15 States Expand Right to Shoot in Self-Defense

By Adam Liptak
The New York Times

Monday 07 August 2006

In the last year, 15 states have enacted laws that expand the right of self-defense, allowing crime victims to use deadly force in situations that might formerly have subjected them to prosecution for murder.

Supporters call them "stand your ground" laws. Opponents call them "shoot first" laws.

Thanks to this sort of law, a prostitute in Port Richey, Fla., who killed her 72-year-old client with his own gun rather than flee was not charged last month. Similarly, the police in Clearwater, Fla., did not arrest a man who shot a neighbor in early June after a shouting match over putting out garbage, though the authorities say they are still reviewing the evidence.

The first of the new laws took effect in Florida in October, and cases under it are now reaching prosecutors and juries there. The other laws, mostly in Southern and Midwestern states, were enacted this year, according to the National Rifle Association, which has enthusiastically promoted them.

Florida does not keep comprehensive records on the impact of its new law, but prosecutors and defense lawyers there agree that fewer people who claim self-defense are being charged or convicted.

The Florida law, which served as a model for the others, gives people the right to use deadly force against intruders entering their homes. They no longer need to prove that they feared for their safety, only that the person they killed had intruded unlawfully and forcefully. The law also extends this principle to vehicles.

In addition, the law does away with an earlier requirement that a person attacked in a public place must retreat if possible. Now, that same person, in the law's words, "has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force." The law also forbids the arrest, detention or prosecution of the people covered by the law, and it prohibits civil suits against them.

The central innovation in the Florida law, said Anthony J. Sebok, a professor at Brooklyn Law School, is not its elimination of the duty to retreat, which has been eroding nationally through judicial decisions, but in expanding the right to shoot intruders who pose no threat to the occupant's safety.

"In effect," Professor Sebok said, "the law allows citizens to kill other citizens in defense of property."

This month, a jury in West Palm Beach, Fla., will hear the retrial of a murder case that illustrates the dividing line between the old law and the new one. In November 2004, before the new law was enacted, a cabdriver in West Palm Beach killed a drunken passenger in an altercation after dropping him off.

The first jury deadlocked 9-to-3 in favor of convicting the driver, Robert Lee Smiley Jr., said Henry Munnilal, the jury foreman.

"Mr. Smiley had a lot of chances to retreat and to avoid an escalation," said Mr. Munnilal, a 62-year-old accountant. "He could have just gotten in his cab and left. The thing could have been avoided, and a man's life would have been saved."

Mr. Smiley tried to invoke the new law, which does away with the duty to retreat and would almost certainly have meant his acquittal, but an appeals court refused to apply it retroactively. He has appealed that issue to the Florida Supreme Court.

Wayne LaPierre, executive vice president of the N.R.A., said the Florida law had sent a needed message to law-abiding citizens.

"If they make a decision to save their lives in the split second they are being attacked, the law is on their side," Mr. LaPierre said. "Good people make good decisions. That's why they're good people. If you're going to empower someone, empower the crime victim."

The N.R.A. said it would lobby for versions of the law in eight more states in 2007.

Sarah Brady, chairwoman of the Brady Campaign to Prevent Gun Violence, said her group would fight those efforts. "In a way," Ms. Brady said of the new laws, "it's a license to kill."

Many prosecutors oppose the laws, saying they are unnecessary at best and pernicious at worst. "They're basically giving citizens more rights to use deadly force than we give police officers, and with less review," said Paul A. Logli, president of the National District Attorneys Association.

But some legal experts doubt the laws will make a practical difference. "It's inconceivable to me that one in a hundred Floridians could tell you how the law has changed," said Gary Kleck, who teaches criminology at Florida State University.

Even before the new laws, Professor Kleck added, claims of self-defense were often accepted. "In the South," he said, "they more or less give the benefit of the doubt to the alleged victim's account."

The case involving the Port Richey prostitute, Jacqueline Galas, turned on the new law, said Michael Halkitis, division director of the state attorney's office in nearby New Port Richey. Ms. Galas, 23, said that a longtime client, Frank Labiento, 72, threatened to kill her and then kill himself last month. A suicide note he had left and other evidence supported her contention.

The law came into play when Ms. Galas grabbed Mr. Labiento's gun and chose not to flee but to kill him. "Before that law," Mr. Halkitis said, "before you could use deadly force, you had to retreat. Under the new law, you don't have to do that."

The decision not to charge Ms. Galas was straightforward, Mr. Halkitis said. "It would have been a more difficult situation with the old law," he said, "much more difficult."

In the case of the West Palm Beach cabdriver, Mr. Smiley, then 56, killed Jimmie Morningstar, 43. A sports bar had paid Mr. Smiley $10 to drive Mr. Morningstar home in the early morning of Nov. 6, 2004.

Mr. Morningstar was apparently reluctant to leave the cab once it reached its destination, and Mr. Smiley used a stun gun to hasten his exit. Once outside the cab, Mr. Morningstar flashed a knife, Mr. Smiley testified at his first trial, though one was never found. Mr. Smiley, who had gotten out of his cab, reacted by shooting at his passenger's feet and then into his body, killing him.

Cliff Morningstar, the dead man's uncle, said he was baffled by the killing. "He had a radio," Mr. Morningstar said of Mr. Smiley. "He could have gotten in his car and left. He could have shot him in his knee."

Carey Haughwout, the public defender who represents Mr. Smiley, conceded that no knife was found. "However," Ms. Haughwout said, "there is evidence to support that the victim came at Smiley after Smiley fired two warning shots, and that he did have something in his hand."

In April, a Florida appeals court indicated that the new law, had it applied to Mr. Smiley's case, would have affected its outcome.

"Prior to the legislative enactment, a person was required to 'retreat to the wall' before using his or her right of self-defense by exercising deadly force," Judge Martha C. Warner wrote. The new law, Judge Warner said, abolished that duty.

Jason M. Rosenbloom, the man shot by his neighbor in Clearwater, said his case illustrated the flaws in the Florida law. "Had it been a year and a half ago, he could have been arrested for attempted murder," Mr. Rosenbloom said of his neighbor, Kenneth Allen.

"I was in T-shirt and shorts," Mr. Rosenbloom said, recalling the day he knocked on Mr. Allen's door. Mr. Allen, a retired Virginia police officer, had lodged a complaint with the local authorities, taking Mr. Rosenbloom to task for putting out eight bags of garbage, though local ordinances allow only six.

"I was no threat," Mr. Rosenbloom said. "I had no weapon."

The men exchanged heated words. "He closed the door and then opened the door," Mr. Rosenbloom said of Mr. Allen. "He had a gun. I turned around to put my hands up. He didn't even say a word, and he fired once into my stomach. I bent over, and he shot me in the chest."

Mr. Allen, whose phone number is out of service and who could not be reached for comment, told The St. Petersburg Times that Mr. Rosenbloom had had his foot in the door and had tried to rush into the house, an assertion Mr. Rosenbloom denied.

"I have a right," Mr. Allen said, "to keep my house safe."