Wednesday, April 2, 2014
Part I: IACHR expresses concern over apparent prima facie discrimination in Stand Your Ground laws
With today's post by Deena R Hurwitz, Professor of Law and Director, International Human Rights Law Clinic and Human Rights Program, University of Virginia School of Law, we begin a two-part series on the IACHR's recent thematic hearing on Stand Your Ground Laws.
Professor Hurwitz writes:
PART I
On March 25, the Inter-American Commission on Human Rights (IACHR) convened a thematic hearing on the impact of Stand Your Ground (SYG) laws on minorities in the United States (see blog posting, “IACHR Hears Testimony on Stand Your Ground Laws,” Tues. March 25 2014). The hearing was spearheaded by the Human Rights Clinic at the University of Miami School of Law, benefitting from the expertise of Clinic director, Professor Caroline Bettinger-Lopez in the Inter-American human rights system. It was nonetheless a team effort, and the Petitioners’ delegation included Sybrina Fulton, mother of slain teenager Trayvon Martin; Ron Davis, father of slain teenager Jordan Davis; Benjamin L. Crump, Esq, attorney representing the family of Trayvon Martin; Ahmad Abuznaid, Esq, Legal & Policy Director of Dream Defenders Inc.; Aleta Alston-Toure’ and Alisa Bierria with the Free Marissa Now Mobilization Campaign and the Center for Race & Gender, UC Berkeley; Meena Jagannath, Esq, Community Justice Project Florida Legal Services, Inc.; Professor Caroline Bettinger-López, Esq, Associate Professor of Clinical Legal Education and Director of the Human Rights Clinic at the University of Miami School of Law and Charlotte Joseph Cassel, M.P.H., University of Miami School of Law Human Rights Clinic; and NAACP representatives Lorraine C. Miller, Interim President and CEO, Hilary Shelton, Sr. Vice President for Policy & Advocacy/ Washington Bureau Director, Dr. Niaz Kasravi, Criminal Justice Director, and Derek Turner, Esq, Communications Director. A video of the hearing was posted by the NAACP at: https://www.youtube.com/watch?v=X0EV8Rbpg2s&feature=youtu.be; audio can be accessed through the IACHR’s website: http://www.oas.org/es/cidh/audiencias/TopicsList.aspx?Lang=en&Topic=18
March was a watershed month for international scrutiny of the human rights implications of SYG laws. Charlotte Cassel of the University of Miami Human Rights Clinic opened the panel noting that, in its review of U.S. compliance with its obligations as a State Party to the International Covenant on Civil & Political Rights (ICCPR), “[t]he UN Human Rights Committee repeatedly expressed concern that SYG laws in the U.S. are incompatible with the fundamental right to life. … They violate the rights to life, equality, non-discrimination, family, freedom of movement, and the rights of the child.”
Since Florida first enacted a SYG law in 2005, 34 states have adopted some form of SYG or “shoot first” laws, said Dr. Niaz Kasravi of the NAACP, “which give individuals the right to use deadly force to defend themselves without any requirement to evade or retreat from a dangerous situation. ” See Law Center to Prevent Gun Violence: http://smartgunlaws.org/stand-your-ground-policy-summary/. In addition to Florida, states with SYG laws include: Alabama, Alaska, Arizona, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, and West Virginia. Since 2005, four states have adopted similar laws, but they apply only when the shooter is in his or her car. They are: Missouri, North Dakota, Ohio, and Wisconsin. Seven additional states permit the use of deadly force in self-defense in public with no duty to retreat through a combination of statutes, judicial decisions, and/or jury instructions. They are: California, Idaho, Illinois, New Mexico, Oregon, Virginia, and Washington. These states are distinct from true “Florida-style” laws in several respects. Many of the shoot first protections established in these states may only be invoked during criminal trials, as opposed to the Florida law which enable a shooter to escape liability in a pretrial hearing. Additionally, these states do not have some of the especially onerous elements found in the Florida law, such as the provision preventing law enforcement from arresting a shooter without probable cause that the force used was unlawful. Lastly, Utah has had a “Stand Your Ground” type law on the books since 1994, but it strengthened and clarified its law to be more in line with the Florida law post-2005. (Testimony of Niaz Kasravi)
Studies show that SYG laws “much like the American criminal justice system as a whole – are carried out in a racially biased manner . . .. A study by the Urban Institute determined that in “Stand Your Ground” states, when white shooters kill black victims, 34% of the resulting homicides are deemed justifiable. When black shooters kill white victims, only 3% of the deaths are ruled justifiable.” See Do Stand Your Ground Laws Worsen Racial Disparities? John Roman: http://blog.metrotrends.org/2012/08/stand-ground-laws-worsen-racial-disparities/
What’s more, Dr. Kasravi pointed out, numerous studies have also shown that SYG laws don’t deter crime. “To the contrary, ‘justifiable homicides’ nearly doubled from 2000 to 2010 in states with “Stand Your Ground” laws, with a sharp increase after 2005, when Florida and 16 other states passed these immoral laws. The average number of so-called ‘justifiable’ homicide cases per year increased by more than 50% in the decade’s latter half. Another national study by Texas A &M University revealed that homicide rates actually increased by 7–9% in states that have passed some form of “Stand Your Ground” Laws.” See Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Expansions to Castle Doctrine Cheng Cheng and Mark Hoekstra, Texas A & M University, http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf.
