. It was interesting because they deliberated a long time, it seemed. It was about 30 hours. And because of the questions they had asked the judge, there was already an indication pretty early on that they were getting hung up on something. And so when the verdict was announced, I think it wasn't really a surprise that the first-degree murder charge had tripped them up.
MS. LIZETTE ALVAREZThat's -- that was the indication we had gotten. When they decided to convict on attempted murder, I think, for the family of Jordan Davis, there was a sense of great relief for -- obviously, for Michael Dunn, there was not. But -- so there was an indication it was headed in that direction. It was still nevertheless very nerve-wracking and kind of disconcerting, I think, for everybody because it wasn't a clean conviction or acquittal. And it just seemed very complicated at that point.
REHMLizette, have any of the jurors spoken out? Do we know why they got hung up on that first-degree murder charge?
ALVAREZThey have not spoken out, and we do not know why. So it's all just kind of guesswork on our part. Nobody was -- only the 12 jurors were obviously in that jury room, so we do not know what exactly they got hung up on. But there were a couple of theories. One of them is they got hung up on the self-defense claim. Was Michael Dunn acting in self-defense or not?
ALVAREZAnd that was really the heart of the case. There was also a possibility they could have gotten hung up on whether to convict or acquit him of first-degree murder or a lesser charge, manslaughter, second-degree murder, which in Florida are automatically included in the jury instructions. And it's something that the jury also considers.
REHMI gather there's a certain amount of anger against the State Attorney Angela Corey, who is the same prosecutor who tried George Zimmerman.
ALVAREZAbsolutely. There have been some calls among members of the community for her to step down. I think they -- people were stunned in the community, in Jacksonville, in Sanford, but particularly among the black community, I think, in Florida that she did not succeed in convicting Zimmerman. And so here, I think, people went into this trial thinking that it was stronger case for the prosecution, a weaker case for the defendant. Yet, still, she couldn't get it done. And so I think there's just great anger that she should have, and she failed.
REHMLizette, what role did Florida's stand-your-ground law play in this case?
ALVAREZIt's a little complicated to know. But there's a broad self-defense law here, and stand-your-ground is a provision of that law. And obviously it was a law that was passed in 2005 that says, if someone has a reasonable belief that lethal force is needed to save his or her life or to prevent great bodily harm, that there's no duty to retreat. Now, the lawyer in the case -- the defendant's lawyer, Cory Strolla, he did not argue stand-your-ground in the courtroom.
ALVAREZHe did not say that Mr. Dunn had no duty to retreat because his larger claim was he shot in plain simple self-defense. There was no ability for him to retreat. That said, the problem becomes that it is part of the law, stand-your-ground. It is in the jury instructions. It is read by the jury, I'm sure, quite carefully because this is the crux of the case. And not only is it in the jury instructions, but it has now become kind of synonymous with Florida's self-defense law. It is what people tend to know about Florida's self-defense law.
ALVAREZAnd it grants people who claim self-defense an added layer of protection. And it's also the rhetoric, I think, surrounding the law gives people the feeling that you can stand, and you can do what you need to do to defend yourself, that you don't have to back down. And I think all of that has gotten so tied up together that it's very different to separate out a provision of the law with the larger law.
REHMLizette, is or was there any proof of self-defense? Were there any other weapons found?
ALVAREZNo. That's why people thought that Mr. Dunn had a relatively weak case because it was simply his testimony that bolstered his claim. He claimed that he saw Jordan Davis pointing the barrel of a shotgun at him from inside the car -- so it was out the window of the car -- and that Jordan Davis threatened him and then tried to get out of the car.
ALVAREZThe problem, as you said, is nobody saw the gun. There were witnesses in the area who saw various things. Nobody saw a shotgun. No shotgun was ever found by the police. And also, the teenagers, even as Michael Dunn was shooting at them -- and he shot 10 times -- and they were pulling away, nobody ever shot back.
ALVAREZAnd so one theory is, if they had a shotgun and somebody was shooting at them, they would have shot back. So that became a difficulty in the case for sure. Another problem was that Michael Dunn's fiancée on the stand really undermined his own testimony when he took the stand because she said that he never mentioned that any teenager in that car had pointed any weapon at him, a shotgun or anything.
