What Wes Denham gets wrong about the law


Wes Denham has written article after article about Stand Your Ground. Yet, he criticizes fellow media for its "hullabaloo" over the law in his most recent column [Crime City, "Stand Your Wallet," March 12]. He further criticizes the deceased, their families and their lawyers. Let me offer some criticism of my own.

What I found when I researched Mr. Denham was that he was not a lawyer, police officer or probation officer. Even the books penned by him are ridiculed by lawyers and legal minds alike in reviews. This hardly qualifies someone in most cities to have a crime column.

Let me get to the point of my rebuttal. There were more than a dozen errors in Denham's column, starting with his description of self-defense laws and Stand Your Ground. The battleground over one's duty to retreat is not a "single sentence" and Stand Your Ground is not merely a criminal (or civil) immunity battle.

In the early 2000s, the NRA couldn't get enough money to legislators to have its agenda sufficiently passed, so the United Sportsmen of Florida (USF) was created to double up donation revenue. Awards were then given to state representatives, including Dennis Baxley, R-Ocala, the NRA's 2004 Defender of Freedom Award winner and, incidentally, the 2005 Stand Your Ground co-draftsman. The other power behind the bill was Marion Hammer, the head of both the NRA and USF. They sold fear of home invasion and rape to empower the legal gun owner to kill — few questions asked. Coincidentally, since 2005, gun manufacturers have conservatively contributed well over $40 million to the NRA. Fear sells.

This isn't an exaggeration. Backers of the bill, including father and son state Sen. Don Gaetz, R-Destin, and state Rep. Matt Gaetz, R-Shalimar, wrote: "Consider an elderly woman in a dimly lit parking lot or a college girl walking to her dorm at night. If either was attacked, her duty was to turn her back and try to flee, probably be overcome and raped or killed."

Except that is entirely untrue. The old
 law said:

"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. The 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 have avoided the need to use that force."

If there was no means to avoid confrontation consistent with your own safety, you could freely stand and "shoot, stab, bludgeon, punch, kick or bite." The elderly woman has never been required in this country to turn her back and run — ever. We did not have an epidemic of rape that this law resolved. And yet writers like Denham are allowed to insinuate that America was a nation riddled with women and children being hunted down and killed by their attackers because there was no right to "stand your ground." It's shameful. Worse yet, laws like Stand Your Ground empower prejudice.

And then there's Denham's assertion that "prosecutors, defense attorneys and police" have been "conspicuously absent" from speeches by "weeping families." Denham obviously didn't take time to even research his column at all. David LaBahn (the president and CEO of the Association of Prosecuting Attorneys), Ronald S. Sullivan Jr. (the director of the Criminal Justice Institute at Harvard Law School), Chief Scott Knight (former chair of the International Association of Chiefs of Police), and dozens and dozens of others have spoken out about Stand Your Ground and sat right next to my clients at these very hearings. I spoke not as a lawyer for the family, but as a dad. So not only do I resent Denham's statement that "weeping families" and their lawyers were the only ones who testified as utterly untrue, but it was also grossly offensive and heartless. Do not judge the family of a murdered child unless you have walked in their shoes.

Stand Your Ground has everything to do with the killing of Trayvon Martin, Jordan Davis, Chad Oulson and others, whether the immunity hearing is brought before a judge or not. The law now says anyone who is "attacked" (without bothering to define if that means physical harm or merely an attack on one's senses, through insults or less) has "no duty to retreat," even if he or she was the cause of the problem or aggressor, even if retreat is entirely reasonable, or even if everyone else in their right mind would have simply retreated. The prospective killer can "stand his or her ground and meet force with force, including deadly force." This is a standard that protects the killer all the way through the criminal trial, through the jury verdict. It is read in every self-defense case, and the state has the burden to prove the act was not in self-defense.

Finally, the 2005 law ends with one more vulgar line: It is OK to kill in self-defense if the killer "reasonably believes it is necessary" to kill. So, the judge and jury must take the killer's word — his or her "reasonable" belief — to decide if the killing was justified. This empowers prejudice and vitiates the sanctity of life. There was nothing wrong with the law before. Now, it allows anyone with a legal gun and enough sense to lie when facing life in prison to get out of jail free.

And since Denham brought it up, the immunity from civil suit applies only when criminal immunity is given. A simple not-guilty verdict does not eliminate the civil cause of action for wrongful death. Despite that, insurance carriers have exclusions for most, if not all, of these incidents. We anxiously await a case in which we can show that the civil immunity provision is unconstitutional as long as the state is the only one allowed to speak on behalf of crime victims on the issue in court. The state represents the citizens, not the victims. It is a conflict of interest, a miscarriage of justice and a violation of due process for the victims to have rights extinguished without being able to be heard. I encourage every single victim of crime to pursue private counsel options. Much of what we do in this regard is pro bono — for free — but it'd be too simple to pick up the phone and actually learn about what we do, wouldn't it?

I will end with a quotation from Abraham Lincoln: "I do not think much of a man who is not wiser today than he was yesterday." The information is out there, but the lazy man often finds it easier to keep churning out the same old lies.

John M. Phillips
The author is a local attorney who represented the family of Jordan Davis, the teenager killed by Michael Dunn.

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