The message was direct and deeply moving. As Benjamin Crump said, “Stand Your Ground is not only a bad law, it’s a biased law.”
Ron Davis spoke eloquently. “My son, Jordan Davis, was not given his human rights. SYG all over this country is trumping human rights. They take into account the fears and biases of other people - what they have in their mind – never mind that your child or loved one was unarmed.” As long as he thinks you have a weapon, then “what matters is only if it was reasonable to the shooter that he was in some kind of danger. What is reasonable? What’s reasonable to someone else may not be reasonable to me. A guy was shot in the chest for throwing popcorn at someone in a movie theater. Is that reasonable? The shooter claims it’s reasonable – he says he doesn’t know how hard popcorn can hit you in the face! He thought it was reasonable to shoot.”
The case of Marissa Alexander, an African American mother of three from Jacksonville, Florida is a tragic example of the biased application of SYG laws. Aleta Alston-Toure’ from the Free Marissa Alexander Campaign addressed what makes her case different from Trayvon’s and Jordan’s. A survivor of domestic violence, Marissa was viciously attacked by her abusive, estranged husband nine days after giving birth to her youngest daughter. She managed to fire a single warning shot into the wall, causing no injuries and succeeding in halting the attack. Although Florida’s self-defense law includes the right of domestic violence victims to “stand their ground” in their own homes, Alston-Toure’ explained that Ms. Alexander was arrested and charged with aggravated assault. After only 12 minutes of deliberation, she was convicted and sentenced to 20 years in prison, thanks to Florida’s mandatory sentencing laws. “The reason given for why Ms. Alexander was not granted SYG immunity is that the judge decided she did not feel genuine fear. This is absurd but not surprising, because research shows that courts often don’t perceive black women victims as sympathetic and credible. Instead black women are characterized as aggressive, emasculating and incapable of being victimized.”
Dream Defenders’ Legal Director, Ahmad Abuznaid, was equally unequivocal. “These laws have in a sense legalized the devaluing and dehumanizing of minority lives. … [They] amount to state complicity in the perpetuation of violence.” He too indicted SYG laws for being “discriminatory in their application as to race and gender. Even worse, blanket immunity and broad discretion to law enforcement offered by Florida-type SYG laws infringe on victims’ access to courts and their right to a remedy.” Abuznaid noted the jury’s deadlock on Jordan Davis’ murder count “exposed just how much confusion SYG have introduced into the criminal process.” What’s more, he said, “Florida and other states are currently looking at laws that would arm school teachers with guns, and I would postulate that it would not be long before one of our teachers stands their ground against one of our kids.”
The delegation addressed the federal government’s obligations to avoid the inconsistent application of SYG laws in different states. Meena Jagannath, Esq, of the Florida Legal Services called on the federal government to "evaluat[e] both the public safety implications and the uneven application of these laws that send a message that certain people’s lives matter less than others’. Clear evidence and guidance provided by the federal government through a thorough investigation is necessary in order to provide states with the data they need to properly evaluate the impact of these laws. As is illustrated by the Florida Legislature’s present swift path towards expanding its SYG law (with the blessings of the National Rifle Association), this has to be done at the federal level. A state by state, piecemeal process of evaluating the laws would ignore the greater, nationwide concerns these laws pose as to the right to life, equality before the law and victims' access to a remedy.…[T]he federal government plays a key role in fixing the structural inequities within the criminal justice system, and dealing with problems like racial stereotyping and sexism that produce unjust results. The U.S. Government cannot hide behind federalism as a way to ignore its obligations under international human rights law. It is critically important to come up with solutions that challenge the federalism problem by using tools available to the federal government to help ensure that states’ policies do not violate fundamental human rights."
Jagannath mentioned Attorney General Eric H. Holder Jr’s 2013 statement strongly condemning SYG laws, saying the measures “senselessly expand the concept of self-defense” and may encourage “violent situations to escalate.” (Washington Post, July 10, 2013 ) She expressed appreciation to Holder for “tak[ing] an important first step on rolling back mandatory minimum sentencing laws by declaring them ‘draconian’ and the cause of ‘shameful’ racial disparities, as well as announcing a change in the Department of Justice’s position on sentencing for certain nonviolent offenses. States should follow suit,” she concluded.
Part II will follow tomorrow.
https://lawprofessors.typepad.com/human_rights/2014/04/iachr-expresses-concern-over-apparent-prima-facie-discrimination-in-stand-your-ground-laws.html
