Where Do We Stand on Stand Your Ground?

Christopher James 4/16/2014

I. Introduction

The Stand Your Ground law exists in some form in more than

half of the states which make up our nation. Within the past two

years, these laws have come under national scrutiny because they

result in otherwise avoidable deaths. Particularly, the cases of

George Zimmerman and more recently, Michael Dunn have sparked

national debate about the merit of having these laws on the

books. In fact, it can be argued that Stand Your Ground laws are

being used to allow everyday or otherwise privileged citizens

the same type of legal immunity (or at least unwillingness at

worst and reluctance at best, by juries, to convict) that the

police typically receive in police brutality and/or excessive

force cases against young persons of color.

One explanation for this seems to be that there is a long-

held tradition in this country of characterizing the actions of

African-Americans as sinister, menacing, or threatening when

similar – or for all intents and purposes, identical – actions by

their white counterparts are characterized as innocent or at

least, less severe. It is important to note that this tradition

is not merely a social one, nor is it limited to mainstream

media. On the contrary, the tradition is practiced in law

enforcement and even in our very judicial system – by some judges

themselves, no less – who are, statistically, more likely to

sentence black offenders to mandatory minimums than their white

counterparts for similar crimes, as at least one study has

shown1.

This paper discusses what the Stand Your Ground laws and the

Castle Doctrine are and which states have passed versions of

these laws before reviewing a few of the more noteworthy and

well-covered cases in recent years, with specific attention to

three cases (those of George Zimmerman, Michael Dunn, and Marissa

Alexander) in the state of Florida. The outcomes in these cases

will then be compared to police brutality cases (including those

1 Bruce Drake, Incarceration gap widens between blacks and whites, Pew Research Center,

(Sept. 6, 2013),

http://www.pewresearch.org/fact-tank/2013/09/06/incarceration-gap-between-

whites-and-blacks-widens/

of Sean Bell, Oscar Grant, Amadou Diallo, and Rodney King) in an

attempt to test the assertion that the protection given to

private citizens under Stand Your Ground is similar to the

deference and credibility afforded to law enforcement officers

even in some of the most egregious circumstances. Finally, the

discussion will turn to the tradition of race-based

characterization, mentioned above, which contributes to these

legally justified acts of violence primarily against young black

men.

II. The Stand Your Ground Law

In order to fully understand the Stand Your Ground Law, it

is necessary to begin by discussing the Castle doctrine. In

murder cases, if the defendant claims self-defense as a

justification for use of deadly force, there is a general duty to

retreat imposed upon them. That is, if the evidence shows that

the defendant had an opportunity to flee from the victim against

whom he sought to defend himself at the time of the murder, the

self-defense claim will typically fail. Based on this rule, many

who claim self-defense against a person with a history of

violence (for instance, in a domestic violence context which

leads to a death) have been convicted of murder and imprisoned.

The Castle doctrine, based on the maxim that a person’s home

is that person’s castle, alleviates the duty to retreat.

Alternatively stated, the Castle doctrine grants the privilege of

non-retreat when a person is attacked or threatened in his or her

home. The rationale for this doctrine is that no duty can be

imposed on a person to retreat from his own home because his home

offers him the safety which is the purpose of retreat in the

first place2. Thus, if unlawfully attacked in one’s home, a

person may use deadly force to protect himself and his ‘castle.’

The doctrine actually goes beyond ones home to include a person’s

yard or private office, but is distinctive in that the exception

to the duty to retreat is limited to a citizen’s real property.

Many legislatures have determined that eliminating the duty to

retreat should not only apply to personal property. It is these

laws - which allow citizens to use deadly force anywhere,

regardless of whether they are on their personal property, with 2 Wyatt Holiday, The Answer To Criminal Aggression is Retaliation: Stand-Your-

Ground Laws and the Liberalization of Self-Defense, 43 U. Tol. L. Rev. 407,

408-409 (2012).

absolutely no duty to retreat3 – that are typically referred to

as Stand Your Ground Laws. Somewhat similarly, in Oklahoma and

Colorado, there are laws known as “Make My Day” laws (based on

the phrase popularized by Sudden Impact star Clint Eastwood: “Go

ahead, make my day”) which grant complete immunity to homeowners

to use deadly force inside their homes against intrusions.4

Stand Your Ground Laws which generally appear as explained

above have been adopted in an expansive plurality of states.

Twenty-four states, specifically Alabama, Alaska, Arizona,

Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan,

Mississippi, Montana, Nevada, New Hampshire, North Carolina,

Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee,

Texas, Utah, and West Virginia have passed stand your ground

3 States That Have Stand Your Ground Laws, FindLaw,

http://criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-

ground-laws.html, (last visited March 12, 2014)

4 David Olinger, Colorado gun laws afford rights to those shooting in self-defense,

DenverPost.com, (July 30, 2013, 12:01 AM),

http://www.denverpost.com/news/ci_23756639/colorado-gun-laws-afford-rights-

those-shooting-self.html

laws5. Several other states have passed expanded castle doctrine

statutes which extend beyond the real property limitation and may

include a citizen’s personal vehicles. The Stand Your Ground law,

when invoked, generally leads to a pre-trial hearing on which a

judge decides whether, based on the facts, the Stand Your Ground

law applies. If the judge determines that it does apply, the

defendant defeats prosecution and no criminal or civil trial may

proceed.

