How race and gender play into PA’s Stand Your Ground law
Last weekend, George Zimmerman was acquitted in the murder of unarmed teenager Trayvon Martin in Florida. People are wondering how better or worse Pennsylvania’s Stand Your Ground law is compared to its Sunshine State counterpart. Would George Zimmerman have been acquitted, or even prosecuted, here?
Technically, due to Pennsylvania’s requirement that the threatening person has to show a deadly weapon—a provision lacking in Florida’s law—and the fact that Martin was unarmed, it would seem on its face that Zimmerman would have been less likely to obtain acquittal in Pennsylvania. But as we’ll see, it’s discretion in case-by-case interpretation of the law that often matters more than the technicalities of the law itself. For example, a Pennsylvania case often cited by opponents of Stand Your Ground laws is one where the victim did not possess a weapon, yet charges were not filed against the man who shot him to death.
In January 2012—shortly after passage of Pennsylvania’s Stand Your Ground law—24-year-old Brandon Zeth was gunned down while standing on the porch of a house he mistook for his girlfriend’s, which was next door. Zeth, reportedly intoxicated, had been banging on the window asking to be let in, believing it was his girlfriend’s window. According to a local report, “The homeowner thought Zeth was an intruder and opened fire through the window with a 22-caliber gun.” Zeth was shot at least three times. Allegheny Township District Attorney Richard Consiglio issued a statement that, though “regrettable,” the homeowners’ actions were justified by law.
(PW called Consiglio’s office to discuss how his decision would have been different prior to Stand Your Ground’s expansion, but he is out of office until next week.)
Research shows that discretion works against black people. Anecdotal evidence—and Pennsylvania’s requirement for the offender to flash a weapon—demonstrates that it works against women, too.
Stand Your Ground and jury instruction
Zimmerman did not specifically invoke a Stand Your Ground defense, but the law still significantly informed the outcome.
In classic, pre-Stand Your Ground self-defense, lethal force was justified only if the shooter did not have any way to retreat from the altercation. Basically, Stand Your Ground both increases the legally justifiable opportunities to use lethal force by expanding coverage to outside of the home and by removing the “duty to retreat.” Lethal force no longer has to be used only a last resort.
Former prosecutor and Florida State Sen. Dan Gelber explains how this played out in the Zimmerman case: “If the Trayvon Martin killing was tried prior to the Stand Your Ground law being passed, the jury would have been told that self-defense was not available to Zimmerman unless he had used every reasonable means to avoid the danger. The jury would have been told that even if they believed Zimmerman had been attacked wrongfully by Trayvon, he could not use deadly force if he could have safely retreated or run away.”
Here is the actual jury instruction read to Florida juries prior to the legislature’s enactment of Stand Your Ground.
“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.”
Here is the jury instruction the Zimmerman jury heard:
“If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.”
Gelber writes that he opposed the passage of Stand Your Ground while he was in the Florida legislature “because I believed it would provide defenses to people who had created the scenarios they sought protection from.”
From Florida to Pennsylvania
Though most publications keep reporting that Florida’s passage of Stand Your Ground in 2005 was the first in the country, Utah was actually first, and Florida second. Florida’s adoption of the law is remarkable, though, because it was driven by former NRA president and chief Florida lobbyist Marion Hammer and was subsequently adopted as a model law peddled state-by-state—including to Pennsylvania—in a coordinated effort by the controversial, corporate-funded organization American Legislative Exchange Council (ALEC) on behalf of its client, the National Rifle Association.
Since then, the majority of states, 26 in all, have passed a version of the law. Pennsylvania passed the law in 2011—but not without significant revision that would have paradoxically worked for Trayvon Martin, but against women.
“The most significant difference is that in Pennsylvania, in order to quote unquote ‘stand your ground,’ the person you’re quote-unquote standing your ground against has to be displaying a deadly weapon,” says Richard Long, executive director of the Pennsylvania District Attorneys Association.
The District Attorneys Association initially opposed the law.
“We looked, and we just did not have cases of people being prosecuted for defending themselves, so we felt the law was adequate,” says Long. “Anyone legitimately defending themselves were not being prosecuted.”
As is usually the case when you pass laws that purport to fix problems that don’t exist, Stand Your Ground creates a new problem: Instead of being concerned about the unfair prosecution of people legitimately defending themselves, we need to be worried about the unfair lack of prosecution or conviction of people who aren’t legitimately defending themselves.
We also need to be worried about more murders.
Research conducted by an economist at the University of Texas A&M found that Stand Your Ground laws “do not deter burglary, robbery or aggravated assault. In contrast, they lead to a statistically significant 8 percent net increase in the number of reported murders and non-negligent manslaughters” in states that passed the legislation.
It stands to reason that if the law leads to more murders, it will also lead to more murders without prosecution or conviction—and that’s the part that depends heavily upon who you are and what you look like.
From the Frontline report:
“Roman also found that Stand Your Ground laws tend to track the existing racial disparities in homicide convictions across the U.S. — with one significant exception: Whites who kill blacks in Stand Your Ground states are far more likely to be found justified in their killings. In non-Stand Your Ground states, whites are 250 percent more likely to be found justified in killing a black person than a white person who kills another white person; in Stand Your Ground states, that number jumps to 354 percent.”
Women and guns in PA
Marissa Alexander is a black mother of three from Jacksonville, Florida. Two years ago, Alexander fired a warning shot into her kitchen ceiling while in the middle of being attacked once again by her abusive husband, Rico Gray.
Gray readily admits his history of violence with women in general and Alexander specifically. “The way I was with women . . . they had to walk on eggshells around me,” recalled Gray during his deposition, as reported by Chicago Sun-Times. “Punching women in the face, shoving them, choking them and tossing them out the door.”
Alexander was not granted the Stand Your Ground protection afforded to George Zimmerman.
Instead, she was convicted of three counts of aggravated assault “in a matter of minutes” and sentenced to 20 years in prison. Charges were filed by Angela Corey, the same prosecutor who oversaw the Zimmerman case. As Barry Scheck of the Innocent Project recently commented, “It just is the kind of case that screams out for prosecutorial discretion.”
Aside from the unpredictable and all-important factor of discretion, there’s little reason to believe that Alexander would have had a better case in Pennsylvania, where the law requires that the offender showcase a deadly weapon to justify lethal self-defensive force.
Despite the gun industry attempting to sell more guns to a relatively untapped market by urging women to rely on firearms for self-defense, Pennsylvania law is explicitly slanted to not protect them if they do so. (Not to mention, that research shows that a gun in the house is statistically more likely to be used against a woman than by her.)
While Pennsylvania law makes it harder for a woman to use a gun to justifiably defend herself against a man, the law arguably makes it easier for a batterer to kill.
“My concern at this point quite honestly with the Zimmerman verdict is that we’re not going to be emboldening people to use Pennsylvania’s law as some justification to stand your ground or more nefarious purposes,” says attorney Ellen Kramer, legislative director of Pennsylvania Coalition Against Domestic Violence. “Our concern is that in the heat of these incidents, it seems it’d be fairly easy for a batterer to claim that the lights were dim, she had her hands in her pocket, she had a hoodie on or whatever, and it looked to me like she had a gun.”
Or not, even.