Thursday, April 3, 2014
Part II: IACHR expresses concern over apparent prima facie discrimination in Stand Your Ground laws: “Stand Your Ground Laws are not only bad law, they’re biased law”
Our two-part series on the recent IACHR hearing on Stand Your Ground Laws continues today. Deena R Hurwitz, Professor of Law and Director, International Human Rights Law Clinic and Human Rights Program, University of Virginia School of Law, chronicles the conclusion of the proceedings below.
Professor Hurwitz writes:
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 by Martha Davis, “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
The United States was represented by Lawrence J. Gumbiner, Deputy U.S. Permanent Representative to the Organization of American States (OAS); Margaret Pickering, Esq, Office of the Legal Advisor, State Department; and Rachel Owen from the U.S. Mission to the OAS. Deputy Representative Gumbiner spoke briefly, explaining the Justice Department’s absence is due to the ongoing investigations. Invoking federalism, he referred to the fact that the state has jurisdiction over these laws. He did, however, call attention to Attorney General Eric H. Holder Jr’s 2013 statement condemning SYG laws, and stated that the U.S. Commission on Civil Rights will investigate the laws. See “Eric Holder Strongly Criticizes Stand Your Ground Laws, Opens Up About Trayvon Martin Case,” Huffington Post, July 16, 2013 (text of speech included), at: http://www.huffingtonpost.com/2013/07/16/eric-holder-stand-your-ground-laws_n_3606778.html; “Attorney General Eric Holder denounces ‘stand your ground’ laws,” by Manuel Roig-Franzia and Sari Horwitz, Washington Post, July 16, 2013 (“Attorney General Eric H. Holder Jr. strongly condemned “stand your ground” laws, saying the measures “senselessly expand the concept of self-defense” and may encourage “violent situations to escalate.”). In Florida, the Justice Department, Civil Rights Division and the FBI continue to “evaluate the evidence.” According to Gumbiner, “there are now no statistics on disparities in the application of SYG laws,” but the Government appreciates the statements about unintended consequences of these laws.
Gumbiner thanked the IACHR for convening the hearing and told the Petitioners that the U.S. Government values their testimony. He then ceded their remaining time to the delegation.
The panel of IACHR Commissioners was fully sympathetic to the concerns raised by the Petitioners, and genuinely moved by the presence and testimony of the parents of the two slain teens. Commissioner and Rapporteur for the United States, Felipe Gonzalez (Chile) told the audience that the Commission is well aware of how serious the problem is in this country, and that the testimony has been illustrative and informative for the Commissioners. Conscious as he is of the nature of federalism, Gonzalez asked what actions the delegation would like the federal government to take. He also asked for clarification on how SYG laws function as applied to cases of domestic violence.
IACHR President, Commissioner Rose-Marie Belle Antoine (Saint Lucia and Trinidad and Tobago) noted that SYG comes from the common law “Castle Doctrine,” or “no retreat laws,” but as a common law defense, the burden of proof is initially on the defense to prove that it applies. Here, the Commissioner said, “that is not the case; here it is a lower threshold as to when the SYG law even applies. It is, actually, a more liberal standard, particularly in relation to the right to life.” Researchers have noted this expansion of the doctrine and its implications, reporting that “Over the past few years there has been a movement at the state level to expand the Castle Doctrine. These new laws extend the right to self-defense, with no duty to retreat, to places outside the home such as a vehicle, workplace, or anywhere else a person has a right to be. Such expansions could have significant implications for public safety and the justice system’s ability to hold people accountable for violent acts.” Expansions to the Castle Doctrine, Implications for Policy and Practice, by Steven Jansen and M. Elaine Nugent-Borako, National District Attorneys Association, American Prosecutors Research Institute, available at: http://www.ndaa.org/pdf/Castle%20Doctrine.pdf
As Rapporteur on the rights of persons of African descent, Commissioner Antoine also said that the IACHR always seeks statistics on race, particularly in the criminal justice system. “It allows us to lay the groundwork for a claim of racial discrimination, using this notion of context in particular, and we have done that successfully in gender cases. Your research is very useful for us, because it does raise prima facie issues of race discrimination that are inherent in the criminal justice system, that demonstrate structural patterns. This is very important, very useful for us.” Noting that the U.S. Government had just mentioned the paucity of statistics, Commissioner Antoine made a point of acknowledging that in this particular hearing “the Petitioners have provided some important statistics, you have been doing significant research …demonstrating structural patterns, which is very helpful for us.”
“On the issue of gender,” she went on to say that one just has to read the newspapers or perhaps Facebook to know the story of Marissa Alexander. … In relations to that … it seems there are clear disparities related to women, and particularly Afro American women in relation to the application of SYG laws when it comes to domestic violence. For me it appears to be very inconsistent the way the laws are applied. In the Trayvon Martin case, for example, it’s a subjective standard in terms of just the application of the defense. Whereas in the case of Marissa Alexander and other cases like that, it seems to be very much an objective standard. So, even on that ground alone, it raises issues of inequality. I would ask what is the significance of context – I wonder what does the State have to say about that – it is a very important issue for us to consider.
In response, Meena Jagannath called on the U.S. Government to ask the U.S. Commission on Civil Rights to consider their research on the impact of SYG laws on increased homicides. “The federal government, if it has the political will, has the ability to take action at the federal level in a number of ways: it can enact commonsense gun control laws that increase the criteria for background checks and ban access to certain types of arms and ammunition. Another solution could include conditioning federal funding to local law enforcement and other such programs on the inclusion of certain minimum protections within states’ self-defense laws (for example, the elimination of SYG provisions that expand the justification of use of deadly force outside of the home without imposing a duty to retreat) or revising mandatory minimum sentencing laws.”
Niaz Kasravi said that the Urban Institute produced a study with statistics on institutional racism within the criminal justice system. She said that the SYG law essentially allows the entire state of Florida to be your “castle.”
Sybrina Fulton, Trayvon Martin’s mother spoke up again.
"As a parent, it’s very difficult to relate to a law that gives a person with a gun so much authority. … But when a 17 year old child, minor, is in a gated community simply walking from the store with no weapon, only a drink and candy, that poses a problem for me as a mother – and should pose a problem for other mothers and fathers as well. Because what it is saying to us is -- we have no clue what to tell our teenagers now. How many of our teens have to walk home from school, from the candy store, and have to worry now about someone perceiving them to be a criminal, about whether they are safe. How may parents now are concerned about their minors just making it home as they go from point A to point B. I hope I’m the voice of parents who say ‘This has to stop!’. This method of ‘shoot first and ask questions later’ – has to stop. Because our teenagers are afraid to walk in our own communities, afraid of being perceived as a criminal, of doing something wrong, when they are not. This is something we have to think about. . . . Please, please use our families’ tragedies as examples to say there has to be a better way, to end this. I’m asking, don’t wait until it happens to you to seek out like-minded people. And I feel it started here in Florida, it has to end here in Florida. Because our teenagers are afraid."
In closing, President Antoine said, “I think I speak for the entire Commission in saying that we have been very honored to host this hearing on something of such great importance. It has afforded us a significant opportunity to engage in deep reflection in a frank and open and honest way about this very important issue in the judicial system. We thank the State for coming in the spirit of cooperation and engagement, and we can offer our commitment, and the work of our rapporteurships – at least the Afro-descendants (since I am that Rapporteur) -- as you have learned they are very concerned. We offer our commitment to continue to support this dialogue, and to support a resolution that is in accord with human rights.”