ALVAREZAnd so common sense, as prosecutors told the jury, would indicate that, if she were in the convenience store and came out and was incredibly distraught at what happened, the first thing he would have told her is, well, they pointed a weapon at me, I had no choice. And that -- and she said that that didn't happen the night -- in the day after the shooting, which, again, you know, it does undermine his credibility. So I think there was some surprise about the verdict at the end of the day.
REHMMichelle Bernard of the Bernard Center for Women, Politics, and Public Policy has a question for you.
MS. MICHELLE BERNARDSure. Lizette, I wanted to ask, since you were there in the courtroom, I'm fascinated to figure out, what did it actually feel like to be there and hear how the defense handled the question of why the shooting was necessary if the vehicle that the kids were in was not only fleeing but the defendant shot 10 9-millimeter bullets at this vehicle? How did the defense handle that?
ALVAREZSo -- because Michael Dunn took the stand, he basically told the story. And what he said was that when he saw Jordan Davis attempting to get out of the car -- and he was kind of out of the car basically, although there was a dispute about that. Prosecutors said he never got out of the car, and he was shot sitting down -- and he had already seen the barrel of a shotgun, he felt that Jordan Davis was going to kill him with a shotgun.
ALVAREZAnd so he reached into his glove box. He took out his gun. He unholstered it. He put a chamber in the round. And he fired the first three shots into the door where Michael -- where Jordan Davis was sitting. And those were the three bullets that actually killed Jordan Davis. And then, at that point, it seemed that the car started to back out.
ALVAREZBut he was still afraid. He didn't know that he had killed anybody, he said. He just was in a panic because he felt that somebody was still going to pull a shotgun out and shoot him. So he continued to shoot as the car was driving away. And so there were four bullets shot into the front door. One of them, I think, missed, and three lodged into the front door.
ALVAREZAnd, fortunately, nobody was killed with those. And then the car continued to pull away. And he said, at that point, his thinking was that there was going to be what he called blind fire, that the teenagers were still going to take out the shotgun and kind of wildly shoot just because they were, you know, they wanted to kill him, or they were afraid, or, for whatever reason, they were going to shoot him.
ALVAREZAnd so he got out of his car. He crouched, and he continued to shoot at the SUV to prevent them from shooting him or shooting his fiancée who was going to be coming out of the convenience store or shooting anybody -- any of the witnesses that were there.
ALVAREZSo that is how he explained it. He said it wasn't something that he thought about. It was something that he just -- that is the way he reacted because he was so afraid.
REHMLadd Everitt of The Coalition to Stop Gun Violence has a question.
MR. LADD EVERITTWell, Lizette, the one thing I wanted to note is you had stated that the defense attorney, Dunn's attorney Cory Strolla, had never mentioned the duty to retreat in the trial or the stand-your-ground law that -- I would actually correct you on that. Just as one example, in his closing argument, Strolla said -- and I quote -- speaking directly to the jury, "His Honor will further tell you that if Michael Dunn was in a public place where he had a legal right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force."
MR. LADD EVERITTI think one of the most disturbing things to me about the Zimmerman trial and now the Dunn trial is this very persistent piece of misinformation or propaganda -- or I don't know what it is -- that the stand-your-ground law did not play an intimate role in these trials and that the defense attorneys never made reference to them, that's just patently untrue. And there are examples of that to prove that.
ALVAREZAnd you're right. I'm sorry. He did say that. I think what -- there wasn't a lot of emphasis placed on it in Mr. Dunn's testimony or even in some of the cross-examination. And I think that's sometimes where the confusion lies. It wasn't as if that was the crux of Strolla's case, that he could, you know, he did not have to retreat.
ALVAREZHe did not have to retreat. It was more that, you know, they were pointing a shotgun at him and he needed to react right away. But you're right. I mean, he did mention that. And it is in the jury instructions, and it is part of the law. There's no avoiding stand-your-ground. I mean, it is in there. It is something that the jurors have to consider. So it is. It's all tied together.
REHMLizette Alvarez, she's Miami bureau chief for The New York Times. I hope you can stay with us, Lizette. Short break here. We'll be right back.
