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Five years since Florida enacted "stand-your-ground" law, justifiable homicides are up

Billy Kuch is pictured in the hospital after he was shot in 2009. He drunkenly stumbled to the door of the wrong house at 
5 a.m.

Photo courtesy of Billy Kuch

Billy Kuch is pictured in the hospital after he was shot in 2009. He drunkenly stumbled to the door of the wrong house at 5 a.m.

TAMPA — Two men meet at a park one Sunday afternoon in September. One is playing basketball with his daughter. The other has a gun tucked in his pants.

The two men argue about a kid who's skateboarding. The man with the gun tries to enforce the rules. The other man lunges.

The unarmed man takes his last breath in front of his 8-year-old daughter. Two days later, authorities charge the gun owner with manslaughter.

Case closed? Maybe not.

If history serves, the gunman stands a very good chance in court. The case may not even make it to trial.

That's because of Florida Statute 776.013(3), which took effect five years ago this month. The old law gave you the right to protect yourself with deadly force inside your home. The 2005 law gives you the right to protect yourself in a park, outside a Chili's, on a highway — just about anywhere.

You need only to "reasonably believe" that pulling the trigger or plunging the knife or swinging the bat is necessary to stop the other person from hurting you.

Reports of justifiable homicides tripled after the law went into effect, according to the Florida Department of Law Enforcement. Last year, twice a week, on average, someone's killing was considered warranted.

The self-defense law — known as "stand your ground" — has been invoked in at least 93 cases with 65 deaths, a St. Petersburg Times review found.

In the majority of the cases, the person's use of force was excused by prosecutors and the courts.

Proponents say that means the law is working, allowing people to protect themselves without having to ponder legalities in the heat of an attack. You don't have to wait to see how much of a victim you're going to be. You don't have to wait for the first bone to break.

But the law has also been used to excuse violence in deadly neighbor arguments, bar brawls, road rage — even a gang shoot-out — that just as easily might have ended with someone walking away.

Has it cheapened human life?

• • •

Miami's police chief made a prediction shortly before the law took effect:

"Whether it's trick-or-treaters or kids playing in the yard of someone who doesn't want them there or some drunk guy stumbling into the wrong house,'' Chief John Timoney told the New York Times, "you're encouraging people to possibly use deadly physical force where it shouldn't be used.''

Four years later, Billy Kuch got drunk, so drunk that at 5 a.m. one day he stumbled to the door of the wrong house in a look-alike neighborhood and tried to open it, twice.

Before the "stand your ground" law, homeowner Gregory Stewart would have been expected to hunker down in his Land O'Lakes residence, dead-bolt secure, and call police.

With the law in place, he could use deadly force anywhere he had a right to be, provided he felt threatened with death or great bodily harm. He had no duty to retreat from danger.

Stewart left his wife inside with their baby and stepped outside, gun in hand.

Kuch put his hands up and asked for a light.

"Please don't make me shoot you," Stewart said.

Kuch, then 23, says he might have stumbled. Stewart, then 32, told police the unarmed man took three steps forward.

The bullet ripped into Kuch's chest, nicked his heart, shot through his liver, in and out of his stomach, through his spleen, then out his back. He felt like his body was on fire.

Stewart, when questioned by deputies, began to cry. "I could have given him a light," he said.

The days ticked by, Kuch in a coma as his parents waited for word of a trial. And waited. After two months, the Pinellas-Pasco State Attorney's Office decided the shooting was justified and dropped the aggravated battery charge.

Kuch's parents couldn't believe it.

"We're not against gun ownership," said Bill Kuch, 57 and retired from IBM. "But we're against this law that provides someone the right to kill you without prosecution."

Billy Kuch spent more than a month in the hospital.

"The guy is 6-1, 250. I'm 5-9, 165, and I have a 0.3 blood-alcohol level," he said. "Did he really think I was going to be able to take his gun away?"

• • •

Arthur Hayhoe read about Billy Kuch in the newspaper. The executive director of the Florida Coalition to Stop Gun Violence added another file to his growing stack. This shooting wasn't far from his own home.

Hayhoe says the law turns Florida into the Wild West.

"What in the hell is our state government doing passing a law encouraging our citizens to solve disputes with guns?" he said. "This is the right-to-commit-murder law."

Florida was the first of more than 20 states to allow people to defend themselves with deadly force anywhere they had a right to be.

Credit the National Rifle Association. Backed by the influential organization, the "stand your ground" legislation won broad support from lawmakers and praise from then-Gov. Jeb Bush as "a good, common-sense, anticrime issue."

Marion Hammer, the NRA's Florida lobbyist, said the measure was needed to prevent authorities from harassing law-abiding people with unwarranted arrests.

"The law was written very carefully and it means what it says: You have a right to protect yourself," she said.

Drowned out in the debate were the critical voices of law enforcement officials and prosecutors. They worried people would become less sensitive to gun violence and death. They envisioned vigilantism.

After the law took effect on Oct. 1, 2005, a national gun control group launched an ominous advertising campaign warning visitors about "Florida's Shoot First Law."

Hayhoe passed out fliers at Miami International Airport telling tourists to "please take sensible precautions," such as: "Do not argue with local people."

He wrote letters to the editor and started keeping tabs on cases where the new law was applied.

It didn't take long. On Nov. 6, 2005, a Valrico man found himself serving as an unwitting test case.

David Heckman, 65, said he was scared when he grabbed his .38-caliber handgun and wounded his fiancee's ex-husband.

The man had come to Heckman's home, vandalized his car and threatened to break his jaw, Heckman said. He remembers the man taking off "like a skinned rabbit" after getting hit in the thigh.

A jury cleared Heckman of wrongdoing. His defense cost $110,000.