III. Stand Your Ground Cases

Despite the exhaustive list of states in the first section

which have passed a Stand Your Ground law, it is the state of

Florida which has garnered the most national and even worldwide

media attention for its cases. Specifically, the George

Zimmerman, Michael Dunn, and Marissa Alexander cases have all

been the subjects of much national debate, controversy, and even

5 States That Have Stand Your Ground Laws, FindLaw,

http://criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-

ground-laws.html, (last visited March 12, 2014)

protest. Those three cases specifically have garnered such

intense public reaction because of the racial issues in play, the

disparity between outcomes, and what many consider to be the

strikingly unjust official court decisions in them. It is for

these purposes that they serve as the perfect backdrop for the

discussion of how Stand Your Ground laws disproportionately allow

regular citizens the same immunity from prosecution, hung juries,

failures by juries to convict, or relatively light sentences that

police typically receive in police brutality cases. However, it

is important to note that two of the three cases – specifically,

the George Zimmerman and Michael Dunn trials - despite their

Stand Your Ground coverage, are not actually Stand Your Ground

trials because in both cases the defendants waived their rights

to Stand Your Ground hearings and chose instead to defend

themselves on self-defense grounds.

i) The Trayvon Martin – George Zimmerman Case

On February 26, 2012, 17 year-old Trayvon Benjamin Martin,

an African-American was shot by George Zimmerman, a Hispanic-

American, after a confrontation in Zimmerman’s neighborhood.

Martin had been visiting his father in Sanford, Florida after

receiving a ten-day suspension from school for marijuana residue

found in his backpack. Leading up to the confrontation and

shooting, Martin had walked from his father’s home to a nearby

store where he purchased an Arizona Iced Tea and a pack of

Skittles candy and was making a return trip. George Zimmerman, a

neighborhood watch captain in Sanford, called police to report a

suspicious person in the neighborhood. Zimmerman was instructed

by police not to get out of his vehicle or approach Martin. He

disregarded these instructions believing that Martin was there to

commit some sort of crime. Zimmerman had described Martin’s

behavior, walking down the streets and looking at the houses, as

‘casing houses’ as a number of robberies involving young Black

men had occurred in the neighborhood.6

Some time after exiting his vehicle, a physical

confrontation between Martin and Zimmerman ensued. Eyewitnesses

state that Martin was on top of Zimmerman and that he seemed to

be getting the better of Zimmerman during the fight. Zimmerman

6 Trayvon Martin Shooting Fast Facts (Feb. 22, 2014),

http://www.cnn.com/2013/06/05/us/trayvon-martin-shooting-fast-facts/

took out his pistol while Martin was on top of him and shot him

once in the chest. Officers reported that Zimmerman suffered a

broken nose and was bleeding from the back of the head. Weeks

later, police reported that he had not been charged because there

were no grounds to dispute his version of the events.

Nearly two months after Trayvon Martin’s death, and only

after a series of nationwide protests and clamoring for the

filing of charges against George Zimmerman, the state charged him

with second-degree murder. He pleaded not guilty and asserted

that he killed Martin in self-defense. Zimmerman later waived his

right to a Stand Your Ground pretrial hearing, during which a

judge would have determined whether or not his actions were

protected under the stand your ground law. At the end of his

trial, the jury – after considering the options of second-degree

murder, manslaughter, and not guilty – acquitted him. The jury

was instructed that they could only convict if they felt that

Zimmerman did not reasonably fear for his life at the time he

fired the weapon. A number of jurors who spoke publicly after the

trial cite this as a contributing factor in the verdict they

reached.

ii) The Jordan Davis – Michael Dunn Case

On November 23, 2012, in Jacksonville, Florida, a car in

which 17 year-old Jordan Davis, an African-American, was a

passenger pulled into a gas station next to a vehicle which

belonged to 47 year-old Michael Dunn, a white man. The driver of

the vehicle went inside to make a purchase, meanwhile the car was

playing very loud, bass-heavy rap music which irritated Dunn and

prompted him to ask that it be turned down. While one of the

passengers initially agreed, Davis argued to play the music at

its original volume. This prompted the confrontation between

Davis and Dunn, who began arguing with each other. Dunn testified

that Davis opened his door and pointed a shotgun at him, although

no weapon was ever recovered, other passengers in the car note

that the child lock was set and Davis could not open his door,

and Dunn’s own girlfriend stated that he never mentioned anything

about a shotgun to her7.