REHMAnd welcome back. Here's our first email from Judy in Michigan. She says, "Stand-your-ground laws allow subjective feelings rather than objective facts. To determine if shooting another person is a crime, then we're going to have more and more of these tragic killings of teenagers and young people. And since people generally tend to see black teens and young men as threats, they will disproportionately be the victims." Elizabeth Megale of Savannah Law School, can you respond to that?
MS. ELIZABETH MEGALEYes, absolutely. Thank you, Diane. It is true that when you have a stand-your-ground provision or no duty to retreat when -- in cases where the use of force may or may not be necessary, you are creating a subjective belief. There's no way to come back and objectively measure whether that person should have tried to get away because there's no requirement for that person to try to get away under any circumstance.
MS. ELIZABETH MEGALEConversely, when you have a state with a duty to retreat, a jury can come back after the fact and evaluate, what would a reasonable person in the same circumstances have done? Would a reasonable person have been able to get away? Was it reasonable for this person to stay there and meet that confrontation instead of trying to get away?
MS. ELIZABETH MEGALEWhen you eliminate that duty to retreat and anyone can stand their ground based on a belief that they might be in danger, then that person's subjective belief is what controls. And I think that's what we saw here with the confusion on the verdict in the Dunn case.
REHMAnd here's another email from a different perspective from Robert. He says, "Perhaps it would be helpful if young black males stopped trying to act and appear as menacing as possible. It has an effect on people because young black males, who are about 3 percent of the population, commit 50 percent of the violent crimes." I'm going to turn to you, Lance LoRusso, for your thoughts on that.
MR. LANCE LORUSSOI can tell you that I was a street cop for a long time. I didn't look at anybody differently based on the color of their skin. This verdict doesn't surprise me at all. You know, what you saw was a verdict convicting a man of shooting into a vehicle, three counts of attempted murder for people that were not -- by anybody's argument were not using any force against him whatsoever, and the jury hung up on two things, in my opinion. We'd have to talk to them, but I think this is where they hung up. And this is why it doesn't surprise me at all.
MR. LANCE LORUSSOThe law always applies to a straight self-defense case. And this was a straight self-defense case. A man said he believed that a weapon was pointed at him. And it is always the analysis of a reasonable subjective belief -- now that burden is on the person using force -- but a reasonable subjective belief as to whether or not their life was in danger. The jury hung up on two things. One, first-degree murder requires premeditation.
MR. LANCE LORUSSOLooking at the facts of this case, premeditation -- or it's called in Georgia malice aforethought -- requires advanced thinking and intent to kill as opposed to any intent to do anything other than take a life, no justification whatsoever. And the second thing is the jury apparently was hung up on the fact that a person who was there, Mr. Dunn, made an argument to the jury that he believed his life was in danger.
MR. LANCE LORUSSONow, I don't think they put a lot of credibility in that. They clearly said that, as to these three other people they convicted him of shooting that he was not in danger of shooting at, he was not in danger. That's the three counts of attempted murder. And I think his actions, going home, ordering a pizza, spending a couple hours and never calling the police, I think that affected his credibility.
MR. LANCE LORUSSOBut the stand-your-ground laws provide about 20 percent of the analysis in a use of deadly force situation. And when Lizette was talking earlier, the stand-your-ground laws just say that if you are in a place you lawfully have a right to be and you are not the primary aggressor, then you have no obligation to retreat. They do not say you can use deadly force. It does not say when and how you can use deadly force. That is the 80 percent of the rest of the analysis in any use-of-force incident.
EVERITTYeah, I disagree with Lance's analysis there. I would like to read the jury instructions that juries have received in Florida prior to stand-your-ground laws and then after stand-your-ground laws. So prior to stand-your-ground laws, it read like this. The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
EVERITTThe fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if, by retreating, he could've avoided the need to use that force. And then if you go to the Zimmerman trial, this is what the Zimmerman jury got as to what constitutes justifiable homicide.
EVERITTIf George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.
EVERITTI think in the Dunn trial, this is the issue. No one could have reasonably -- no one can reasonably argue that Michael Dunn could not have avoided the escalation of force that night. You know, there was an initial argument between the two parties as to the loud music.
EVERITTYou know, supposedly, the music got turned back down for a while. Then it got turned back up. Then Dunn testifies, at that point, I wasn't going to ask for favors anymore. Well, that was a decision he made, to become angry, to escalate this thing. There's no reason in the world he simply could've waited for his girlfriend to come out of that store and driven home.
