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Monday, April 09, 2012

"Stand Your Ground" Law In Kentucky, And Other States.

'Stand your ground' gun laws, like that of Florida's, adopted in Kentucky, Indiana
21 states allow 'stand your ground' use of deadly force in self-defense

Written by Andrew Wolfson

After Janice Hasch shot and killed her husband, Jerald, in Bullitt County on April 14, 2008 — in self-defense after years of abuse, she said — a detective asked her a dozen times if she could have fled their house and avoided the need for deadly force.

At her trial, the prosecution also stressed she could have left and she was wrong to believe she had to shoot to defend herself.

Hasch, now 61, was convicted of reckless homicide and sentenced to two years in prison, but the Kentucky Court of Appeals in 2010 reversed her conviction, citing a state law enacted four years earlier that says there is no “duty to retreat.”

“No retreat” or “stand your ground” laws — enacted during the past few years in 21 states, including Kentucky and Indiana, at the behest of the National Rifle Association — have come under fire recently in the wake of a high-profile case in Sanford, Fla., that left an unarmed teenager dead.

In that case, local authorities cited Florida’s statute when initially saying that crime-watch volunteer George Zimmerman couldn’t be charged with the Feb. 26 shooting death of Trayvon Martin.

Zimmerman’s lawyer has said his client was acting in self defense. State and federal officials are investigating.

But the case has set off a firestorm among those who argue that gun laws such as those in Florida, Kentucky and Indiana make it too easy for anyone to pull the trigger, then avoid criminal charges by arguing self-defense.

In an interview, Jefferson County Commonwealth’s Attorney Dave Stengel called Kentucky’s law “horrible,” saying it gives homeowners and motorists a license to kill, even in defense of property.

Kentucky courts have long held there is no duty to retreat when threatened with serious harm or death.
Kentucky tradition

“It is the tradition that a Kentuckian never runs — he doesn’t have to,” the state’s high court said in 1931, reversing the manslaughter convictions of two men who killed a third in a drunken brawl.

But Kentucky and Indiana followed Florida in enacting legislation expanding and codifying the “castle doctrine” — that a man’s home is his castle and he has the right to defend it.

The Kentucky legislation added that a person is “presumed” to have used reasonable force if the target had unlawfully or forcibly entered the person’s residence or vehicle. The shooter no longer had the burden of proving that his fear was reasonable.

Reversing Hasch’s conviction, the Court of Appeals also said that the option of retreat could no longer be part of the equation in deciding if a defendant acted recklessly in using deadly force in self-defense. The commonwealth has appealed, and the case is pending at the Kentucky Supreme Court.

The National District Attorneys Association said in a 2007 study it is almost impossible for prosecutors to rebut the presumption that a defendant acted reasonably, and that laws like Kentucky’s will create “a new protected set of behaviors that might otherwise be considered hate crimes or vigilantism.”

The NRA has not commented on the Florida shooting and didn’t respond when asked about its support for “stand your ground” laws.

The sponsor of the Kentucky legislation, state Rep. J.R. Gray, D-Benton, now retired, said the statute has worked exactly as he envisioned it by giving law-abiding citizens power to defend themselves without fear of prosecution.

And he said it doesn’t create the right to to shoot someone else without provocation. Sen. Damon Thayer, R-Georgetown, one of the bill’s Senate sponsors, also said it has been beneficial to potential crime victims who have a right to protect themselves and their property from criminals.

Nobody keeps track of whether shootings in self-defense have increased in Kentucky or Indiana since they adopted the no-retreat provision by statute in 2006, a year after Florida’s “Personal Protection Bill” went on the books.

But in Florida, the average number of such deaths annually climbed from 13 in the five years before that law was enacted to 36 in the five years after, according to the state Department of Law Enforcement.

State Sen. Kathy Stein, D-Lexington, who opposed Gray’s bill when she was a House member, warning that it would create a dangerous “shoot-first” mentality, said she doesn’t believe it has led to a spate of violence.

But she said it may have figured in one case in which she said an innocent person was killed.

In April 2008, Tadarvis Gardner, 22, of Lexington, told police he thought someone was trying to kick in his front door when he fired a shot through it, fatally injuring Andreas Lobsiger, 36, who was unarmed and apparently confused the house with the home of a friend three doors down. Prosecutors presented the case to a grand jury, which declined to indict.

Fayette Commonwealth’s Attorney Ray Larson said last week the right to self-defense is especially important given that felons are being released early from prison for budgetary reasons.

The statute also figured prominently in a high-profile Jefferson County case in which former University of Louisville baseball player Isaiah Howes shot and killed former football player Daniel Covington after the latter tried to get inside Howes’ sport utility vehicle on Sept. 16, 2010.

Citing the law, Jefferson Circuit Judge Barry Willett said that by leaning into the passenger window, assaulting Howes and another passenger, Covington triggered Howes’ right to defend himself with deadly force. Even though somebody in Howes’ vehicle uttered racial slurs against Covington, who is black, Willett said that provocation did not rise to the level that it eliminated Howes’ right to defend himself.
Immune from arrest

Under the law, Howes was immune from arrest or prosecution, and Stengel’s office could not present the case to a grand jury, Willett said. The prosecution had argued that Howes could have driven away.

Assistant Commonwealth’s Attorney Tom Van De Rostyne, who argued the case, said that prosecutors must review cases more carefully because of the 2006 statute. Stengel said police may elect not to bring charges for fear that a defendant will successfully challenge them under the no-retreat law and the department might be found liable for a wrongful arrest.

Indianapolis police brought no charges against a father who in 2008 strangled a naked man who had broken into his daughter’s room wearing only a mask and latex gloves and carrying a rope, condoms and a knife, the Indianapolis Star reported. And this year, Marion County Prosecutor Terry Curry, without taking the case to a grand jury, did not charge a Kroger manager who fatally shot a man trying to rob the store.