7 Greg Botelho, Steve Almasy and Sunny Hostin, Dunn convicted of attempted murder;

hung jury on murder in ‘loud music’ trial, (Feb. 17, 2014),

http://www.cnn.com/2014/02/16/justice/florida-loud-music-trial/

Dunn was charged upon apprehension and, much like the

Trayvon Martin case, did not actually invoke the Stand Your

Ground law, although according to Jordan Davis’s father, Ron

Davis, the jury instructions did allow him to benefit from that

law and its implications8. After more than thirty hours of

deliberation, the jury convicted Michael Dunn on three counts of

attempted murder for firing into the vehicle as it sped away, but

failed to reach an agreement on the one count of first-degree

murder for the actual shooting of Jordan Davis. Each attempted

murder count carries a maximum sentence of twenty years, but

Michael Dunn will be retried on the count of first-degree murder.

In response to this verdict, award-winning Jacksonville-

based journalist Tonyaa Weathersbee wrote an op-ed piece in which

she called Michael Dunn’s conviction on the lesser charges “a

hollow victory.” “It's hollow,” she explained, “because it means

that, in 21st century America, the notion that a mouthy young

black male could be a threat carries more weight with some people

than the fact that an impulsive middle-aged white man could be a

8 Video, Ron Davis Interview, Power1051.com (Feb. 24, 2014),

http://www.power1051fm.com/pages/onair/breakfast-club/#24379407

liar.” She went on to say that “apparently someone on the Dunn

jury… believed that Davis' cursing at Dunn and arguing over the

volume of his music equaled a serious enough threat to make Dunn

reasonably fear for his life.”

iii) Marissa Alexander

In contrast to both the George Zimmerman and Michael Dunn

cases, consider the case of Marissa Alexander, an African-

American woman. Alexander, a few days after giving birth, was

confronted by her estranged husband, Rico Gray, who accused her

of cheating on him and questioned the paternity of the baby.

Alexander locked herself in the bathroom but her husband

eventually broke it down, and shoved her to the floor. After he

threatened to kill her, Alexander fired a warning shot which went

into the wall near her estranged husband and his children, who

had come to her home with him9.

No one was injured by the warning shot, but Alexander was

tried and convicted on three counts of aggravated assault with a 9 Mitch Stacy, Marissa Alexander Gets 20 Years For Firing Warning Shot, (May 19, 2012),

http://www.huffingtonpost.com/2012/05/19/marissa-alexander-gets-

20_n_1530035.html

deadly weapon and sentenced to twenty years. The conviction was

thrown out on a finding of judicial error and now the case is

scheduled for retrial. Alexander, who sought and was denied any

Stand Your Ground protection in the first trial, will seek to

invoke Stand Your Ground again and faces up to 60 years, as the

prosecutor has stated that she plans to ask that the sentences

run consecutively this time, instead of concurrently, as the

original sentences did.

IV. Police Brutality Cases

Similar to the Stand Your Ground cases, many law enforcement

officers have invoked fear or threat of violence by a person they

have approached or apprehended as a means of justifying the use

of deadly force. Many of these officers, if charged, are

acquitted, and many others receive relatively light sentences.

The similarities between these cases, including a lack of

explanation or evidence substantiating the claim that the

officers reasonably feared for their safety bolsters the claim

that Stand Your Ground affords to private citizens a protection

or failure to prosecute from which the police have benefitted in

many brutality cases over the past twenty years. It is worth

noting that the refusal of jurors to prosecute police in these

cases bears some resemblance to the refusals of juries to

prosecute white civil rights era killers such as Edgar Ray Killen

and Byron De La Beckwith who killed black and white civil rights

workers and were acquitted on their initial trials. Both men were

convicted two to three decades later. While there are countless

police brutality cases worth mentioning here, this paper will

focus on Rodney King, Amadou Diallo, Sean Bell, Oscar Grant, and

the New Orleans cases.

i) Rodney King

On March 3, 1991, 26 year-old Rodney King, an African-

American, led the police on a high speed chase through the

streets of Los Angeles. His speed ranged from 55 to 80 miles per

hour over the course of the chase. Once the chase ended in a

residential area, King and his two passengers were ordered out of

the vehicle. While the other two passengers complied, King did

not and instead proceeded to taunt the officers. As multiple

officers attempted to swarm him, King resisted them and attempted

to free himself. The officers later testified that they believed

he was on PCP, the effects of which are said to temporarily

increase strength and aggression. It was later discovered that

King tested negative for the drug.10

King was tasered numerous times and badly beaten and bruised

by police officers, who struck him repeatedly with their batons,

including multiple blows to his head. He struggled to get up on

several occasions, until police were ordered by LAPD Sergeant

Stacey Koon to “hit his joints, hit his wrists, hit his elbows,

hit his knees, hit his ankles11.” King was hit with batons some

56 times and dragged to the side of the road on his stomach to

wait for an ambulance. He also reported the use of racial

epithets during the beating. Some of the incident was videotaped

by a neighboring man sparking national outrage, and even the LAPD

Independent Report points out that there probably would have

never been an investigation had there been no such video tape.