BERNARDYeah, I want to point out -- I mean, there are a couple of things that I think we need to address that don't necessarily deal with the jury instructions. But it deals with this culture and the email that you just read on the air about the "menacing black man." First of all, this was a child. He was 17 years old. Trayvon Martin was a child. He was a young teenager. And we've got here in this case Michael Dunn making comments about overly loud "rap crap." And then we also have Michael Dunn saying that the shooting was an effect of "thug culture."
BERNARDIf you are the mother, as I am, of a young African-American male, you have to ask yourself, what kind of protections are there for your son or daughter for just walking down the street or sitting in a car at a convenience store, as teenagers will do, and blare loud music, and some angry white male looks at your son and decides that they've had enough of "thug culture" or "rap crap" and is going to blow your son away? And I think that, from a policy standpoint, these states with stand-your-ground laws really need to look and see if the laws are allowing people to use racial bias as pretext for murder.
REHMLizette, turning back to you, we have an email from Louisa who says, "Please talk about the role the NRA and ALEC have played in spreading stand-your-ground laws throughout the U.S., which," Louisa says, "have led to more murders."
ALVAREZWell, in Florida, it was -- and elsewhere, I would imagine -- but it was absolutely pushed by the NRA. You know, it was crafted by the NRA. It was something that they really wanted because they felt that the self-defense laws should be expanded and that there should be given -- people who shoot somebody in self-defense should have even greater rights to do so.
ALVAREZSo that absolutely did play a role. And the Florida legislature and the governor -- Florida's legislature is dominated by Republicans, many of them conservatives, and the governor's also Republican. And after Trayvon Martin's death, there was a huge, huge push to just at least revisit some of these laws.
ALVAREZAnd the governor did call for a commission, and various people on this commission went around and took public testimony. And their conclusion was, you know, maybe we -- there are certain things that we could tweak, but the law, in and of itself, it should stand. It's a good law. And the legislature has not -- they basically have punted on this. They don't want anything to do with changing the law or weakening it, I should say, in any way.
REHMAll right. And, Elizabeth Megale, is the law written too broadly?
MEGALEIt is absolutely written too broadly, Diane. Right now, this law -- there's not a difference between self-defense and stand-your-ground. It's codified in the same section of the statute. It's 776.012 for anyone who wants to look it up. It is the only self-defense statute that exists in Florida. And that jury instruction that was just read is substantially the language from the statute. It basically says, if I'm walking down the street and I'm afraid because somebody looked at me funny or made a menacing look or I subjectively am afraid, I can kill that person because I was afraid.
REHM...how about you? Do you believe it's written too broadly?
MEGALEI'm sorry. Who was that question to, Diane?
LORUSSOWith all due respect to Prof. Megale, that's not what the law says. The law does not say you can use deadly force if somebody's menacing. The analysis of whether or not you appropriately use deadly force is not strictly said that you didn't have to retreat. The level of force you used is dependent on the force used against you. And I'll use this example. The stand-your-ground laws essentially say, if I'm walking down the street and somebody shoves me, that's a use of force against me, and I did not start that confrontation. I do not have an obligation to run.
LORUSSOAt common law, it was called preclusion. I was not precluded from using some force, any level of force, a shove, a punch, a kick to protect myself. I didn't have to wait until that person chased me down a blind alley before I could defend myself. The jump that people are making is that standing your ground automatically gives you the right under the law to use deadly force. And that is not the case in any state.
MEGALEThe problem is it's also, as you said, coupled with the standard self-defense laws which are you have to, you know, have a reasonable belief that legal force is needed or, you know, behave in the way that a reasonable person would behave. And I think that becomes very subjective taken altogether.
LORUSSOIt's always been subjective, though, according to the U.S. Supreme Court.
MEGALEIt always has been, but I think with the added layer of the stand-your-ground provision that was added, it becomes almost just more charged, I would say and adds another layer of complexity to it, I think, for people. And it becomes -- the subjectivity, I think, becomes more...
MEGALE...I don't want to use the term dangerous, but more complicated.
