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Home / Capitol Insiders / Dissenters question Arizona’s stand-your-ground law, but law officers caution against changes

Dissenters question Arizona’s stand-your-ground law, but law officers caution against changes

Former Arizona House member Cloves Campbell, Jr. calls for a review of Arizona's so-called stand-your-ground law at a July 23 press conference. The Phoenix Democrat was accompanied by other former and current Democratic elected officials.

Former Arizona House member Cloves Campbell, Jr. calls for a review of Arizona’s so-called stand-your-ground law at a July 23 press conference. The Phoenix Democrat was accompanied by other former and current Democratic elected officials.

Protesters marched against it.   Democrats held a press conference to question its value.   Sen. John McCain recommended the state consider changing it.

And Gov. Jan Brewer stood behind it, saying there is no reason to change it.

Like similar laws around the country, Arizona’s stand-your-ground law has been in the spotlight since a Florida jury found George Zimmerman not guilty in the shooting death of Trayvon Martin.

Maricopa County’s top lawman and attorneys who have used the defense said it is rarely applied but necessary for public safety.   They see no need for sweeping changes, but they welcomed a legislative review of the laws after McCain, state Democratic lawmakers and black community leaders called for one.

“There’s an old expression: Hard cases shouldn’t make bad law,” said defense attorney Larry Debus, reflecting that it could be unwise to making changes based only on the Zimmerman acquittal.

Arizona’s core self-defense law, Arizona Revised Statute 13-405, allows someone to use deadly force if the person reasonably believes it is immediately necessary to protect himself from someone else’s use of deadly force.

• RELATED: ‘Stand your ground’ law impacts on violent crime rates

Stand-your-ground is really a catch phrase that doesn’t appear in the language of the law. The law states that a person is not required to retreat in the face of a possibly deadly confrontation if he is in a place where he may legally be and not doing something illegal.

“In Arizona law, if you are where you have a right to be, if you are in your own camp site, if you are in your own home, if you’re standing in the lobby of your bank, or if you’re on your street, then I don’t think there’s a problem with juries and I don’t think there’s a problem with the law,” Debus said.

Debus said that’s why he was so surprised when jurors convicted a client, Roger Garfield, who was in his store when Bobby Cain came in and threatened to take away the gun Garfield was pointing at him.

Debus defended Phoenix store-owner Roger Garfield, who shot and killed an unarmed homeless man in his antiques store after the man came in and threatened to take away the gun Garfield was pointing at him.

Debus said he was surprised when a jury convicted the shop owner.  Now he’s awaiting a new trial after the Arizona Court of Appeals overturned the conviction because Garfield did not get a stand-your-ground jury instruction.

***Questions of self-defense***

Maricopa County Attorney Bill Montgomery said a committee of prosecutors determines whether criminal charges are warranted in cases in which there is a legitimate question of self-defense.  He said stand-your-ground has never been an issue in the roughly 60 cases reviewed since 2011. Arizona’s provision was enacted in 2010.

“It has never come up where we had to consider that as a cornerstone fact,” Montgomery said. “I mean, honestly, the only reason we’re talking about this law is because of the Zimmerman case and because of the racial aspects that have been raised.”

Zimmerman, a 28-year-old Block Watch captain of Hispanic and Jewish descent, shot and killed Trayvon Martin, a black 17-year-old, during a confrontation in a gated community in Sanford, Fla.  A jury acquitted Zimmerman of second-degree murder and the lesser-included manslaughter charge on July 13.

Although Zimmerman didn’t invoke Florida’s stand-your-ground law as a defense, there was language to that effect in the jury instructions, and the verdict spawned calls from Black leaders nationwide and President Obama to reassess the self-defense laws.

Sen. Steve Gallardo, D-Phoenix, and other Democrats are carrying the same message in Arizona. They held a press conference with Black community leaders July 23, which had an equal measure of race-related statements.

Gallardo said the stage was set for Zimmerman’s acquittal by race-based fear and Florida’s law.

