'Stand your ground' laws under fire

2013-07-20T23:45:00Z 2013-07-22T00:26:08Z 'Stand your ground' laws under fireSusan Brown susan.brown@nwi.com, (219) 662-5325 nwitimes.com

CROWN POINT | Enacted since 2005 in at least 22 states, including Indiana, self-defense laws known as "stand your ground" have come under the microscope following the acquittal in Florida of George Zimmerman -- accused of shooting unarmed black teen Trayvon Martin.

A nationwide rallying cry to review the laws has its Hoosier supporters, boosted Friday by President Barack Obama making comments that Martin "could have been me 35 years ago."

Empathizing with many black Americans, Obama said the case conjured up a hard history of racial injustice "that doesn't go away." Indiana lawmakers have been reported calling for a review of state law at the next legislative session, which begins in January.

Rallies with that aim were conducted Saturday in some 100 cities, including Hammond and Indianapolis.

Area criminal defense lawyers and legal academics weighed in on Indiana's version of the law. 

While attorneys agree Indiana's expansive version is largely similar to that of Florida's, veteran Gary criminal defense attorney Darnail Lyles sees one glaring difference.

In Indiana, had his defense team invoked the law, Lyles said Zimmerman may have been required at the jury-instruction phase to testify to what caused him to fire at 17-year-old Martin.

"Our jury instructions require the defendant to take the stand, in that only he can say what was the imminent danger he was responding to," Lyles said. "If you allege self-defense, you have to tell the jury what scared you."

"What they did in Florida is a mystery to me," Lyles said.

Some attorneys and academics disagreed, calling the requirement unconstitutional, but law professor Joel Schumm appeared to support Lyles' stance.

"Jury instructions are given whenever supported by evidence at trial," said Schumm, a professor at Indiana University Maurer School of Law,

"Sometimes this may require the defendant to testify -- if none of the other evidence of trial supports the defense," he said.

In Indiana, Lyles said attorneys argue the defendant was in a place where he had a right to be and was confronted with a threat of serious bodily injury against which he protected himself.

Crown Point criminal defense attorney John Maksimovich said he believes what happened in Florida could happen here.


Indiana defense laws also broad

While pleased on a professional level with Indiana's self-defense laws,  Maksimovich said on a personal level, he believes the laws "may be a bit on the broad side."

"I'm not a big fan of using violence to solve problems," Maksimovich said.

Florida's jury may have decided the case accurately though we may not like the result, Maksimovich said.

"I got the idea the jury could believe he was in fear for his life," Maksimovich said.

Criminal defense attorney Larry Rogers, of Valparaiso, agreed Indiana's law is broad-based, going beyond the traditionally held belief citizens have a right to defend their homes, vehicles and similar property.

"They make a distinction between property and person," he said. "We've had law in place for 30 years in Indiana saying you have a right to defend yourself against unlawful force even by deadly means."

It includes the right to use deadly force to protect a third person, such as intervening in a rape, he said.

However, it does not mean having the right to kill someone if he's coming at you with a fly swatter, he said.

Schumm said the "stand your ground" aspect was added to Indiana law in 2006 to make it clear individuals do not have a duty to retreat.

"Individuals have pretty broad authority to use deadly force, especially when their home, curtilage (the area immediately around their home), or vehicle is being attacked," he said.

"Outside those areas, Hoosiers can use deadly force if they reasonably believe the force is necessary to prevent serious bodily injury or a forcible felony," he said.

Schumm said different individuals will perceive threats differently, and prosecutors must decide whether the use of force was "reasonable" before pursuing charges.

British common law and later American law long held "reasonableness" was not only whether to defend but also with how much force, said Bruce Berner, criminal law professor at Valparaiso University.

When it came to using deadly force, common law provided for retreating safely if able, he said.

American states in the 20th century divided into "retreat" and "non-retreat" states.

The change occasioned by "stand your ground" is essentially the law stating you never need to retreat before using deadly force, assuming it was reasonable, Berner said.

"No longer can the juries in those states decide it was unreasonable to stand and kill. The law says you can (the reverse of the retreat rule), and the law cannot second-guess you for not removing yourself from the situation," Berner said.

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