BERNARDI would argue that to say that it becomes more dangerous is absolutely right on target because the bottom line is, if someone looks at you or particularly looks at an African American male and has decided immediately by virtue of that person's sex and color that they are menacing, it can be used -- it doesn't mean that it's reasonable, but it can be used as pretext to kill you.
BERNARDAnd right now in the State of Florida, based on what we saw happen with Trayvon Martin and again last week with Jordan Davis, if you are a young black male, what it tells African-Americans is that the justice system is for just us, meaning just whites, not blacks.
REHMAnd you're listening to "The Diane Rehm Show." Elizabeth Megale, how many states have these stand-your-ground laws now?
MEGALEMy most recent research shows that 26 states have stand-your-ground laws. There are 46 with Castle doctrines. And the Castle doctrine says you don't have a duty to retreat if you're attacked in your home. But the stand-your-ground law where you don't have to retreat anywhere you have the lawful right to be, you know, public sidewalk, anywhere else, that's 26 states.
EVERITTYeah, I just want to -- going back to the enactment law by the NRA, I just wanted to make a very important point You know, like Elizabeth just said, this law is now in place in 26 states. The NRA has yet to provide, as far as I'm aware, a single example of a law abiding gun owner who exercised a legitimate act of self-defense prior to these laws who was wrongfully prosecuted or convicted. I am not aware of a single example they have provided where laws prior to stand-your-ground were inadequate.
EVERITTThe example they provided in Florida to justify the first stand-your-ground law was a case where a disoriented FEMA worker during a hurricane wandered onto a man's property, started to walk into his trailer. He's asked for a glass of water, and this man was fearful and shot this FEMA worker, and felt terrible about it, by the way. But, you know, prosecutors analyzed that case, never brought charges, and yet that is the only case the NRA has put forward as justification for this law which has led to so much more additional homicide.
REHMLance, do you want to add to that?
LORUSSOSure. I mean, I think that when you look at -- you're looking at this case, when you look at self-defense in a larger picture, you can use an active shooter situation. If you have somebody there who is armed, one of the things that's common among active shooter situations, whether it's law enforcement or a private citizen, those situations have ended faster if somebody is armed that's there.
LORUSSONow, if you're saying to someone that you have an opportunity -- if you have an opportunity to leave, you're precluded from using deadly force until you run away and are cornered, then what you're essentially doing is putting more people in danger.
REHMHere's an email from Kathleen who says, "I'm a white woman in Akron, Ohio. I have an African-American godson, 10 years old. I had the same sick feeling when I heard this verdict as I had regarding Trayvon Martin. After the Martin case, my godson's mother told me she does not allow her son to go outside without her. She does not allow him to wear hoodies. She is teaching him how to act around authority figures such as police. His mom has been forced to teach him the difference between how to act in a white world and a black world.
BERNARDAbsolutely. And you will hear this from mothers and fathers all over the country. And today, you know, most young kids coming up don't think in terms of race. And they don't think in terms of black and white. And if you have a black male as a child, you have no choice to teach him that the law will always look at him differently, not just the law -- it starts off in schools. We have this whole school-to-prison pipeline that is a completely different topic but analogous here.
BERNARDBut when we deal with law enforcement, you have to think -- the perfect example is you can -- anyone can take a look at it online today. There are photos of a young man. Right after the verdict, he's holding a big poster over his face, a young black child holding a sign, and it says, it could be me. And then he has three lines.
BERNARDOne says, holding a hoodie -- wearing a hoodie, holding Skittles, and also playing loud music. And that is the story for every young African-American male in this country today. It could be you. And people will sit around and have scholarly discussions about the impact of stand-your-ground laws all over the country. But the bottom line is this should not be a scholarly discussion. It is a policy problem. We are allowing racial profiling by allowing these laws to be as broad as they are.
REHMAnd who's working against these laws, Ladd?
EVERITTWell, the entire gun violence protection movement is working against these laws. And there's many good groups that have done that, you know, certainly groups in Florida, but also nationally.
REHMLadd Everitt, director of communications for the Coalition to Stop Gun Violence. Your calls when we come back.
REHMAnd welcome back. We are talking about certainly the death of Jordan Davis by Michael Dunn in Florida. There is another case of stand-your-ground in Florida. And, Lizette, I'm going to come to you on this. This was the man and his wife at the movies. He was texting his daughter's babysitters during the previews to check on his daughter. Here, a retired police officer sitting behind him asked him to stop texting. What happened next, Lizette?