10Doug Linder, An Account of the Los Angeles Police Officers’ Trials (The

Rodney King Beating Case), (2001),

http://law2.umkc.edu/faculty/projects/ftrials/lapd/lapdaccount.html

11 Id.

The investigation led to a full-scale prosecution of

officers Stacey Koon, Laurence Powell, Timothy Wind, and Theodore

Briseno but that prosecution, at least on the state level, may

well have been doomed from the start when one considers the

makeup of the jury. In his paper An Account of the Los Angeles

Police Officers’ Trials (The Rodney King Beating Case),

University of Missouri-Kansas City law professor Doug Linder

details the selection and makeup of the jury.

“Both sides understood that jury selection could be critical

to the trial outcome.  The prosecution would have loved to

seat some blacks--who tend to be skeptical of police

practices--, but the jury pool of 260 people included only a

half dozen African Americans--and five of those had no

interest in serving on a jury in what they considered

hostile territory. Michael Stone, attorney for Officer

Powell, used a peremptory challenge to strike the one black

to make it to the jury box.  Even more troubling for the

prosecution, all the potential jurors seemed to be very pro-

law enforcement.  Two jurors were N.R.A. members.  Two other

jurors were retired military veterans. Terry White, chief

prosecutor in the case and an African-American, complained

that "everyone seemed very pro-police; they all seemed to

come from the same background."  White later recalled

thinking "we were going to lose this case." Jo-Ann

Dimitrius, jury consultant for the defense, was

understandably delighted with the final twelve.  She called

it "a gem of a jury."12

After seven days of deliberation, the jury returned a verdict

acquitting all four police officers on trial, which directly

influenced the 1992 Los Angeles riots. The following year,

charges were filed against the officers in federal court. Those

charges led to the convictions of two of the four officers,

Stacey Koon and Laurence Powell. Both men were sentenced to

thirty months in federal correction camps13.

ii) Amadou Diallo

At about 12:40 am on February 4, 1999, Guinean immigrant

Amadou Diallo had returned home from a late dinner. Diallo,

12 Id.

13 Id.

described by most accounts as quiet, friendly 22 year-old street

merchant who sent money back home to his parents, whom still

lived in Guinea. Four plain clothes officers, Kenneth Boss, Sean

Carroll, Edward McMellon, and Richard Murphy, passed by Diallo in

an unmarked Ford Taurus and immediately thought he fit the

description of a suspected armed serial rapist believed to be at

large in the area. The serial rapist had been implicated in the

rape or attempted rape of more than 51 victims14.

According to the officers, who were in the now-defunct

Street Crimes Unit, they identified themselves loudly at NYPD and

ordered Diallo to stop and show his hands. They claim that when

they gave those commands, Diallo ran up the stairs of his stoop.

Due to the lighting, the officers could only see a silhouette of

him. Diallo reached for and pulled out his wallet, which the

police officers mistook for a gun. After one of the officers

yelled “Gun!” the police opened fire on Diallo, shooting 41

rounds, 19 of which went into his body. To make matters worse,

14 Michael Cooper, Officers in Bronx Fire 41 Shots, And an Unarmed Man Is Killed,

http://www.nytimes.com/1999/02/05/nyregion/officers-in-bronx-fire-41-shots-

and-an-unarmed-man-is-killed.html?src=pm&pagewanted=1 (Feb. 5, 1999),

Officer McMellon lost his balance during the encounter, causing

the other police officers to believe he had been shot by Diallo.

After Diallo’s death, it became clear that he had no weapons

on him whatsoever and that what he had pulled out of his pocket

was his wallet. He also had no criminal history whatsoever, not

so much as a run-in with the police before the events which

caused his death. Furthermore, as the Socialist Labor Party

points out, the officers who say that Diallo looked a lot like

the suspected serial rapist are the same ones who acknowledge

that the lighting in the area was dim and that they could not see

him well.15 This suggests that the officers saw or could make out

the race of the man they were looking for (in this case a black

African immigrant), and were willing to overzealously pursue a

man they just happened upon on the street based on that alone.

Furthermore, there were no drugs or alcohol in Diallo’s system at

the time of his death. Also, the trajectory of some of the

bullets is notably upward, suggesting that Diallo was already

down or at least falling down while some of the shots were being

15 The Death of Amadou Diallo, Socialist Labor Party,

http://www.slp.org/res_state_htm/amadou_diallo00.html (2000)

