by Gene Howington, Guest Blogger
Presumed cooked.
There is an old adage, “What’s good for the goose is [not] sauce for the gander” or as phrased today “What’s good for the goose is [not] good for the gander”. The implication being that what is good for one is good for all or not good for all if stated in the negated form. A case out of Florida provides a perfect example to give this adage a workout.
The goose is former President George W. Bush.
The member of the gander in this case is William T. Woodward of Titusville, Florida. Woodward is charged with shooting three of his neighbors, two of them fatally, over the 2012 Labor Day weekend.
His defense? The sauce.
Woodward’s attorneys are asserting Florida’s “Stand Your Ground’ law and the Bush Doctrine.
Let’s examine this case in the light of the history and consequences of “Stand Your Ground”, the Bush Doctrine and how an equally controversial foreign policy stance might impact a domestic criminal proceeding.
Stand Your Ground
Gov. Jeb Bush
The controversial so-called “Stand Your Ground” Law came to the forefront of national media with the Trayvon Martin case. Although his killer, George Zimmerman, and his attorneys decided not to pursue a “Stand Your Ground” hearing, that case was when many people first heard of this law. It probably won’t be the last. In 2005 when this law was adopted by Florida, Florida state Senator Steve Geller warned that it ran the risk of encouraging people to think that “you ought to be able to kill people that are walking toward you on the street because of this subjective belief that you’re worried that they may get in a fight with you.”
Originally enacted in 2005, the bill was signed into law by then Governor Jeb Bush and was sponsored by Florida state Representative Dennis Baxley and state Senator Durell Peadon, Republican allies of the former Governor. This so-called model legislation has been pushed for nationwide on a state-by-state basis by the American Legislative Exchange Council (ALEC), a shadowy 501(c)(3) corporation that allegedly promotes “limited government, free enterprise and federalism” through sponsoring “model legislation”. Funded by the notorious Koch Brothers and such corporations as private prison industry giants GEO Group, Inc. and Corrections Corporation of America, ALEC has been described in less euphemistic language by John Nichols writing for The Nation as a “collaboration between multinational corporations and conservative state legislators” that pursues goals of privatizing government services, reduction and elimination of corporate taxes and regulation, seeks to classify environmental and animal rights activists as terrorists, and works hand in glove with the National Rifle Association (NRA) in “promoting gun rights”. Gun rights such as the incredibly expansive “Stand Your Ground” laws. It should be noted as a sidebar that ALEC is also behind the also controversial Citizens United case which greatly expanded corporate personality and essentially allowed unlimited corporate spending in election advertising. To put it bluntly, ALEC is an organization with a corporatist/fascist agenda. An agenda that would benefit by an increase in gun violence as a rationale for promoting the privatization of government services and institutions like prisons and law enforcement. For more information on ALEC, see the joint venture between The Nation and the Center for Media and Democracy called “ALEC Exposed“.
To put “Stand Your Ground” in context, first consider that the common law doctrine of self-defense provides that 1) a citizen may use reasonable force 2) in defense of themselves, 3) others and 4) sometimes property 5) under imminent threat by an attacker and 6) may be justified in using lethal force in certain objective circumstances such as a reasonable fear of imminent serious injury or death, but 7) also has a duty to retreat or evade if possible.
It should be noted that this provides an affirmative defense. This means that the defender may be charged with a crime but that the crime may be excused due to the mitigating circumstances of self-defense.
The first major modification of this doctrine came in the form of the Castle Doctrine, which although it has older roots in some disparate case law dating as far back as the late 19th Century has also been sponsored more recently by ALEC and the NRA. While it varies from state to state, the notable distinctions are that it 1) removes the duty to retreat or evade in your own home, business and/or vehicle and 2) sometimes provides immunity from criminal charges and civil suits for 3) what would otherwise be self-defense in one’s own home. There are some general qualifiers to this doctrine which may (but not always) include: 1) the intruder must be making (or have made) an attempt to unlawfully or forcibly enter an occupied residence, business, or vehicle, 2) must be acting unlawfully, and 3) the occupant(s)/defender(s) of the home must reasonably believe the intruder intends to inflict serious bodily harm or death upon an occupant of the home although some states apply the Castle Doctrine if the occupant(s)/defender(s) of the home reasonably believe the intruder intends to commit a lesser felony such as arson or burglary and 4) the occupant(s)/defender(s) of the home must not have provoked or instigated the intrusion and/or an intruder’s threat or use of deadly force.
