"Justifiable Homicides" Are on the Rise: Have Self-Defense Laws Gone Too Far?
November 13, 2008
One year ago today, a 61-year old Texan named Joe Horn looked out his window in Pasadena, just outside of Houston, and saw a pair of black men on his neighbor's property. It appeared to be a burglary in action, so he called 911. But as he described what he saw to the emergency dispatcher, he began to get agitated. The police would take too long to get there, he decided. Instead, he'd stop the crime himself.
"I've got a shotgun," Horn told the 911 dispatcher. "You want me to stop him?"
The dispatcher tried to talk him down. "Nope, don't do that," he told Horn. "Ain't no property worth shooting somebody over, OK?"
It was not OK with Horn. With the dispatcher still on the phone, he grabbed his gun, went outside, yelled, "Move, you're dead!" -- and shot the two men in the back.
The victims turned out to be two undocumented immigrants from Colombia, Diego Ortiz and Miguel de Jesus. Both died on the scene.
The killings sparked instant controversy nationwide, with some labeling it a deplorable act of vigilante justice, and others calling Horn a hero for defending his neighbor's property. Because the victims were in the country illegally, the controversy was further fueled by the ugly, ongoing fight over immigration. Protesters who arrived on Horn's block to call for justice for his victims were met with counterprotesters waving signs in support of their neighbor. "Once again, our chaotic immigration system has led to death," Bill O'Reilly fumed on Dec. 6, 2007.
This summer, Horn was officially cleared of wrongdoing, when a grand jury failed to indict him on any charges. The decision was met with dismay by the families of Ortiz and de Jesus. Diamond Morgan, Ortiz's widow, will now raise their infant son without him. "It's horrible," she said about the 911 recording. "(Horn) was so eager, so eager to shoot." "This man took the law into his own hands," Stephanie Storey, de Jesus' fiancee, told reporters. "He shot two individuals in the back after having been told over and over to stay inside. It was his choice to go outside and his choice to take two lives."
But Horn and his attorney claimed that in addition to protecting his neighbor's home, he was acting in self-defense. "He was afraid for his life," his lawyer, Tom Lambright argued. " … I don't think Joe had time to make a conscious decision. I think he only had time to react to what was going on. Short answer is, he was defending his life. "
But the 9/11 recording tells a different story:
Horn: He's coming out the window right now, I gotta go, buddy. I'm sorry, but he's coming out the window.
Dispatcher: Don't, don't -- don't go out the door. Mr. Horn? Mr. Horn?
Horn: They just stole something. I'm going after them, I'm sorry.
Dispatcher: Don't go outside.
Horn: I ain't letting them get away with this shit. They stole something. They got a bag of something.
Dispatcher: Don't go outside the house.
Horn: I'm doing this.
Dispatcher: Mr. Horn, do not go outside the house.
Horn: I'm sorry. This ain't right, buddy.
Dispatcher: You're going to get yourself shot if you go outside that house with a gun, I don't care what you think.
Horn: You want to make a bet?
Dispatcher: OK? Stay in the house.
Horn: They're getting away!
Dispatcher: That's all right. Property's not worth killing someone over, OK?
Dispatcher: Don't go out the house. Don't be shooting nobody. I know you're pissed and you're frustrated, but don't do it.
Horn: They got a bag of loot.
Dispatcher: OK. How big is the bag? … Which way are they going?
Horn: I'm going outside. I'll find out.
Dispatcher: I don't want you going outside, Mr. Horn.
Horn: Well, here it goes, buddy. You hear the shotgun clicking and I'm going.
Dispatcher: Don't go outside.
Horn: (yelling) Move, you're dead!
(Sound of shots being fired)
Besides being a disturbing recording, the tape is also notable for what it reveals about the moments before Horn saw Ortiz and de Jesus emerge from the window. "I have a right to protect myself too, sir," Horn argued with the dispatcher. "… And the laws have been changed in this country since September the first, and you know it and I know it."
Horn was referring to Texas's newly enacted Castle Law, signed by Gov. Rick Perry on March 27, 2007, and which had gone into effect that fall. The law, as described by the governor, "allows Texans to not only protect themselves from criminals, but to receive the protection of state law when circumstances dictate that they use deadly force." Its benefit, Perry said, is that "it protects law-abiding citizens from unfair litigation and further clarifies their right to self-defense."