fired. This indicates that it should have been clear to the

police officers as they continued to fire that Diallo was no

threat and that he could not cause them any harm – which should

have ended the shooting. Charges were brought against the four

police officers involved in the case and unlike the Rodney King

jury, this jury was comprised of four African-Americans and eight

whites.16 After three days of deliberation, this jury returned a

verdict acquitting all the officers.17

iii) Sean Bell

On November 25, 2006, 23 year-old Sean Bell, an African-

American, was leaving a gentleman’s club in Queens, New York,

where he had been celebrating his bachelor party. Bell was to be

married several hours later that same day. As he left the club,

police claim that there was a dispute between one of Bell’s

friends, Joseph Guzman, and another patron. This fight is alleged

to have escalated to the point that Guzman could be heard saying

16 Jane Fritsch, The Diallo Verdict: The Overview; The New York Times, (Feb. 26, 2000)

http://www.nytimes.com/2000/02/26/nyregion/diallo-verdict-overview-4-officers-

diallo-shooting-are-acquitted-all-charges.html

17 Id.

“Yo, get my gun.”18 An African-American plainclothes police

officer, Gescard Isnora, overheard this and followed the men to

their vehicle, calling for backup. As the men attempted to leave,

Isnora claims that he flashed a badge and demanded the vehicle to

stop. Bell continued to drive without complying, and struck the

Isnora with the vehicle. Isnora claims that he saw Guzman reach

for what he believed was a gun. He issued an alert to his fellow

officers, and it is at that point that the officers began firing

rounds into the vehicle. This version of facts is disputed, as

Guzman maintains that the officers began shooting as soon as they

left their cars without identifying themselves or giving any

warning whatsoever.

The officers fired 50 rounds into the vehicle, hitting Bell,

Guzman, and Trent Benefield, another of Bell’s friends who was

also in the car at the time of the shooting. Both Guzman and

Benefield sustained multiple bullet wounds but survived while

Bell was killed. Guzman was shot 19 times, Bell was shot four

times, and Benefield was shot three times. Officer Isnora later

18 William K. Rashbaum and Al Baker, 50 Bullets, One Dead, and Many Questions,The New York Times, (Dec. 11, 2006), http://www.nytimes.com/2006/12/11/nyregion/11shoot.html?_r=0

claimed that there was a fourth man in the vehicle at the time of

the shooting who fled the scene and may have taken the weapon

with him. However, critics note that there was no mention of a

fourth man until much later in the investigation, that there was

no evidence that the police were looking for any suspects who had

fled the scene, and that none of the eyewitnesses had mentioned

anything about any passengers running away from the scene of the

shooting. It is likely that the fourth man was made up to attempt

to justify the shooting. According to the head of the police

detectives union at that time, a janitor who witnessed the

shooting said that he saw a man fleeing the scene who had fired

at the officers at least once. However, ballistics evidence later

showed that the officers’ guns were the only ones fired at the

scene19.

While there were five officers involved at the shooting,

only three of them – Gescard Isnora, Michael Oliver, and Marc

Cooper - were brought up on criminal charges. Isnora and Oliver

19 Surprise Witness Testifies Before Grand Jury In Bell Case, NY1 News, (March

15, 2007, 9:49 AM), http://www.ny1.com/content/news/67693/surprise-witness-

testifies-before-grand-jury-in-bell-case-

were both charged with manslaughter, reckless endangerment, and

assault. Cooper was charged with two counts of reckless

endangerment20. After trying unsuccessfully to obtain a change of

venue from the court, the men chose to waive their right to a

jury trial and instead submit to a bench trial. All three men

were acquitted, but they were forced to resign years later on

March 24, 2012.

iv) Oscar Grant

On January 1, 2009, 22 year-old Oscar Grant, an African-

American, was returning home on the BART (Bay Area Rapid Transit)

system from a fireworks display and New Year’s Eve celebration in

San Francisco. Grant was with friends when a fight broke out on

one of the cars of the BART train. Officers responding to the

disturbance removed Grant and some of his friends from the train

20 Ellen Barry and Colin Moynihan, Three Detectives Plead Not Guilty in 50-

Shot Killing, (March 20, 2007),

http://www.nytimes.com/2007/03/20/nyregion/20cops.html

and began arresting them, much to the chagrin of the passengers

on the train. The officers can be seen using unnecessary force on

the men, causing many of the onlookers to verbally protest the

aggression with which the BART police dealt with them. In several

cell phone videos taken at the scene of the incident, Grant can

be seen lying face-first on the ground with an officer kneeling

near him. While he was lying there, officer Johannes Mehserle,

unable to handcuff grant, decided to tase him. However, instead

of reaching for and firing his taser, Mehserle fired his gun,

shooting Grant in the back. The bullet then ricocheted back into

Grant’s torso, puncturing his lung, and he was pronounced dead

the next morning.21

Footage of the incident prompted outrage and rioting, and

overall unrest in California’s Bay Area. Johannes Mehserle

resigned and was charged with second degree murder. The judge had

been asked by Mehserle’s attorney to reconsider the charge and/or

limit the jury instructions because Mehserle did not have the

intent required to prove murder. The judge found that Mehserle’s

later statements that he feared Grant was armed and the fact that

21 Fruitvale Station (The Weinstein Company 2013).

he fired with both hands instead of using one, which is customary

to use of a Taser, suggested that he may have had intent to shoot

Grant with a firearm. After deliberation for six and a half hours

over the course of two days, Mehserle was found guilty of

involuntary manslaughter with a gun enhancement that could have

added ten years to his sentence. However, at his sentencing

hearing, the judge overturned the gun enhancement and sentenced

Mehserle to two years and gave him double credit for the 146 days

of time served, reducing his sentence by nearly half22.

v) The New Orleans Cases

I would be remiss at this point not to discuss the police

brutality cases that have come out of the city of New Orleans

itself, particularly those that took place during the aftermath

of Hurricane Katrina, when the city and its people were the most

vulnerable. While there are a number of police brutality cases

that took place while much of the city was in distress, I will

focus specifically on the Danziger Bridge and Henry Glover cases.