Often packaged and sold with the Castle Doctrine laws is the “Stand Your Ground” provisions at issue in the instant case. To further differentiate “Stand Your Ground” from the common law doctrine of self-defense, “Stand Your Ground” essentially removes the duty to retreat regardless of where you are. Or as Former US Attorney Kendall Coffey told NBC, “The ‘Stand Your Ground’ law is a license to kill. [. . .] The ‘Stand Your Ground’ law has become a huge obstacle to preventing exactly this kind of self-appointed vigilantism—this kind of vigilante justice. It used to be if you shot somebody in quote-unquote ‘self-defense,’ you were protected. But in 2005, Florida decided to become the pioneering state to extend this kind of self-protection to wherever the heck you go…”
According to the Florida Department of Law Enforcement, as of 2012, the number of so-called justifiable homicides in the state had tripled since Jeb Bush signed the “Stand Your Ground” law in 2005. It appears Florida state Senator Steve Geller was prescient in his warnings. Perhaps he is related to Uri Geller.
The Bush Doctrine
G.W. Bush
The Bush Doctrine describes a foreign policy stance adopted by the George W. Bush administration and primarily constructed by neoconservative hawks like Richard Perle and Paul Wolfowitz and the “think tank” known as Project for the New American Century (PNAC). While the Bush Doctrine is a little (but only a little) more complicated than a doctrine of preemptive warfare, it has four primary features: unilateral action in place of cooperative action or consensus building (because we are the John Wayne of Nations, naturally), attacking countries that harbor terrorists (which, considering terrorism is a tactic, essentially means whomever the administration wants to attack and can even remotely paint with a broad brush), preemptive warfare and promote (ironically) democratic regime change (which the last time I checked was interfering with the sovereignty of a foreign nation in addition to being next to impossible to impose by external force given the nature of the term “democracy”). Perhaps not so coincidental, Jeb Bush was a signatory to the original statement of principles issued by PNAC. However, for the purposes here, it is the preemptive warfare component of that disastrous doctrine that is relevant. Citing Enoch v. State, No. 1D10-3443, July 27, 2012 and the Bush Doctrine, attorney Robert Berry has requested a “Stand Your Ground” hearing to clear his client William T. Woodward of the charges against him in the fatal shooting of two of his neighbors and the severe wounding of a third man.
The Case of William T. Woodward
Defendant
A neighborhood feud culminated in a “preemptive strike”.
At 12:30 AM on Sept. 3, 2012, police arrived to 1950 Smith Drive in Titusville, Florida to find that William Woodward had snuck up on his neighbors and shot them while they were having a Labor Day barbeque. The incident started with a fight over an allegedly stolen roll of duct tape before exploding into gunfire. In the aftermath, Gary Lee Hembree dies on the scene and Roger Picior later died from their injuries. The third victim, Bruce Timothy Blake, survived. He had been shot sixteen times.
As with many such situations, this was the result of ongoing conflict. Before the shootin, police had responded numerous times to the ongoing dispute. Woodward and Hembree even went to court before Judge John D. Moxley, who did not issue an injunction or any other court orders. In the motion filed by Woodward’s attorneys, it says that in the hours prior to the shooting that Hembree, Picior and Blake were yelling at Woodward, calling him names and saying “Come on boys. We’re going to get him. We’re going to get him, all three of us.” This kind of behavior had been allegedly ongoing for over a month. The question is was this an imminent threat a reasonable person would take as a threat imminent of death or necessary to prevent the imminent commission of a forcible felony. Stealing a roll of duct tape in and of itself is not a felony. Insofar as imminence is concerned though, there is no concrete legal definition. As Assistant State Attorney Wayne Holmes explained “As with many things in not only the law, but life in general, you’ve got to have a certain amount of flexibility. [. . .] There’s a certain amount of ability to take the facts, whatever they may be and apply it to that law. Sometimes it fits perfectly; sometimes it doesn’t fit at all.” Does this seem to fit? Woodward’s attorney Robert Berry told Florida Today that “[he thinks] legally that term has sort of been evolving especially given changes of our government’s definition of ‘imminent. It’s become more expansive than someone putting a gun right to your head. It’s things that could become, you know, an immediate threat.” [emphasis added]
Did the definition of the word imminent change with the Bush Doctrine?
