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Cases put focus on self-defense laws

Jul. 20, 2013 @ 10:55 PM

HUNTINGTON -- The recent acquittals of George Zimmerman in Florida and Aaron Searls in Huntington have brought a renewed focus on the nation's self-defense laws, specifically the responsibility of a person who utilizes deadly force.

West Virginia and Kentucky, like Florida, are among at least 22 states with laws that place no duty to retreat upon the threatened party before that person reacts with deadly force.

In the wake of Zimmerman's acquittal, President Barack Obama and U.S. Attorney General Eric Holder said last week they believe it's time to rethink such laws in regard to incidents that happen outside of a person's home, such as Zimmerman's killing of Martin on Feb. 26, 2012.

Those involved in passing West Virginia's law have resisted calls for change since Martin's death, and that's a position Larry Keaton Sr. wishes lawmakers in both Charleston and his home state of Kentucky would reconsider. His comments came Thursday, two days after Holder's speech and three days after a Cabell County jury acquitted Searls in the death of his son, Larry John Keaton Jr. of Catlettsburg, Ky.

"You'll get into 'he said, she said' and it's just an excuse to get away with murder," Keaton Sr. said. "So no, I don't believe that's a good law at all."

Attorneys for both Zimmerman and Searls claimed self-defense, describing the person their clients killed as the aggressor. Both confrontations, they claim, involved an unarmed attacker throwing the first punch and following it with additional blows that placed Zimmerman and Searls in fear.

Both men responded with gunfire in shootings that killed Martin, in Sanford, Fla., and Keaton Jr., outside of a bar in the 1500 block of 3rd Avenue in Huntington. The specifics were vastly different, and defense attorneys in Huntington insist Searls' acquittal was based upon a lack of physical evidence. But one similarity they share is both occurred away from the gunman's home in states that do not require that person to retreat.

Such laws are generally referred to as castle doctrine or stand-your-ground, and Holder believes those statutes undermine public safety "by allowing and perhaps encouraging violent situations to escalate in public." He told those attending last week's NAACP Annual Convention in Orlando, Fla., that Martin's death is separate and apart from the country's collective obligation to "stand our ground" and ensure its laws reduce violence instead of contributing to it.

"It's time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods," he told convention attendees. "These laws try to fix something that was never broken. There has always been a legal defense for using deadly force if -- and the 'if' is important -- no safe retreat is available.

"But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely," the attorney general added.

Obama addressed the issue talking with reporters at the White House on Friday.

"How do we learn some lessons from this and move in a positive direction?"

West Virginia Senate President Jeff Kessler, D-Marshall, and Sen. Evan Jenkins, D-Cabell, this week said they remained comfortable with West Virginia's statute, passed in 2008 as the "Castle Doctrine" when Kessler chaired the Senate Judiciary Committee and Jenkins was a member of it.

Both senators stressed their legislation limits justifiable self-defense, both inside and outside of one's home, to "reasonable and proportionate force" at a time when the person being attacked "reasonably believes that he or she or another is in imminent danger of death or serious bodily harm" for which deadly force is the only remedy.

From there it becomes a question for jurors to analyze the facts on a case-by-case basis, both senators said.

"We could not, nor should we, try to contemplate every fact scenario and try to write a law to cover every potential circumstance," Jenkins said. "I think our law is clear; it's workable and it is there for the jury to apply."

Local attorney Cheryl L. Henderson disagreed with the two senators. She sided with Holder, explaining her belief that America has become a "gun-toting country." She said Martin's death underscores the wide latitude of such legislation and the potential for someone to shoot if they feel scared.

"That gets to be scary at some point of who's really standing their 'ground,'" she said. "I think it's a scary proposition."

West Virginia's legislation, signed by then Gov. Joe Manchin, was included in statutes pertaining to civil liability, however Kessler and others interviewed said it resembled many years of common law that has been long depended upon in criminal court.

