THE "WHITE" TO BEAR ARMS: HOW IMMUNITY PROVISIONS IN STAND YOUR GROUND STATUTES LEAD TO AN UNEQUAL APPLICATION OF THE LAW FOR BLACK GUN OWNERS.

• Author: Bell, Victoria

TABLE OF CONTENTS Introduction 904 I. The History of Stand Your Ground Doctrine and an Examination of the Law's Unique Procedure 907 A. Evolution of Stand Your Ground Law in the United States 908 1. Stand Your Ground Origins and the Castle Doctrine 908 2. The Proliferation and Codification of Stand Your Ground Legislation 910 3. Criticisms of, and Arguments for, Stand Your Ground Laws 912 B. Stand Your Ground Procedure 916 1. Initial Determination of Criminal Immunity 916 2. Presumption of Reasonable Fear 918 3. Pretrial Immunity Hearings 920 II. Stand Your Ground Law and Its Discriminatory Impact on Black Gun Owners 922 A. How Stand Your Ground Works in Practice 922 1. Gun Ownership Demographics 922 2. Justifiability and Race 924 3. Black Gun Owners and a Stigma of Violence 926 B. Factors that Support a Repeal of Immunity Provisions Due to Police Discretion 928 1. Implicit Racial Bias Demonstrated by Local Police 928 2. Lack of Legal Training and Biases Leads to an Unequal Application of Criminal Immunity for Black Shooters 930 III. Limiting Immunity Determinations in Stand Your Ground States 937 A. Arguments for Limiting Immunity Determinations to Pretrial Hearings 933 B. Problems and Limitations of the Suggested Proposal 936 1. Changes to Stand Your Ground Law May Harm, Rather than Help, Black Shooters 936 2. Stand Your Ground Ideologies Can Still Creep into Jury Instructions, Despite a Lack of an Immunity Provision 939 INTRODUCTION

Originally introduced to the United States in 2005, Stand Your Ground ("SYG") laws came to the forefront of controversy after the shooting of Trayvon Martin in February of 2012. (1) Trayvon Martin, a seventeen-year-old black male, was walking in a gated community in Sanford, Florida on his way to his father's home, when George Zimmerman, a twenty-eight-year-old Latino male and neighborhood-watch volunteer, spotted him and phoned law enforcement. (2) Zimmerman maintained that he called the police because he thought Martin appeared "suspicious" in a hooded sweatshirt, and because there had been recent burglaries in the area that were attributed to young black men. (3) Records show that Zimmerman called the police to report the presence of "suspicious" black men five times that year. (4) During this particular call, law enforcement advised Zimmerman to wait for them to arrive at the scene and not to follow or engage with Martin. (5) After hanging up, however, an alleged altercation broke out between Zimmerman and Martin. (6) Zimmerman claimed Martin was a "threat" and eventually shot Martin with a black Kel Tek 9mm semi-automatic handgun "to save [his] own" life. (7) Zimmerman had a concealed weapons permit at the time of the incident. (8) When law enforcement arrived at the scene, they found Martin's body lying face down on the grass about seventy yards from his father's home; Martin was bleeding from a chest wound, with twenty-two dollars, Skittles, and a can of iced tea in his pockets. (9)

Despite Zimmerman's disregard for the police orders, no arrest was initially made. (10) Additionally, while the Seminole County State Attorney's Office "was consulted the night of Martin's killing...no prosecutor ever visited the scene." (11) In fact, Sanford Police Chief Bill Lee insisted, "[b]y Florida Statute, law enforcement was prohibited from making an arrest based of [sic] the facts and circumstances they had at the time." (12) Lee further explained that police were precluded from making an arrest because "Zimmerman was able to articulate that he was in 'reasonable fear' of great bodily harm or death," and that witness statements corroborated this version of the story when law enforcement arrived on scene. (13) The Florida law that "prohibited" Sanford police from making an arrest, and the statute that dissuaded the State Attorney's Office from conducting an initial investigation, was the state's SYG provisions--Sections 776.012 and 776.013, which provide immunity from criminal arrest and prosecution upon a finding that a shooter reasonably believed that the use of deadly force was necessary to prevent his imminent death or grave bodily harm. (14)