According to OED, “imminent” means “about to happen”. “Could” as the past tense of “can” means “used to indicate possibility”. One is a statement of probability, the other a statement of possibility. Likely versus might. I don’t think the meaning of the word changed, but that there are those with a vested interest in changing the definition in a polar and nonsensical manner. Keep that in mind the next time you hear a politician use the word “imminent”. You have been and will continue hearing that word a lot from politicians in days recently past and in the near future.
Did the original common law doctrine of self-defense need to be changed at all?
I don’t think so. It served its purpose and it served it well. Those acting in reasonable and proportionate self-defense did not go to prison for their actions.
Can a questionable national foreign policy stance be used to bolster an affirmative defense or a serve as an excuse for exculpation in a “Stand Your Ground” hearing over an individual’s – not a state’s or Federal – actions?
Unlikely, but it illustrates the common macho/cowboy ideals behind such “thinking”. However, the cloudy and certainly propagandized distortion of language used in formulating a poor foreign policy stance neither translates into either a semantic drift in the English language nor a properly asserted affirmative defense or exculpation of an individual’s actions. As Melbourne, Florida attorney Kepler Funk said “it was ‘valid’ that Woodward would want an independent jury to make this decision rather than a judge, but felt it was unlikely the court would convene one for this pretrial hearing. ‘It’s novel for sure, and I’m all for thinking outside the box, so I commend him for that. I don’t know the court’s going to grant the motion though.”
Is what’s good for the goose good for the gander?
Is what’s good for the goose not good for the gander?
What do you think?
Source(s): WESH.com, Raw Story, FloridaToday.com, The Daily Mail (UK), PBS, The Nation (1, 2), Enoch v. State, No. 1D10-3443, July 27, 2012. (FindLaw), ALEC Exposed, Jeb Bush photo by Gage Skimore, Oxford English Dictionary and Wikipedia (various references).
~submitted by Gene Howington, Guest Blogger
pdm,
Very interesting, but not terribly shocking. I know that in the 30s that Germany was probably the powerhouse player in the European movie industry. That they’d respond to Hollywood in that protectionist way illustrates both their fascist political and economic ideals. It does, however, explain some of the coming backlash in Hollywood. While they had generally avoided addressing the problems in Germany (and Italy), by 1940, Hollywood was somewhat on-board with the idea that Hitler, Mussolini and fascism were bad. Once Chaplin dragged the Hollywood establishment over the hump by making The Great Dictator (his most profitable movie) some ten years after the release of All Quiet on the Western Front, the kid gloves came off and a strongly Jewish and more importantly for profit film industry began to attack Nazism in earnest. If they could offset foreign losses by domestic gains, why not? But in 1930, I can certainly understand why people like Mayer bent to such German demands. Thanks for relaying that on. I’ll try to catch that show online.
Gene,
OT but right up your alley….
Just heard a program on “On the Media” on NPR (9/8) about Hollywood cooperating with the Nazis in censoring their films (including All Quiet on the Western Front) under the threat that Hollywood films would be banned from the very profitable German market. Once financial laws were introduced, the studios even produced film that was used (in the German market) for propaganda and WORSE their profits had to be invested in German companies. The program made a chilling comment…”Louis B Mayer: war profitier”. Fascinating and a bit of jaw-dropping history regarding propaganda.
John,
“The ‘common law doctrine of self-defense ‘ was NOT working, it sounded great in theory, but people just trying to defend themselves were ending up in court, if not in criminal proceedings, then civil suits.”