It may seem like a stretch to say Horn was acting out of self-defense. As CNN legal analyst Jeffrey Toobin observed after listening to the tape, "He does not appear to be someone who's in a panic. It's a very cool and rather chilling determination to go out and use his gun, against the instructions of the 911 operator." Nevertheless, the new statute ultimately saved Horn from prosecution. Whether or not the law was designed to protect private property as much as human life, rather than "clarifying" the right to self-defense, as Perry claims, the practical effect of Texas' Castle Law appears to be a broadening of the definition to an unprecedented -- and deadly -- degree.
"Stand Your Ground" Laws
The Castle Law is not some wild Texas invention. In fact, the "castle doctrine" is a concept that dates back to English Common Law. As Ohio State law professor and criminal justice expert Joshua Dressler explains, the castle doctrine basically dictates "that your home is your castle; it's the one place where you should be able to be free from intrusion." This idea has provided the legal basis for self-defense legislation across the country for years -- legislation that traditionally has also acknowledged a person's "duty to retreat" in the face of a threatening situation. "The law has always taken the view for self-defense that someone can use deadly force to respond to what the person reasonably believes is a threat," explains Dressler. But, he adds, "the old law tended to be that people ought not to use deadly force until absolutely necessary. They tended to require people to find non-deadly solutions."
Recent decades have seen some exceptions. One precursor to the new Texas law is a 1985 Colorado law, nicknamed the "Make My Day" law, that treats property crimes as legitimate grounds for the use of force. The law came under national scrutiny in 1990, when an 18-year-old named Laureano Jacobo Grieigo Jr. was shot in the head by a 69-year-old-man as he fled his the man's home in an unsuccessful robbery attempt. No charges were filed, and an article published in the New York Times at the time called the law an "unusual" statute "that protects people from any criminal charge or civil suit if they use force -- including deadly force -- against an invader of the home." (The same article quoted a criminologist at Florida International University, Dr. William Wilbanks, who warned that the law was ripe for abuse. "The danger is not that this kind of law will be abandoned, but that it will be extended even more," he said. ''The public sentiment is clearly behind this kind of law.")
Almost two decades later, Texas' Castle Law is part of a wave of similar legislation passed by states throughout the country, building upon the castle doctrine and broadening the right of civilians to use lethal force under the auspices of self-defense. The new laws are particularly expansive in that they go beyond the boundaries of private homes to include cars, workplaces or anywhere else a person may feel threatened. In this sense, says Dressler, "what is happening is that the castle doctrine is becoming less important."
Leading the pack was Florida. In 2005, Gov. Jeb Bush signed a law that, as written, "authorizes (a) person to use force, including deadly force, against (an) intruder or attacker in (a) dwelling, residence, or vehicle under specified circumstances." The law "provides that person is justified in using deadly force under certain circumstances," and "provides immunity from criminal prosecution or civil action for using deadly force." Formally called the "Protection of Persons/Use of Force" law, it became known as the "Stand Your Ground" law.
Heavily backed by the National Rifle Association, Florida's new law alarmed more than just gun control advocates. Many people were appalled at the fact that it could apply in public spaces. As the Christian Science Monitor reported at the time:
"Most significantly, (the law) now extends that right to public places, too, meaning that a person no longer has a duty to retreat from what they perceive to be a threatening situation before they are entitled to pull the trigger. Members of the public may now stand their ground and "meet force with force," it states, without fear of criminal prosecution or civil litigation. "It's common sense to allow people to defend themselves," said Gov. Jeb Bush (R) as he signed the new law."
Only 20 state legislators opposed the law. One Democratic critic worried that it could "turn Florida into the OK Corral," but other Democratic politicians "admitted that they did not want to appear soft on crime by voting against it." It helped that one of the driving forces behind the law was Marion Hammer, a lobbyist who argued that the law would protect women against abuse and assault. She "characterized herself as a feminist," recalls Dressler, "but … more relevantly, was a former president of the NRA."
Mere months after the passage of Florida's "Stand Your Ground" law, similar legislation was being proposed in more than 20 states. The NRA was happy to take the credit. "Today, the NRA is feeding the firebox of Castle Doctrine legislation in states throughout the country," an article posted on the NRA's Institute for Legislative Action Web site boasted, crediting itself with "reuniting Americans with the right to protect themselves and loved ones from danger."