“These types of laws are fundamentally unacceptable and should be addressed,” Gallardo said.

Engaging in conflict

Gallardo, who calls the laws “shoot-first legislation,” said he thinks they encourage people to engage in conflict rather than walk away, a belief shared by defense attorney Mel McDonald, whose defense of a hiker’s lethal shooting of an unarmed homeless man in 2004 led to Arizona’s Castle Doctrine law and shifting the burden of proof in justification defenses to the state in 2006.

“I think it would be good to re-look at it and maybe narrow the duty a little more,” McDonald said. “I think people shouldn’t have the duty to turn around and run away and retreat because often times the process of doing that is riskier than if you stood your ground.”

But McDonald said the criteria of being in a place legally and not doing anything illegal is far too sweeping and “makes the entire earth” a place to stand your ground. He said there are thousands of scenarios, especially road-rage situations, in which the law might encourage someone into further confrontation rather than defusing it.

McDonald said the hiker case is a classic example of self defense and stand your ground, even though it wasn’t on the books when Harold Fish shot and killed Grant Kuenzli on a hiking trail in Coconino County on May 11, 2004, firing three bullets into his chest at close range. He said Kuenzli charged him in a threatening manner after he fired a warning shot to deter Kuenzli’s aggressive dogs.

McDonald said he had nowhere to retreat because the trail was steep and Kuenzli and the dogs could have easily caught him.

McDonald said he doesn’t think the provision has been used very often in Arizona.

“I don’t know that it’s that huge of an issue,” McDonald said. “You take Trayvon Martin out of the picture and I can’t think of any other area in the country where it’s been a big story.”

Debus and McDonald said the most significant change in self-defense law in recent years came in 2006 when defendants no longer had the burden of proof in self-defense cases. Prosecutors now have to prove beyond a reasonable doubt that the defendant did not act with justification.

Montgomery said that is the way it should be.

He said the stand-your-ground law has not hindered his ability to distinguish between cases where self-defense is a legitimate claim.

“And I don’t believe it has made our community less safe,” he said.

He said he would prefer that criminals second guess whether a person is armed and able to defend themselves, rather than innocent citizens having to second guess whether they can defend themselves and their families.

A lack of debate

Gallardo said one of the problems he has with the law is it breezed through the Legislature in 2010 with no debate.

The provision was part of a larger piece of legislation that was a strike-all amendment of HB2629, originally a bill having to do with firearms and police retirement.

The amended bill’s prime subject was prohibiting political subdivisions from registering firearms sales of people who aren’t licensed firearms dealers and prohibiting a record of any firearm placed in temporary storage at a public building or event.

All of the discussion of the bill in the Senate Judiciary Committee, where the strike-all amendment was introduced, was on the firearm registration provisions.

The Senate Committee of the Whole approved the bill with no debate and the House concurred on the Senate amendments on a 55 to 2 vote.

He said he plans to introduce a bill next session to address stand-your-ground, but he’s a long way from deciding how it will be structured.

“This is more than about race, this is about public safety,” Gallardo said.

 

Brief History of Self-Defense Laws in Arizona

1997: The burden of proof in justification defenses shifts to the defendant.

2006: The burden of proof shifts back to the state, the passage of which was driven by the prosecution of Harold Fish, who shot and killed a homeless man Fish claimed was charging him on a Coconino County hiking trail in 2004. The “Castle Doctrine,” which allows potential victims of violent assaults in their homes or vehicles to use lethal force against their attacker, also passed. The law included the element of “no duty to retreat,” known as stand-your-ground.

2009: The 2006 legislation on the burden of proof and Castle Doctrine is made retroactive to all cases pending trial as of April 24, 2006, which was passed for the benefit of Fish, who by that time had spent three years in prison convicted of second-degree murder. His conviction was eventually overturned and prosecutors dropped the case.

2010: Stand-your-ground provision added to Arizona’s core self-defense statute.

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