22 Brett Myers, Mehserle Sentenced to 2 Years, (Nov. 5, 2010)

http://www.huffingtonpost.com/youth-radio-youth-media-international/mehserle-

sentenced-to-2-y_b_779702.html

On September 4, 2005, six days after Hurricane Katrina

touched down in New Orleans and caused severe damage and

devastation to the city, NOPD officers received a call about

shots having been fired in the area. Several officers responded

to the call, including Sgt. Kenneth Bowen, Sgt. Robert Gisevius,

Officer Anthony Villavaso, and Officer Robert Faulcon, who

arrived in a Budget rental truck. Two of these officers were

African-American Once at the scene, the officers began firing at

the Bartholomews, an African-American family returning from a

trip to find some groceries. The Bartholomews hid behind a

concrete barrier where they took cover from the shots, but family

friend James Brissette, who was seventeen years old, was killed

in the shooting. Neither Brissette nor the Bartholomews were

armed23.

Ronald and Lance Madison, two brothers who were at the scene

of the shooting, began fleeing on foot but were pursued down the

23 Brendan McCarthy, Judge imposes stiff sentences on 5 NOPD officers

convicted in Danziger shootings, (Apr. 4, 2012, 11:00 PM) Times-Picayune,

http://www.nola.com/crime/index.ssf/2012/04/judge_imposes_sentences_on_5_n.htm

l

bridge by two of the officers who were in an unmarked police car.

Ronald, who was developmentally challenged, was shot in the back

with a shotgun. He later died from his injuries, while Lance was

taken into custody and accused of attempted murder of the

officers. Similar to the Bartholomews, neither Ronald nor Lance

was armed. It was later discovered that the gunshots heard were

from trapped residents who were attempting to get the attention

of rescuers24.

The police would go on to cover up the shootings and to make

them appear justified, falsely claiming that they had been fired

upon and that they were forced to return fire. Many supervising

officers and others placed in charge of the investigation were

implicated in the cover-up attempt, having decided to try to help

the officers rather than to discover the truth. The officers

involved in the shooting were indicted in 2007, but their

indictments were dismissed in 2008 due to prosecutorial

misconduct. The investigation of the cover-up led to several

guilty pleas of those involved, which also led to the discovery

24 Associated Press, New Orleans cops cleared in bridge shooting, (Aug. 13,

2008), NBCNews.com, http://www.nbcnews.com/id/26183739/#.U07d3rEo4dU

of key evidence and witnesses against the officers involved in

the shootings, who were indicted again in 2010. In 2011, having

been found guilty of the charges they faced, the officers were

sentenced to prison terms ranging in duration from six years to

65 years. However, due to prosecutorial misconduct, those

convictions and sentences have been vacated and a new trial has

been ordered. 25

On September 2, 2005, 31 year-old Henry Glover, an African-

American resident of New Orleans, went to a strip mall with a

friend, Bernard Calloway. By some reports, Glover had gone to the

strip mall looking for baby clothing. He was spotted by Officer

David Warren, who claims that he was guarding a police substation

at the strip mall when he saw the two men approaching in what he

says appeared to be a stolen truck. He claims that Glover and

Calloway ran toward a gate that would give them access to the

building and that he commanded them to stop. He further claims

25 Judge orders new trial for 5 convicted in Danziger Bridge killings, (Sep.

17, 2013), WDSU News, http://www.wdsu.com/news/local-news/new-orleans/judge-

orders-new-trial-for-5-convicted-in-danziger-bridge-killings/

21978160#ixzz2z54YdaEC

that he thought he saw a gun in Glover’s hand just before he shot

him from a balcony on the second floor of the building26.

Officer Linda Howard, who was on duty with Officer Warren as

his partner, says that there was no gun in Glover’s hand, and

that neither of the men posed a threat27. Calloway says that

Glover was leaning up against the truck, smoking a cigarette when

he was shot in the back. After he was shot, a passerby, William

Tanner, picked up both men and Edward King, Donald’s brother, and

drove them to a nearby school which was functioning as police

headquarters for the SWAT team since the storm. Tanner and

Calloway say that they were handcuffed and beaten by the

officers, who disregarded Glover’s condition. Officer Gregory

McRae then drove the car to a nearby levee and burned it with

Glover’s body inside. McRae claims that he did this because he

was tired of seeing rotten bodies decay out in the open, but

26 Michael Kunzelman, 3 New Orleans Police Convicted In Post-Katrina Killing,

Burning Of Body, HuffingtonPost.com,

http://www.huffingtonpost.com/2010/12/09/3-nopd-convicted-henry-

glover_n_794782.html

27 Id.

another officer claims to have seen and heard McRae laughing as

he watched Glover’s body burn inside the car.