I suspect your opinion that it was not working is not based in any kind of evidence such as has been presented in this thread. You also missed where I said this:
“That relates back to this story precisely in the faulty logic used to distort the very functional common law doctrine of self-defense into a non-functional rationale for vigilante behaviors. The only part of the Castle Doctrine and Stand Your Ground that has a remotely rational basis as it relates to justice is that if one’s actions are excused and mitigated by the proper assertion of common law self-defense, I think you can make a good argument for either limiting or eliminating their potential civil liability. Other than that, I think it plays into the neocon strategy of creating or exacerbating situations that play into their “privatize everything for personal profit” agenda and to do so at any cost. What’s a statistically significant increase in “justifiable homicides” under the new rules if it helps them sell the idea that private law enforcement can do a better job?”
The issue with SYG isn’t civil liability protection. It is the removal of an incentive to avoid self-help and if it encourages vigilantism.
“The fact that William Woodward & lawyers are trying to use anything they can for a defense should have nothing to do with how the law itself is working…unless of course he gets off free using that defense…which he hasn’t so far. (And I don’t expect him to, and I wouldn’t think any reasonable person would.)”
Yeah it does. It gives opportunity to address whether such a law is necessary or does it simply remove the incentive to avoid self-help and encourage vigilante behavior.
“And as you yourself point out this was never even used in the Zimmerman trial, but that doesn’t stop people from constantly trying to tie it in with it, which makes no sense at all on how the law is working.”
Actually, it makes sense as a cultural reference point as the Martin case was the first time most Americans had even heard of “Stand Your Ground”. That Zimmerman’s attorney’s didn’t use it is irrelevant to the issue of whether the law is necessary and whether or not it has a deleterious effect on homicide rates (which right now the evidence says it does).
Elaine,
Oh yes, can’t forget the climate change. 😀
Tony,
You are still not grasping the duty to retreat properly. Perhaps I am not being clear. The duty to retreat is not absolute. I thought that would have been clear by telling you it is based on circumstance but apparently not.
“If a black man refuses to leave a restaurant because a racist threatens him with violence, is the black man committing a crime?”
Not per se. As I said, the duty to retreat is not absolute. If the black man was there rightfully? No. If the restaurant was hired out to a private party and he was crashing it? Yeah, he does.
“Should protesters on a public street or campus have to dissipate because some hater threatens them?”
Again, it goes to there right to being there. Properly permitted and in a public space? Nope. If they get on my lawn? Yep.
All SYG laws do is remove the incentive to avoid self-help remedy, Tony.
Let’s revisit the park. What makes B’s action criminal is the disproportionate response coupled with failure to retreat. The very first element is “reasonable force”. The elements work with each other, not in a vacuum. If B had fought not to kill, but merely to disable/contain A – which any reputable martial art trains you to do long before they train you to kill – there would have been no problem. If B had fought back as above and – as can happen – A accidentally died (say he landed on a stub of pipe when thrown to the ground and broke his neck) – still no problem although the prosecution is still probably going to press for manslaughter but a good defense attorney is going to paint a picture of reasonableness based in part on B’s skill at discerning lethal from non-lethal force. In my initial example, the problem was unreasonable force and a failure to retreat.
Does that clear things up?
Also, you take a scenario as presented, not as you want it to be.
We will see what the judge, prosecutor and/or jury does….. In Florida they have a way of blowing even a good case…..
Bron 1, September 7, 2013 at 7:10 pm
Dredd:
…
But [“they” neoCons?] give it to the mother of 3 who is working 2 jobs and taking night classes, they dont give it to a crack whore. But the money is theirs and that is their choice, if you want to help the crack whore, well it is still a free society.
=======================================
Another mythical neoCon fantasy writhing in Bron’s cultural amygdala once again.
I told you it is hard work being an apologist for Ayn Rand and her fellow pharisee lovers.
NeoCons are the war whores who give most “charity” (the national treasury) to war profiteers and banksters.
To them, “charity” is a code word for plunder.
They think they should always provide the nation with the most holy pimp in chief.
But when the people don’t vote that way the neoCon’s only hatred stronger than their hate for the common good comes out.
Bron 1, September 7, 2013 at 7:10 pm
Dredd:
“We owe nothing, she insists, to anyone, even to members of our own families. She described the poor and weak as “refuse” and “parasites”, and excoriated anyone seeking to assist them.”
I have read many/most of her writings and to and to my knowledge she has never said that people are not free to give to charities or help other people if they so desire.
…
====================================
Straw man diversion.
