Monday, April 2, 2012

You Could Be Trayvon Martin!

It's not only young black males who are threatened by the Stand Your Ground laws, bad as that is. Like seventeen-year-old Traynor Martin, we are ALL newly at risk of being shot by some trigger-happy, gun-toting jerk who will face no repercussions.

In my area of central Pennsylvania a young white man was recently shot and killed when he merely approached the wrong house by mistake. The shooter inside the house suffered no consequences. In this case, he was "Defending His Castle", an ancient doctrine that in recent years has gone from strictly-defined to loosely allowed in many states.

The recently-loosened Pennsylvania law that shielded the shooter is a milder version of the Florida law. Pennsylvania previously required that the castle defense be based on some more overt evidence of intent to enter the dwelling than merely approaching it. That made sense because salesmen of aluminum siding, religious missionaries, and do-gooders raising funds for charities may approach a house in all innocence. They may be a nuisance, but they don't deserve to be shot because someone in the house got nervous.  Under the older law, the common advice of cops to householders genuinely threatened by a burglar or other miscreant was, "Shoot if you're sure. Then drag the body over the doorsill before you call us." There had to be some hard evidence that the dead guy had indeed intended to enter.

Those days are over.

In the increasing number of states with looser self-defense (or castle-defense) laws, we are all at risk. In the wildest extreme, if we go to a neighbor's house to borrow a cup of flour, the neighbor shoots us before we even get to the back door merely because she felt afraid. Or if we stop at a house to ask directions. Or go collecting for the Cancer Society. The risk runs strongest where, as in Florida, the shooter apparently need only assert that he "felt threatened", not just in his own house but ANYWHERE!

Equally bad, the defense apparently kicks in IMMEDIATELY as a practical matter, virtually precluding arrest, prosecution and trial by jury as to whether there were any grounds for fear on the part of the shooter or any evidence SHOWING the shooter was actually afraid. All the shooter needs to do is claim to have been fearful.

In Florida a self-defense killer apparently doesn't have to prove anything in court. Under Florida's apparent application of the law, there won't even be a court case. If there were, the prosecution would have to prove that the killer of Trayvan Martin did not feel afraid of the youngster.

How in the hell do the cops and the prosecution prove THAT? How do you ever prove what's in someone's mind? That's the question asked by the police chief in charge of the Traynor Martin case.

What's been lost in the outcry over the Traynor Martin killing is that the Florida law apparently shifts the burden of evidence in asserting self-defense. At least that is the reading seemingly given the law by the district attorney who, at the outset, refused the police request for prosecution of the shooter. It appears that the DA thought the police simply didn't have enough evidence (or couldn't get it) to meet their newly-imposed burden of proving that the shooter did NOT FEEL frightened enough for his own safety to warrant killing Traynor Martin. And that DA may be right about the Florida statute, that there's no amount of evidence that can meet the police burden.

In the recent "old days", the accused had the burden in most states of showing that "a reasonable man" would have felt sufficiently threatened to warrant killing a perceived attacker. This is, more or less, the "objective test", and was applied by juries: What would a reasonable man have felt and done in the circumstances?

Now the Florida law apparently abandons any "objective" standard and merely focuses on how the shooter SAYS he felt. That's a "subjective" test in the extreme.

And it's virtually unmeetable for police or the judicial system. No matter what evidence the police might have discovered in the Traynor killing through more thorough investigation, it's hard to see how they could have utterly discredited the shooter's claim of how he felt. We CAN'T know what he truly felt subjectively, and he well may have actually felt threatened, though for no good reason. He certainly seems like a guy who is living out some serious hallucinations about being the good guy, the enforcer, in a world of vicious evil-doers who litter, or leave garage doors open, or drive fast on "his" streets. No matter how ego-inflated, misplaced and unreasonable his fear was, all he has to do is claim it.

The police now wear the handcuffs. The judicial system is handcuffed. All of the arguing on television and the Net about what really"happened" is pointless and irrelevant. Seemingly, all that matters is what the killer CLAIMS was in his HEAD. No mere facts can challenge that. Even the fact that he initiated the situation doesn't count. Nor does his pursuing the victim count even though that seems the opposite of "stand your ground". Nor does the police operator telling him, vis-a-vis following the boy, "We don't need you to do that".

All the shooter needs to do is keep moving his moment of fear closer to the actual shooting, and thus he can walk right over everything else. If the local district attorney is correctly interpreting the Florida statute, all that counts is how the shooter felt the moment before he killed. No matter what he felt or did, when he first saw the boy, or began following him, or defied the police instructions to desist. All that matters in Florida, it now appears, is how he felt just before he pulled the trigger. And thus all he has to do is keep moving the goal posts in his version of events. He doesn't even have to be STANDING his ground; he can be lying on it with Traynor under him or over him. All he has to do is say that, at the critical moment, he was afraid for his safety.

And that's exactly what he and his family have been doing over the past week, moving the goal posts to that last critical moment as they amend the shooter's story day by day. It took a while for his attorney to get them on the right track, but it's happened now. The extended, piecemeal version of the shooter's story, emerging over about two weeks, indicates serious coaching on the part of a slow-thinking lawyer or else it indicates a slow-learning client. (A defense attorney may not encourage a client to lie but can certainly "explain the law" to him until the client grasps what kind of story he has to produce.)

Maybe a more senior district attorney in Florida will sort out this mess. Maybe there's a way of reading the Florida statute so that a killer's claim as to how he felt is not the sole factor in whether a case is pursued. Let's hope so for the sake of some sanity in Florida, where such always seems in short supply.

But there are two larger issues beyond this specific case. (A third big issue, that of racism, is being thoroughly discussed by others, as well it should be.) First, how could so many states have suddenly adopted these looser self-defense laws almost simultaneously? Second, how can you keep youself and your teenagers from being killed for absolutely no good reason by a trigger-happy or unreasonably fearful neighbor or by a police officer?

The answer to the first question deserves a posting of its own when I've finished doing some more fact-gathering. The answer to the second is as follows (based on the advice of good police officers and other experts):

1. Never challenge a police officer! All of them are terrified of being shot by YOU. Especially if you are a young male. Keep your hands at your sides. Keep your hands visible at all times. Don't reach for a pocket or even to scratch your head. Don't run away. Be polite. It's "Yes, Officer" and "No, Officer." DO NOT interfere with a cop's actions against even your best friend. All wrongs in that moment can be righted later, but not the cop's shooting and killing you and your friend because you made a wrong move.

2. Increasingly, one has to be as cautious when confronted by private security guards as when confronted by a police officer. Private security guards in many states are now allowed to be armed. (Is there anybody who can't carry a gun these days?) And there's lots of these pseudo-cops who may be as puffed up about the dangers they face and the power they have as was the killer of Traynor Martin.

3. If you live in one of the states that has Florida-type loose laws on self-defense and defense of the castle, don't go door-to-door for any good causes. Don't even go to a neighbor's house to borrow a cup of flour without calling ahead.

4. Try not to get your neighbors angry with you. As things now seem to be, they can stand their ground right up until they have "legally" shot you and, in due course, are standing on the ground where you are being buried.

Sounds like I'm being an hysteric? Well, Traynor Martin's family certainly never anticipated that he could be legally shot down dead because some jerk "felt" threatened. Traynor just went off to the store for candy that rainy evening.

And he never came back.

So watch it! Ye Olde West rides again! It's every gunslinger for himself! And the rest of us had better practice ducking!



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