Sections 776.012 and 776.013 were in the spotlight yet again in July 2018, when a surveillance video captured the shooting of Markeis McGlockton, a black male, in Clearwater, Florida. (15) A video camera from the parking lot of a convenience store captured Michael Drejka, a white male, approaching McGlockton's parked car and yelling at McGlockton's girlfriend and five-year-old child, who were temporarily parked in a handicap spot as McGlockton was shopping. (16) McGlockton emerged from the store, quickly shoved Drejka to the ground, and began to step away. (17) Despite McGlockton's clear retreat, as caught on tape, Drejka pulled out a concealed firearm and fatally shot McGlockton in the chest. (18)

Similar to the Zimmerman incident and before law enforcement was able to access the surveillance video, officials did not arrest Drejka because they believed that Florida's SYG statute precluded his arrest. (19) Pinellas County Sheriff Bob Gualtieri stated, "[t]o arrest, it must be so clear that, as a matter of law, 'stand your ground' does not apply in any way to the facts and circumstances that you're presented with." (20) When asked more specifically why SYG precluded his arrest, Gualtieri responded that the decision not to arrest Drejka was "merely doing what Florida law compels," as differing witness accounts obliged law enforcement to believe Drejka's own story of reasonable self-defense. (21)

Part I of this Note describes the background of SYG laws in the United State as well as the unique aspects of SYG procedure, including criminal immunity determinations, a presumption of reasonable fear, and pretrial immunity hearings. Part II examines the demographics of national gun ownership, how legal justifiability of SYG shootings reflect an unequal application of the law, and how a stigma of violence surrounding young black males may play a discriminatory role in immunity determinations in SYG cases. Part II presents factors that currently work against black shooters wanting to utilize self-help in support of a change in current SYG legislation. This includes how implicit biases maintained by law enforcement may impact immunity determinations, how inconsistent applications of immunity determinations are most harmful to black shooters claiming SYG defenses, and how police discretion in determining initial immunity leads to a disparate level of arrest and prosecution of black shooters. Part III proposes to repeal provisions in the relevant SYG jurisdictions that provide immunity from criminal arrest and prosecution upon a finding of "reasonable" self-defense by police. Part III concludes by presenting some problems of, and limitations to, this proposal, due to the potentially detrimental effect the change may have for black shooters, and the possibility that the ideology behind SYG may still play a role in jury instructions and trial matters.

1. THE HISTORY OF STAND YOUR GROUND DOCTRINE AND AN EXAMINATION OF THE LAW'S UNIQUE PROCEDURE

   Part I explores the development and advancement of SYG law in the United States, beginning with a discussion of the "Castle Doctrine," a common law doctrine that allowed an individual to use deadly force in self-defense while in one's "castle," or home. Next, this Part discusses how lobbyists and special interest groups strategically pushed for the codification of SYG laws with a specific target on the southern states. This Part then examines both the criticisms of SYG law as well as arguments for its support, including a debate over fundamental rights, deterrence, and the role of financial interests in the law's proliferation.

   Part I continues with a discussion of SYG procedure and how it diverges from traditional criminal procedure. Primarily, this includes how SYG statutes in some jurisdictions allow local law enforcement to determine which shooters are criminally immune from arrest and further prosecution, and how these determination rest solely on the discretion of individual officers. Next, this Part considers how these immunity provisions confer a presumption of reasonable fear for the shooters that act as an obstacle for police when trying to disprove the shooter's claim. Finally, this Part analyzes the function of a SYG pretrial immunity hearing and how it provides a second layer of protection to shooters.

   1. Evolution of Stand Your Ground Law in the United States

      (1.) Stand Your Ground Origins and the Castle Doctrine

      At their most basic level, SYG laws are legal justifications to use deadly force in the face of perceived threats, even when the individual faced with such threats has an opportunity to retreat. (22) While SYG statutes ultimately vary by jurisdiction, most state that a person is justified in the use of deadly force and does not have a duty to retreat if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another. (23)

      SYG law derives from the "Castle Doctrine," a common law doctrine by which individuals could use deadly force in self-defense or to prevent a violent felony when in the safety of one's home. (24) The Castle Doctrine had diverged from traditional English common law, where similarly situated individuals had a general duty to retreat. (25) The United States, however, has long-embraced this diversion. Since the country's development westward, "American ideals of bravery and honor suited themselves to frontier life in a way that the English duty to retreat could not." (26) Therefore, "as the United States developed, so did the concept of the right to defend one's honor, especially in the South and the Midwest." (27) Towards the end of the nineteenth century, the Supreme Court formally acknowledged and accepted the Castle Doctrine in Beard v. United States (28):

      Where an attack is made with...