I did not mention the word “charity” nor the freedom to give to charities when I quoted a well-known observer writing in a well known worldwide publication.
If you can’t discern Ayn Rand’s take on it, if you don’t know, if you just missed it, but and therefore choose to fantasize one instead, feel free to create your own delusions as she did.
But being the one to have to re-brand Ayn Rand is hard work, and it will be as successful as the Teflon Vagina Juice dood’s mental meanderings into yet another swamp of vagina myths.
Gene: Long before I had any martial arts training I was taught by life to stand up to bullies. From the schoolyard to the city parks to street corners and bus stops, bullies get territorial and would drive others away by intimidation and verbal threats of violence.
In your conveniently constructed example, the bully dies. In MY more realistic example drawn from actual experience, I would be driven from the park unfairly and denied a public service, along with anybody else that wanted to use it, because it has become the de facto property of bullies that can use threats of violence to drive others away.
It is not just a matter of my “hurt feelings,” it is a matter of a public good being denied to me and my family and the families of others because we have a legal obligation to retreat instead of remain where we have a right to be. That is unfair, and should NOT be a part of the law, traditional or otherwise. My right to sit at a picnic table in the park should not be nullified by somebody committing assault by intimidation.
I should not be permitted any preemptive assault, I think that is obvious, but neither should I be required to leave a place I have a right to occupy. That is not macho posturing, it is not about hurt feelings. If a black man refuses to leave a restaurant because a racist threatens him with violence, is the black man committing a crime? Should protesters on a public street or campus have to dissipate because some hater threatens them?
Any law that requires me to surrender any right because someone (with no official power) threatens me with violence is a bad law.
bRON 1, September 7, 2013 at 6:57 pm
dREDD:
Sorry Dredd, you arent right on this. Rand is not the mother of NeoConservatisim.
It was Leo Straus.
==============================
No, he was the daddy.
You have to do a paternity test on the ideology.
To them, “the common good” is code for “whatever pleases the elite 1%.”
Neoconservatism is the religion of the 1% and their vassals.
The ‘common law doctrine of self-defense ‘ was NOT working, it sounded great in theory, but people just trying to defend themselves were ending up in court, if not in criminal proceedings, then civil suits.
Even if they had a clear case, they ended up broke fighting baseless lawsuits.
The fact that William Woodward & lawyers are trying to use anything they can for a defense should have nothing to do with how the law itself is working…unless of course he gets off free using that defense…which he hasn’t so far. (And I don’t expect him to, and I wouldn’t think any reasonable person would.)
And as you yourself point out this was never even used in the Zimmerman trial, but that doesn’t stop people from constantly trying to tie it in with it, which makes no sense at all on how the law is working.
Gene H. 1, September 7, 2013 at 6:15 pm
Blouise,
Yep. And if you’ll notice, whenever one of us writes about the Kochs or ALEC, that’s almost always instantly.
*****
Don’t forget to add climate change to that list.
I’m kind of glad this issue about SYG was really not boiling over here where I live. Ours is more common law based but there have been incidents where some prosecutors in Western WA go after those who claim self defense where Eastern WA prosecutors never would have. But it is more or less fairly rare.
Our statutory law has a presumption of intent to do harm, that is if a person enters a dwelling unlawfully by force it is presumed by statute the burglar intends to harm the homeowner, therefore the homeowner is essentially handed more leeway to defend themselves. Yet, our state doesn’t give much leeway to two assailants bent on throwing out all reason and simply wanting to harm the other.
I will say that for the most part our system works decently in my state.
It would have taken a lot less space if you just skipped to “I don’t really understand”, Squeak.
While more study certainly wouldn’t hurt as base data on justifiable versus non-justifiable homicide is hard to find as justified homicides tend to be underreported or not reported at all in some jurisdictions. Higher resolution base data would produce DID models with even higher confidence intervals. However, Hoekstra and Cheng adequately deal with this matter and fully account for their quite reasonable assumptions. In addition, there seems to be nothing wrong with their difference-in-difference methodology as they adequately account for auto-correlation in calculating the standard errors (all that stuff about placebos). If I see anything that requires absolutely no understanding of statistics to grasp, I’ll be sure to pass it along.