ALVAREZHe asked him to stop texting. There was an exchange of words. I think the texter turned around and said, you know, give me a break. I'm texting my daughter's babysitter here. And it was during the previews still. And there was more of a kind of exchange of words. And then, at some point, the texter stood up and tossed popcorn, it looked like, onto the retired police officer who said apparently that he felt like he had thrown something, that something was coming at him, and he reacted angrily, pulled out his gun, and shot the texter.
ALVAREZAnd then he just kind of sat down. When you watch the surveillance video, it's very weird. He just kind of sat down and waited. And then an off-duty police officer came over and took the gun away and arrested him. And in that case, race was not involved. These were two white men exchanging words.
REHMYes. Ladd Everitt?
EVERITTYeah, well, one point I would bring up about this case is, you know, obviously, in many of these stand-your-ground cases, we see blatant examples of racism.
REHMIs this another stand-your-ground case?
EVERITTIt very well could be. I'm not sure exactly how the defense will pursue this in this case. But the point I want to make is that stand-your-ground laws and self-defense law in Florida in general is also a threat to white men and whites. There was study done by the National Bureau of Economic Research. According to their estimates, they found that 28 to 33 additional white men are killed every month as a result of stand-your-ground laws.
EVERITTAnd they found -- and I quote -- "We find no consistent evidence to suggest that these laws increase homicides among blacks." Now, there's some discrepancy between studies on that. But, look, these laws are a threat to everyone, and they are written in a way -- and I can't emphasize this enough -- that allow you to escalate from force to deadly force, not just when you fear being killed.
EVERITTBut the language of the law is when you fear -- and I quote -- "great bodily harm." That essentially means getting beat up. That allows a guy who is in a dark movie theater and gets popcorn tossed on him -- might think that punches are coming -- to basically open fire. That is sick. That is immoral. And that is a radical change in self-defense law as it has existed for centuries.
LORUSSOAnd that's not what the law says. When I wrote the book, "When Cops Kill," I wrote it for a reason. I deal with this not in a laboratory and not in a scholarly discussion. I respond out to officer-involved shootings. All of the reaction times we're talking about, the reasonableness of the use of force, if the case in the Florida theater is that a man had popcorn thrown on him and he shot someone, that is not reasonable by any measure, and he will go to jail.
LORUSSOMr. Dunn is going to jail, probably for the rest of his life, with three consecutive 20-year sentences. He's 47 years old. The law does not say that a fear of great bodily injury allows you to automatically shoot. There's an analysis that takes place there.
LORUSSOThe general law of the use of deadly force says that you can use deadly force when someone is either shooting at you, that will basically create a reasonable risk of a serious bodily injury or death, or using some other method, a knife, a brick, something like that that could cause a serious bodily injury. The fact that you think it might be coming is not sufficient in any state to use deadly force.
REHMAll right. I think Elizabeth Megale has something to say.
MEGALEThat analysis does not apply in Florida. The statute has been written broadly enough to cover circumstances where the person who is being shot does not have a weapon. It is the subjective belief that there might be some sort of violent encounter. So if someone looks at another person and looks menacing or makes a fist and looks like they might come toward them -- even if that person doesn't actually follow through -- the person who feels threatened can stand his or her ground.
MEGALEThat is how broadly the law is written. And that was the intention. If you look back at the testimony that was presented when the law was initially passed back in 2005, the testimony from Marion Hammer, who's the former president of the NRA that crafted the language of this bill, she said, I should be able to shoot and kill someone who I think might rape me.
MEGALEI shouldn't have to wait until that person touches me. I shouldn't have to wait until that person grabs me. I should be able to look at someone and think, this person could rape me, and shoot and kill that person. That was the intention of this law. That is how they wrote it. And I think that's true in the…
REHMI invited Marion Hammer, former NRA president, to join our discussion today. She declined via email and phone. Going to open the phones now, 800-433-8850. First let's go to Berryville, Va. Hi, Ben. You're on the air.
BENThank you very much for taking my call.