"Justifiable Homicides" on the Rise
Today, there are similar new laws in at least 15 states across the country, and while it may be too early to know the effects, in Texas, the newly passed Castle Law was followed by a series of shootings that prompted questioning over the potential "sudden impact." "Does new law make them quicker to pull the trigger?" asked the Dallas Morning News in January. (At least one source said yes: "I think the Castle Law has more citizens thinking about fighting back, knowing they're protected from being sued later," said a Dallas man who shot and killed a man who broke into his garage, "where he stored thousands of dollars worth of tools.")
Anecdotal evidence aside, one recent government report suggests that the laws may be having some effect. A little-noticed study released in mid-October by the FBI found a spike in the number of "justifiable homicides" recorded in the past few years.
The FBI defines "justifiable homicides" as "certain willful killings" that "must be reported as justifiable, or excusable." This includes "the killing of a felon by a peace officer in the line of duty" and "the killing of a felon, during the commission of a felony, by a private citizen." According to the report, in 2007, police officers killed 391 people -- the highest number since 1994 -- and private citizens killed 254 -- the most since 1997.
Although the report got little attention in the press, an article in USA Today quoted criminal justice experts who cited "an emerging 'shoot-first' mentality by police and private citizens" as a possible explanation.
Dressler agrees. "What's been happening is that a lot of states have broadened their homicide rules to give greater authority to citizens to use deadly force in circumstances that in the past would not have been permissible," he says. Expanding "stand your ground" style legislation "means that there are going to be, in the future, many more homicides perpetrated by citizens against other citizens -- homicides that were in the past viewed as criminal now will be seen as justifiable."
"If you talk to prosecutors, the message that they're getting is, really, don't even prosecute cases that come close to the category of what is now deemed 'just homicides.'"
Whether a killing is "just" or not is currently determined by local police departments, to whom the concept is long familiar. "Police, of course, use justifiable homicide, both in self-defense and in crime prevention," explains Dressler, "but now a couple things are happening. One is the reality that … thanks to the NRA, some fairly conservative judges, Republicans, we've really become an armed nation. Far more people possess guns today than in the more distant past, and that means that when a police officer is dealing with someone, they have much greater reason to fear that the person they're dealing with is armed." This, perhaps, helps to explain the rise in "justifiable homicides" committed by police (not to mention the rise of "non-lethal" weapons like tasers, themselves deadly weapons).
The recent FBI study is not the first time the government has tracked the number of "justifiable homicides" committed by police alongside those committed by civilians as if they were equivalent phenomena. But given that police officers are, at least in theory, trained to be uniquely authorized to use force in a law enforcement capacity, to what extent do these new laws blur the distinction between police and civilians?
"I think the creed of the NRA is that citizens/civilians have the right to use deadly force because the police don't (or cannot) protect us," says Dressler. "So, under that view, yes, the distinction is blurring."
More Homicides Will Be Seen as Justifiable
Although it may be an old concept, the notion of "justifiable homicides" is itself a slippery one. Anti-abortion extremists, for example, have used the term to describe the killing of abortion providers, on the grounds that they are defending the lives of the unborn. But perhaps more alarming is the positive connotation the term holds for some. When a Memphis paper reported earlier this year that the number of local justifiable homicides "jumped from 11 in 2006 to 32 in 2007," it quoted a firearms instructor whose (admittedly unscientific) explanation was that "the thugs have started running into people who can protect themselves." It's a rather glib way to talk about murder, and the perverse effect is to cast the killings as a positive trend. In Memphis that year, the 32 "justifiable homicides" included four killings by police officers. "All were found to be what internal affairs investigators term 'good shoots,'" according to the report, which explained that "Tennessee law gives citizens the right to defend themselves if they have a reasonable and imminent fear of harm from a carjacker, rapist, burglar or other violent assailant. They can also employ deadly force to protect another person."
But what about another person's property, as in the case of Joe Horn? If a person can shoot two men in the back and get away with it -- and, indeed, if he cites his legal right to do so -- haven't these laws gone too far?
Dressler thinks so. "My fear is that these changes in self-defense laws will lead to a lot more homicides -- and that a lot more homicides will be seen as justifiable."