It differs from that of Kentucky and Florida only in that those states use terminology that a person threatened away from home can "stand his or her ground and meet force with force" without a duty to retreat. Seven other states use such wording, according to the National Conference of State Legislatures.

Ohio's version of the law is limited to the person's home and/or vehicle. Unlike West Virginia and Kentucky, the Buckeye State does not extend its no-duty-to-retreat to other areas a person may legally be -- not even a significant other's vehicle. That was the decision of an Ohio appeals court in January that declined to extend the state's Castle Doctrine to a vehicle owned by a convict's girlfriend, according to the Cincinnati Enquirer.

The Kentucky State Supreme Court is considering a divided, appeals court decision that cited the state's Castle Doctrine in overturning a manslaughter conviction. It stemmed from a bar fight in Newport, Ky., a suburb of Cincinnati. The appeals court ruled, 2-1, that prosecutors didn't present enough evidence to overcome the defendant's claim of self-defense, while the court's lone dissenter argued the state's law needs clarification.

Like West Virginia, the Kentucky and Florida laws limit deadly force to when the threatened person "reasonably believes" such action is necessary to prevent death or great bodily harm.

Cabell County Prosecutor Chris Chiles stands by one's legal right to self-defense, but said such laws can be problematic. That's especially true in a case outside of one's residence, as he and others said a victim attacked at home has no other place to retreat.

Elsewhere, Chiles said it can become very subjective.

"In addition to jurors having to decide is this person telling the truth, is that person telling the truth, is this how it happened -- they also have to get inside the defendant's head," he said. "They have to say, 'A. Did he really believe this? and B. Was it reasonable?'"

Abraham Saad and Rich Weston, two attorneys who have successfully argued local self-defense cases, said state lawmakers should guard against a knee-jerk decision, as did Wendell Searls, father of Saad's client in last week's local verdict.

Saad and his client's father agree that someone threatened should always retreat first and only use deadly force as a last resort, but they said any review by lawmakers should be cautious and done from the perspective of each state.

"They shouldn't be pressured from a political perspective," Saad said. "I think that's oftentimes when bad laws get written is when there is political pressure from above based upon one event."

Weston used the Castle Doctrine in September 2008. That is when he successfully represented a homeless man, who defended himself at Harris Riverfront Park by fatally stabbing an intruder who tried to enter a vehicle where Weston's client had been sleeping.

"Most of the time, decisions made in those types of situations are made on a very, split-second basis," he said. "Bad facts make bad law sometimes."

Huntington Police Capt. Rick Eplin, also a federally licensed firearms dealer, does not believe a nationwide review of self-defense laws is warranted. He said the duty-to-retreat standard has been ambiguous, at times, as far as the distance one should retreat.

Eplin furthermore cited the words "reasonable and proportionate" in West Virginia's statute. He equated such language to the escalation-of-force standard used in training his officers, meaning that deadly force should be a last resort and then the shooter must be able to articulate and explain that imminent danger.

Follow Curtis Johnson at Facebook.com/curtisjohnsonHD and via Twitter @curtisjohnsonHD.

Standing your ground

As of January, the National Conference of State Legislatures determined West Virginia, Kentucky and Florida were among at least 22 states with laws stating a threatened party has no duty to retreat his or her attacker in any place that person is lawfully present. Others were Alabama, Arizona, Georgia, Indiana, Kansas, Louisiana, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas and Utah.

Florida and Kentucky specifically use language that one may "stand his or her ground," as does Alabama, Georgia, Kansas, Louisiana, Oklahoma, Pennsylvania and South Carolina.

The following is a comparison of laws in Florida, West Virginia, Kentucky and Ohio.

West Virginia: A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker -- West Virginia Code 55-7-22 (c)

Kentucky: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force -- Kentucky Revised Statues 503.055 (3)

Florida: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony -- Florida Statues 776.013 (3)

Ohio: The Ohio Revised Code restricts use of deadly force, with no duty to retreat, to one's residence and/or vehicle.

(u'addcomment', u'nobuy')


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