Amidst a conviction of another officer for falsifying

reports of what had occurred, a jury convicted Officer Warren of

manslaughter and Officer McRae of obstruction of justice and

violation of civil rights. On March 31, 2011, the officers were

sentenced to 25 years and 17 years and three months in federal

prison, respectively. The Fifth Circuit Court of Appeals vacated

both felony convictions of Warren and two of the convictions

against Officer McRae, holding that the two trials should have

been conducted separately. A new trial was held for Officer

Warren on December 11, 2013 and the jury fully acquitted him28.

V. Patriarchal Tradition of Adverse Treatment Concerning

“Otherness”

The fear of what we do not understand, the mischaracterization

of strange people, cultures, customs, and practices as wrong,

28 John Simerman, Jury acquits former NOPD officer in 2005 shooting of Henry

Glover, (Dec. 15, 2013), New Orleans Advocate,

http://www.theneworleansadvocate.com/home/7820262-172/jury-asks-questions-

keeps-deliberating

inferior, sinister, or threatening is not a new phenomenon in our

American society. On the contrary, this cursed tradition has

existed for longer than our nation itself. It is common knowledge

that many of the Founding Fathers of this nation - who helped to

draft, sign, and ratify the Declaration of Independence, complete

with its most popular phrase, “we hold these truths to be self-

evident that all men are created equal” – owned African-Americans

as slaves and obviously believed that the truths of which they

wrote and spoke did not apply to their human property.

Furthermore, the stereotype of African-Americans as

aggressive, dangerous, and threatening is a part of this

tradition. The concept of otherness – that is, being foreign or

different - and a disparate treatment of those characterized as

‘other’ by the majority culture is the foundation of this

tradition. While most of the cases synopsized in this paper

detail the actions of juries and police officers, it is important

to note that this phenomenon is not specific to laypersons or

overzealous police. It is also very much a judicial and

legislative tradition, as the judicial and legislative branches

of our government are institutions in which many tradition-based

decisions, including that of otherness, have been normalized.

It is common knowledge that there is a severe racial disparity

in incarceration rates. Statistically, while the population in

the United States is roughly 316 million, and African-Americans

make up about thirteen percent of that population,29 the NAACP

reports that nearly one half of all the inmates in the country (1

million of the 2.3 million currently incarcerated to be exact)

are African-Americans30. The report goes on to point out that

about five times as many whites as African-Americans are drug

users, but African-Americans are incarcerated at ten times the

rate of whites for drug offenses. Based on those numbers, it

stands to reason that the incarceration rates of African-

Americans in this country do not say nearly as much about

African-Americans or African-American culture as it says about

29 USA Quick Facts from the US Census Bureau, (March 27, 2014),

http://quickfacts.census.gov/qfd/states/00000.html

30 Criminal Justice Fact Sheet, NAACP, http://www.naacp.org/pages/criminal-

justice-fact-sheet, (last visited April 14, 2014)

the people and culture largely behind our laws, police methods,

and judicial interpretation.

Beyond the implication of judges in the sentencing which

creates this disparity, consider how the courts have interpreted

and decided on racial disparities in sentencing guidelines and

statutes which blatantly and disproportionately affect African-

Americans (also bear in mind the judicial decisions in each of

the case summaries above). For instance, in United States v.

Clary – a case which could well be used as an example of

legislative and judicial bias behind the types of laws and

sentences which adversely affect African-Americans - the Eighth

Circuit held that the 100 to 1 sentencing disparity between crack

cocaine sentences and powder cocaine sentences which persisted at

that time did not deprive African-Americans of equal

protection31. The case arose from proceedings below in the United

States District Court for the Eastern District of Missouri, which

declined to impose a ten-year mandatory minimum sentence upon

defendant Edward James Clary for possession of cocaine base with

intent to distribute. The District Court had held that the 100 to

31 United States v. Clary, 34 F.3d 709 (8th Cir. 1994)

1 ration for crack cocaine vs. powder cocaine violated the Equal

Protection Clause and denounced the selective prosecution of

crack cases on the basis of race as unconstitutional.32

However, the Eighth Circuit questioned the lower court on many

counts, including the conclusion that media-created stereotypes

of crack dealers influenced the racial perceptions held by

legislators regarding the crack epidemic. While acknowledging

that the placement of newspaper and magazine articles in the

Congressional Record suggested that some legislators were

affected by those stereotypes, the Eighth Circuit did not view

this as significant enough to determine that there was evidence

of a race-based motive or intent in passing the legislation.

Furthermore, the record cites testimony that “members of Congress

did not have racial animus, but rather “racial consciousness,” an

awareness that the “problem in the inner cities … was about to

explode into the white part of the country33” and also

acknowledges that Congress was aware that crack was used

primarily by minorities. Finally, although much of the medical

32 Id. at 710

33Id . at 714

information provided before the Senate about the differences in

properties between powder cocaine and crack cocaine is now

disputed after additional research was found not to establish

discriminatory intent or a lack of adequate support for Congress’

legislative decision. The sentencing disparity has since been

reduced to 18 to 1 due to the enactment of the Fair Sentencing

Act of 2010, but still shows a reluctance by our nation’s

legislators to create complete parity between powder cocaine

crimes, which are stereotypically more associated with affluent

whites, and crack cocaine crimes, which are stereotypically more

associated with African-Americans (despite the fact that public

health data suggests that two-thirds of crack cocaine users in

the United States are White or Hispanic34).