Prosecutors and defense lawyers in Kentucky said that the law makes it more likely that a case is never brought, rather than requiring a defendant to argue self-defense at trial.

Indiana state Rep. Linda Lawson, a former Hammond police captain, says she hopes the Trayvon Martin shooting prompts states to give “stand your ground” laws a second look. But the measure passed overwhelmingly in the Indiana General Assembly; she was one of only 23 to oppose it in 2006.

In the Kentucky legislature, only nine members in both chambers combined voted against it. Rep. Mary Lou Marzian, D-Louisville, who cast one of the nay votes, said she’s heard no discussion of repealing it.

“They have never found a gun bill they don’t love in Kentucky,” said she of her fellow lawmakers.

University of Kentucky law professor Robert Lawson, the principal drafter of Kentucky’s penal code in the early 1970s, said he and others proposed including a “duty to retreat as long as it could be done safely” but the legislature rejected it.

Prosecutors around the state says the 2006 law is only rarely asserted.

Tim Coleman, president of the Kentucky Commonwealth’s Attorneys Association and the elected prosecutor for Butler, Edmonson, Hancock and Ohio counties, said he’d never heard of it coming up.

Public advocate Ed Monahan, the past president of the Kentucky Association of Criminal Defense Lawyers, said the law has been used “fairly regularly” to reduce homicide cases from murder to manslaughter; but the Department of Public Advocacy, which he runs, was unaware of any recent case in which a defendant was acquitted completely based on the right to defend oneself without retreating.
Retreat as option

Though Monahan said it is “essential that we are able to protect ourselves when faced with harm,” he added he thinks a person who is threatened but can safely retreat to avoid violence should have a responsibility to do that “before a life is needlessly taken.”

In the Florida shooting, Trayvon was walking to the home of his father’s girlfriend, carrying a cellphone, iced tea and a bag of Skittles, when he was shot to death by Zimmerman.

The Sanford police department’s lead homicide investigator recommended Zimmerman be charged with manslaughter, but he was overruled by a state’s attorney who said evidence was insufficient in light of the “stand your ground” law. The case is under investigation by the U.S. Justice Department and a special prosecutor appointed by the Florida governor.


Editor's note: Kentucky law

Use of defensive force regarding dwelling, residence, or occupied vehicle
A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force intended or likely to cause death or great bodily harm to another if:
• The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
• The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred
The law also says:
• A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.
• People using deadly force in such situations are immune from civil liability.
Indiana law

Use of force to protect person or property
A person is justified in using deadly force and does not have a duty to retreat if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony.
• A person is justified in using reasonable force, including deadly force, against another person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, property or occupied motor vehicle.
• People using deadly force in such situations are immune from civil liability.
Florida law

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

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2 Comments:

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7:53 PM  
Blogger danger_madness said...

I am a very strong proponent of the castle doctrine and the "No duty to retreat" swing finally being enacted into the legislature. I think what all the "nay-sayers" tend to always forget when debating laws and ideas related to this area of self-defense is, the poor wounded or deceased, God bless them, they were always so nice and always went to church and didn't curse, brushed their teeth before saying their prayers, THEY ARE COMMITTING A CRIME PEOPLE!!! Wake up, if they hadn't positioned themselves to be accosted or on the business end of a law abiding citizen who is fed up from living in fear of protecting what is theirs by laws designed to punish decent people who don't wish to be a victim of assault ,rape,burglary,arson,kidnapping,etc...then all they would need to do is to not try to
break into someones home or vehicle and commit a crime. SIMPLE. Every decision has a consequence. A + B = C. A... if you choose to risk ur life to take my TV, sexually assualt my wife or daughter, otherwise harm anyone withinn the confines of my property..... B... I will meet force will force and rain down upon thee great vengeance and will stop at nothing to protect my family and property from would be
criminals...C...and do everything in my power to extinguish the very breath that remains inside the person who had evil in his heart until he is no longer a threat to me or my family. I suspect the law makers and legislators who have themselves NOT been a victim or had a family member,close friend or colleague who was affected by such a horrendous crime,close their eyes, imagine themselves in countless situations and scenarios where unspeakable acts were to happen to their spouse and children, then tell them to not grab that pistol or bat or whatever you can, and to retreat, run away, leave their home while danger still exists. search for a cellphones while the crime is being perpetrated against loved ones or property being stolen and damaged and try to even remember how to unlock the screen and remain their composure while calmly explaining to the police dispatcher how unknown person(s) have entered your home, threatened your life and those of your family, but not to worry, we do own a firearm but it is secured in a safe with a trigger lock and the ammunition isn't anywhere near it for the safety of the children...children..safety..oh yes, excuse me, where was I, yes, I elected to cowardly retreat and leave the assailants inside armed with knives and a pistol alone with my family while I contacted the proper authorities. its only been a few minutes since I left, how long until the police can arrive?? oh, they're all across town? 15 minutes? ... hmmm...ok, sounds good, ill be down the street retreating, if the police have any trouble locating the home, tell them to look for the big nice house with the door kicked in and listen for the screams and or gun shots that are sure to follow. Why else bring a weapon, unless you intend to use it if confronted. This story although fictional, isn't all that far away from a possible scenario. would you be willing to risk your life on theirs because a grieving family of a model citizen was shot dead while breaking in a home and trying to assualt family members decides they have a chance to sue you in civil court for killing their child who was only gonna steal your stuff, nevermind the mask, gloves,rope,duct tape,condoms...he wasn't a bad kid and didn't deserve to die.

11:46 PM  

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