BENMy big question is that, while this guy's a convicted felon now -- he may be on appeal, but he's still a convicted felon -- who's coming from the state to take away his firearms? And who's going to take away the firearms of anybody he lives with, if he ever does get out? Because he's a convicted felon, and there can't be guns in the house.
EVERITTWell, I'm assuming in this case -- and particularly because it's such a high-profile case -- there will be an order from a judge to get those firearms or to order Mr. Dunn to turn them in. But, you know, let's be honest here. Florida is a state with very loose gun laws.
EVERITTAnd in the overwhelming amount of cases where, let's say, if you've bought a gun or even if you have a concealed hand gun permit and later have a felony, there are not rigorous procedures in place to go out and seize those firearms from people who become prohibited purchasers. The only state in the country that does that in a proactive manner is California. And they do it very well, but very few others do.
REHMAll right. To Thomas in Flint, Mich. You're on the air.
THOMASHi, Diane. Thank you for taking my call.
THOMASI'm a licensed concealed weapon holder in Michigan here. And I'm a little concerned that first-degree murder was considered to begin with. The self-defense situations usually happen very quickly. Why did they consider first-degree murder? Usually, there's premeditation involved there. He didn't go after these kids. He didn't go looking for them. Clearly, he exhibited bad judgment, but he didn't leave the house looking for these guys.
REHMAll right. Elizabeth Megale.
MEGALEIn Florida, the law's been interpreted that premeditation can form between the first pull of a trigger and the second pull of a trigger. So premeditation was appropriate to consider when you have 10 shots fired at this vehicle.
REHMNow, is that different in other parts of the country?
MEGALEPremeditation is interrupted differently in different states, but most states have some doctrine that allows premeditation to form shortly before the killing. So, in other words, you don't have to leave your house on a mission to kill somebody, but you could form that premeditation through a series of events that might take place.
REHMGo ahead, Michelle.
BERNARDSo, Diane, what I would add, based on what she just told us -- this is what makes this case even more disappointing, that a jury was unable to find premeditation in this case because you've got a fleeing vehicle. You have 10 9-millimeter bullets. You have a defendant who has made reference to "thug culture" and "rap crap." So it's very difficult to see how there wasn't premeditation in the instant that he decided to go after that vehicle because of "rap crap" and unload his 9-millimeter gun into the car.
REHMLizette, did Mr. Dunn's wife testify?
REHMHis fiancée? And what did she say?
ALVAREZWell, she did not actually witness the shooting because she was inside the convenience store buying wine and chips. So when she came out, it was over. And obviously she heard the shots and was very afraid inside the store, and nobody could figure out what was going on. So she walked out, went directly to the car, and he said, get in, get in. And so then they left.
ALVAREZAnd she was very, very distraught, by her own admission. And she testified that she didn't see the shots. And they went back to the hotel, and he ordered a pizza for her because she was very hungry. He took the dog -- they had a dog, Charlie -- I think a French bulldog -- and took him out for a walk. He had a drink to steady his nerves. At one o'clock in the morning, he read a news report that somebody had died at the gas station, but he didn't say anything at that point to her. She was asleep.
ALVAREZHe went to bed at 5:00 in the morning. He woke up -- they both did, and she said, the next morning, she wanted to go home, back to Brevard County, because they weren't from Jacksonville, and she was very afraid. And so he testified that they drove home. During that entire time, she said that he never mentioned that anybody had pulled a weapon on him.
ALVAREZAnd she said that as a rebuttal witness, after he had testified. And so, again, that was kind of shocking, I think, for some people because that would be the first thing that you would probably say to your fiancée if she had kind of stumbled into this horrible shooting.
REHMAll right. To Shawn in Wassaic, N.Y. You're on the air.
SHAWNGood morning, and thank you for taking my call.
SHAWNI find it utterly detestable that the only person who responded to that disgusting email that Ms. Rehm read was the only phenotypically African-American person there. I say this because, you know, there is such a thing as a so-called white privilege. And I think that that's the underlying problem that we seem to constantly avoiding.
SHAWNIt is the equivalent of asking Mrs. Lincoln, you know, how the play was, other than her husband getting shot. You know, this is a major problem in the United States today. I have to tell my son -- I live in the suburbs, in Wassaic, very bucolic. But when I go to the city, I have to tell my son to not wear his hood because of what could come afterwards.