@GeneH:
I would only cite WND if I thought they were right about something. Anyway, thanbk you for the link! I read thru the report. I am not qualified to speak about the logs, standard deviatios, OLS’s and all that stuff. However, there were some things I did understad. First, they were only measuring homicides and non-negligent manslaughter. Second, this is a better phrasing of one problem than was provided on the NPR excerpt, with numbering by me;
Next, I looked for a specific mechanism by which SYG laws could lead to increased homicides could finding this on page 10, which seems logical:
Yet, this does not prove out:
But, by the time you get to page 29, there does not seem to be any correlation between 1-3 above. Hoekstra does mention that #3 could be the reason, but has no direct evidence. Thus, what he seems to have found, if his results are correct, is that the homicide rate rose, but he doesn’t know why.
Thus, while his study was interesting, I was not able to draw any conclusions from it except that by his method, homicides tended to increase for some undifferentiated reason. Either he is correct and they did, or he is incorrect in his method. Which sent me off looking for something easier to understand, Which is here, a state by state map where you can click on all states and look at the murder rate per 100,000 before and after the passage of any SYG laws. From that, it looks to me like most of the dark blue states are down from where they were, as are the light blue states:
http://www.adn.com/2013/07/17/2978420/no-firm-ground-on-whether-stand.html
I think this point needs more study. In the meantime, I am happy to live in a state where I can use my little 5 shot 38 to protect myself, free from unnecessary care and worry.
Squeeky Fromm
Girl Reporter
PS: Sorry it took so long, but one of my favorite TV shows was on.
Blouise,
Yep.
_____________
Sqweaker,
1) Equating the Castle Doctrine laws with the SYG laws is perfectly rational considering they are bundled as approved “model bills” from ALEC.
2) The FBI data they reference claiming it contradicts Hoekstra? Isn’t broken down by state or by homicides excused by SYG or even the traditional common law doctrine. The Hoekstra study specifically considered and fixes data by state, not averages it out and he accounts for state specific effects over time, varying police and incarceration rates,etc. It showed the same trend from both weighted and unweighted data. Averaging out the data over all 50 states without fixing for state specific effects (what the FBI data does) skews the data by incorporating data from states that have not adopted the Castle/SYG laws. They even took into account any variance in data from “justified homicides” reported wrongly as “criminal homicides”. And they still got the same trend.
Anyone who wants to see the Hoekstra study for themselves can look at it here. It’s in .pdf.
The “problems” PJ Media and Howard Nemerov has with Hoekstra’s finding is it doesn’t cater to their confirmation bias that SYG is a good thing. Why do I say that? Because a blog entry from a politically biased source like PJ Media – producers of Tea Party TV and cited by such “reputable” propaganda sources as FOXNews – complaining that research that poops on one of their pet projects is “politicized science” isn’t worth the bits it’s printed with.
Find an academic study by someone with equal or better credentials than Hoekstra that contradicts him or don’t, but don’t waste my time with that low grade swill.
Next you’ll be citing WND.
Gene,
Bent spoons, Gene, bent spoons.
I remember the Police Chiefs Association in Florida also warned the voters about what would happen if SYG was passed and they were right.
@geneh:
I looked up the Nemorov person, and here is what he said regarding the Hoekstra study:
You can read some of the specifics here:
http://pjmedia.com/blog/politicized-science-no-castle-doctrine-does-not-increase-violent-crime/?singlepage=true
Personally, I think there are some conceptual problems and limits with the Hoekstra problem, which luckily you included above, because putting 2 links in one reply invokes the Spam Gods:
Squeeky Fromm
Girl Reporter
Blouise,
That shift in standards from objective to subjective and the data trends showing a significant increase in homicides in states with SYG laws is at the core of why they are wrong in themselves. When you go further to consider the people behind them, they seem downright nefarious.
“The duty to retreat is based on an objective reasonableness standard that is entirely rooted in circumstance.
SYG is based on a subjective fear standard.
You can prove the objective, but not the subjective.” (Gene)
In a nutshell.
Not to mention the fact that subjective fear sells guns which is a neat marketing tool especially when the market has been saturated with “military appearance” assault rifles and since most gun buyers are mainly repeat customers … turn ’em onto handguns.