VI. Conclusion

In the years between the many cases referred to in this paper,

several other similar stories have made their way to our

consciousness. Aiyana Stanley-Jones, a six year old girl in

Detroit was shot by a police officer during a raid. Jonathan

Ferrell, a Division-1 football player, was shot ten times by an

34 Id.

officer while seeking help after a car accident. Renisha McBride,

a 19 year-old woman, was shot less than 2 feet from the homeowner

who shot her, citing his fear of the young lady. The victim in

all three of those relatively recent cases was African-American.

The assailant in all three of those cases was white. Of course,

all of these cases have their respective disputes and

controversies about how the decedents acted in the moments

leading up to these shootings, whether or not the fear was

justified, and so on, but the fact still remains: young African-

Americans, whom our society has a long history of depicting as

violent and threatening, are at a severe disadvantage because of

the stigma.

In the introduction, it was stated that the objective of this

paper was to note the similarities between police brutality cases

and Stand Your Ground cases. It is important to examine more than

the events leading up to these tragic incidents, but to look at

how the leniency, the benefit of the doubt that we have

traditionally afforded to police officers time and time again

even in cases where there seems to be obvious culpability, is now

being afforded to private citizens in Stand Your Ground. There is

no sense in attempting to argue that Stand Your Ground laws, Make

My Day laws, or the Castle doctrine as applied across this

country create racism. However, it is clear that these types of

laws can have one particularly negative affect on race relations.

If stereotypes allow people to quickly judge one another without

serious thought, time, or effort given to developing a true

understanding of the differences between us, Stand Your Ground

laws can oftentimes, as we have seen, have the effect of making

us more comfortable with life-or-death decisions based on the

hasty and often unfair characterizations we make of each other.

When we see juries acquit, or fail to reach a unanimous

verdict on such controversial cases in which the punishment of

the assailant is an option, the message that we send to the

people of color who have suffered in these most recent cases is

an all too familiar one, the same one which led to the Los

Angeles riots of 1992: “Your lives and your humanity do not

matter.” The sort of despair and rage that it created was, by and

large, a reflection to American society of a reality it had

imposed on the community in the wake of Rodney King’s beating by

those police officers and their subsequent acquittals. Regardless

of where any of us may come out on the gun rights debates or the

stand your ground debates, it seems a fairly universal concept

that the sort of carnage caused in those riots is not to be

repeated.

Thus, in order to eliminate this lack of accountability

traditionally given to state actors and police which the Stand

Your Ground laws extend to private citizens - particularly when

the deceased or injured is black - those laws should be repealed.

What would result? A society in which every single person would

reasonably anticipate not only facing danger, but the burden of

retreat in every situation? No. The Castle doctrine would still

apply, and as mentioned earlier, it is tied – in various

jurisdictions - to various forms of real property. That is, in

many cases, there would still be no duty to retreat when in one’s

home, vehicle, or office. However, in a situation where the young

hooded man walking down one’s street may or may not be a robber,

there should be a very clear understanding that going after him

when specifically instructed not to (or even if no such

instruction exists), Neighborhood Watch status notwithstanding,

makes one responsible for the result of that confrontation. There

should also be a rule requiring more than an unsubstantiated

belief that a person has or is reaching for a gun before a jury

is willing to find someone justified in killing that person, as

otherwise the belief may be enough to justify a spontaneous, but

otherwise intentional or recklessly misguided fatality.

However, repealing the statute still raises plenty of doubts

and questions. What about the fact that the actual Stand Your

Ground law was not invoked in two of the three so-called Stand

Your Ground cases and essentially made them into self-defense

cases? One answer would be to draw attention back to the fact

that Stand Your Ground still made its way into the jury

instructions when it came to Michael Dunn, and that this may well

have led to his acquittal on the first-degree murder charge.

Repealing the statute would remove this confusing or misplaced

instruction from the jury instructions and from consideration in

the deliberation room.

What about close call shooting cases where one person

genuinely fears for his life? Would repeal of the law effectively

mean that any person with a gun who believed another person to be

concealing a weapon would have to wait until the weapon is drawn

to fire? What about the possibility that waiting that long could

cost an armed, law-abiding citizen his life? If, in close call

situations where the Castle doctrine does not apply, the law can

mandate a duty to retreat, it stands to reason that the law might

also be able to apply a duty to a licensed gun carrier that he

must warn a would-be attacker that said licensed gun carrier is

armed and willing to shoot if threatened or assaulted. While

there would likely be exceptions and these requirements might not

perfectly apply across the board, it could be enough to begin the

process of shifting public consciousness toward accountability

before and after ‘standing one’s ground.’