SHAWNAnd he's only 14. You know, it's very shameful that no one but that one person answered that question. And I just want to say, this is something to be disappointed in America for because, while we do have the issues as so-called African-Americans, I think that we need to stop letting the descendants of Europe stop ignoring the problems that they caused by ignoring the elephant in the room.
REHMAll right. Shawn, I'm glad you called. Elizabeth, can you speak to that?
MEGALEYes. I agree. I think that this law does reinforce inherent biases and stereotypes. I think it makes it difficult for African-Americans, particularly young males, to sort of be themselves, that they have to be consciously thinking about every step they make, every article of clothing that they put on because they might be perceived as a threat because of their status. But I also think that there's a part of this law that is further reaching than that. And the example of the movie theater shooting shows us that. It is having an impact because it's happening to inherent stereotypes and biases.
REHMAnd you're listening to "The Diane Rehm Show." It's almost, Lizette, as though we're going back to the early days of the civil rights movement.
ALVAREZI think that's right. I mean, after Trayvon Martin's death and George Zimmerman's trial -- or during that entire process -- there was, I think, a real conversation that got underway about how race affects everybody in America and how race is still something that needs a lot of work. Race relations still need a lot of work. And I think that not a lot of progress has been made in one year. And I think that that is just absolutely is the elephant in the room, and America has to deal with it...
ALVAREZ...and has to be just more, I think, forthcoming.
REHMMichelle, tell us what happened to your brother in South Carolina.
BERNARDYeah, so my brother, who lives here in the Washington metropolitan area, was stopped recently, driving home. He doesn't like to fly. So he's driving home from a golf tournament in Florida and got pulled over in South Carolina. The police officer followed him across the state. He is a law-abiding citizen.
BERNARDAnd when he asked why he was pulled over, he was told by the police officer that it's not a law that's written anywhere. So there was nothing that the police officer could do to tell him how to avoid being pulled over while driving as a black man through the South, from Florida, on his way back to the Washington metropolitan area.
BERNARDSo this is -- nothing has changed. Nothing has changed since the George Zimmerman trial. For every step we have taken forward, we take 10 steps back. And I hate to say it over and over and over again. This is not a post-racial America. I believed it after President Obama was elected. I was wrong. For every step forward we have taken, we have taken 10 steps back.
BERNARDWhen someone can testify in a trial about "rap crap" and "thug culture" as a justification for murdering a 17-year-old boy and a jury can't find premeditation, it's no different than the mass lynchings that we saw 50 years ago.
REHMLance LoRusso, last word.
LORUSSOWell, I would tell your caller that we're all trying to be polite. I think all of us would have responded to that email if we could have. I think that one of the things we need to look at, when we're looking at the use of force, the use of force is going to be judged as whether or not it's objectively reasonable. Someone who drives -- and law enforcement actions, as well.
LORUSSOSomeone who drives across South Carolina or any state and is stopped because of their race should file a complaint, and that officer should be fired. If that's the reason they -- nobody tolerates this. When I was on the street as an officer, I didn't treat people differently based on the color of their skin. So I think that what we really need to look at is, what is the law and what do we want the law to be? Do we want to put a blanket absolute mandate that you retreat if you're lawfully in a place and force is used against you? And I don't believe we do.
REHMBut the question becomes, do stand-your-ground laws make us safer? Ladd?
EVERITTNo. There's no evidence that they do. In fact, all the studies that have gone in and got under the hood on this show that they increase homicides and that they're not having any effect in deterring burglary, robbery, or aggravated assault. Look, the situation is this. Going back to biblical law, the law has always put a premium on preserving human life whenever and wherever possible. These laws flip that on its head. They cheapen human life. And they are immoral.
REHMLadd Everitt of the Coalition to Stop Gun Violence., Michelle Bernard, president of the Bernard Center for Women, Politics and Public Policy, Lance LoRusso -- he's with the LoRusso law firm in Georgia, author of the book, "When Cops Kill: The Aftermath of a Critical Incident" -- Elizabeth Megale, professor at Savannah Law School, and Lizette Alvarez of the Miami New York Times -- she's bureau chief there -- thank you all so much.
LORUSSOThank you for having us.
BERNARDThank you, Diane.
REHMAnd thanks for listening, all. I'm Diane Rehm.
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