His is one of 35 Florida cases logged by Hayhoe.

"They say this law hasn't made Florida the Wild West," Hayhoe said. "But how many bodies does it take?"

No other group keeps tabs — not the Florida Prosecuting Attorneys Association, not the Brady Campaign to Prevent Gun Violence. That's problematic, because even academic studies of the effects of the law rely on anecdotes.

And Hayhoe's count is incomplete.

• • •

The Times searched major Florida newspapers and found at least 93 cases in the past five years in which the new law was a factor. Those are just the confrontations that made the papers.

In 57 of them, those who used force were either not charged with a crime or the charges were dropped by prosecutors or dismissed by a judge before trial. Seven other defendants were acquitted.

Some people fought off intruders in their homes or businesses, which would have been allowed even before the "stand your ground" law.

The use of force resulted in 65 deaths.

Did the law empower the users of force to shoot? Could the tables have been turned on the shooters? If not for the law, would any of those 65 people still be alive?

How can anyone know?

What is known: Reports of justifiable homicides in Florida have spiked.

For the first half of this decade, the state counted an average of 34 justifiable homicides a year, as few as 31 and as many as 43.

That continued in 2006, the law's first full year.

But the next three years brought these numbers:

2007: 102.

2008: 93.

2009: 105.

The first six months of 2010: 44.

"I have always predicted that they would increase as more and more gun owners learn what they can do with this law," Hayhoe said.

• • •

One of those numbers: Michael Frazzini, 35, Cape Coral, father of two, decorated Army helicopter pilot who served five tours of duty. Now dead.

Frazzini's elderly mother thought a 22-year-old neighbor was disturbing her property. One night in 2006, Frazzini stopped by to check things out.

The neighbor later told authorities that he encountered Frazzini wearing a camouflage mask and wielding what looked like a pipe. The neighbor pulled a knife.

The neighbor's father came out next and, thinking the masked man might attack his son, fired one shot from his .357 revolver into Frazzini's chest.

Frazzini died in his mother's back yard. The pipe turned out to be a 14-inch baseball bat.

The shooter walked away uncharged. A prosecutor said nobody involved in the decision felt good about it. Neither did one of the law's co-sponsors.

"The intent is that you can only use the same amount of force as you believe will be used against you," Lt. Gov. Jeff Kottkamp, then a state representative, said at the time. "It certainly wasn't that you can shoot and kill somebody wielding a souvenir baseball bat."

Maybe so. But there is no provision specifically barring someone with a permit from bringing a gun to a knife fight, let alone to a brawl that starts with fists.

That's just one of the problems with the law, according to an analysis in the January 2009 University of Miami Law Review.

Here's another: In many instances where deadly force is used, there are two witnesses and one of them is dead. That leaves one version of events, from a person motivated by self-interest.

The Times' analysis indicates that the law has provided legal cover not just to those fending off attacks by strangers, but also to those who pull a gun in a storm of machismo and adrenaline.

Fights at house parties and a pool hall. Neighbor disputes. Disagreements at a park.

One of the law's biggest critics is Willie Meggs, the state attorney for six counties in the Panhandle. He says he's a strong believer in gun rights but thinks the law is just another valuable tool for killers. The old law was working just fine, he says. He petitioned the Legislature to address the law last year. Nothing.

"Gangsters are using this law to have gunfights," he said. "That's exactly what this law breeds."

In 2008, two gangs in Tallahassee got into a shoot-out. A 15-year-old boy was killed. A judge dismissed charges against the shooters, citing "stand your ground."

"Before this law, we would have had a duty to avoid that," Meggs said. "I should not meet you in the street for a gunfight."

He says it devalues human life.

Is that measurable?

Asks Peter Hamm of the Brady Campaign: "How many killers getting off scot-free is enough to change the course of society?"

• • •

Without a "stand your ground" instruction manual, it has been up to police, prosecutors, defense attorneys and judges to put the law into practice.

That has left a lot of room for conflicting interpretations about when and how immunity should be applied.

Take the case of Jimmy Hair.

In 2007, he shot a man who attacked him outside a Tallahassee nightclub. Meggs' office accused him of murder. Hair spent two years in jail awaiting trial before an appeals court dismissed the charge.

The NRA's Hammer said he never should have been prosecuted.

"There is nothing wrong with the law," she said. "Some of the state attorneys and law enforcement officers are complaining because they can't just go arrest everybody and sort it out later."

The Florida Supreme Court is being asked to clear up some of the confusion.

This month, justices heard their first "stand your ground" case. An Okeechobee County man says he injured a woman with a broken beer bottle after she first smashed it on his head.

Only issues of legal procedure are before the court. Justices have not yet weighed in on the wisdom of the law, which asks prosecutors to examine something as nebulous as a man's state of mind.

For Heckman, the Valrico man who shot his fiancee's ex in the thigh, its merits are already apparent.

"If I didn't have that gun," he said, "I would have been hurt very badly or I would have been killed."

• • •

What, then, was Trevor Dooley's state of mind when he went to a park in Valrico last month with a gun to confront a skateboarder?

Dooley, 69, had a permit for the gun, and no law bars him from taking it to a park.

Authorities say he shot David James dead.

What was James, 41, thinking when he lunged toward Dooley? What was Dooley thinking James was thinking?

Did Dooley "reasonably believe" that the younger, bigger, stronger man would take his gun and harm him?

Only he knows.

And whether he is punished for gunning down a father in front of his daughter in a park on a sunny Sunday afternoon will more than likely come down to what he says he was thinking in those few seconds before a man died.

Times researcher John Martin contributed to this report. Ben Montgomery can be reached at bmontgomery@sptimes.com or (727) 893-8650. Colleen Jenkins can be reached at cjenkins@sptimes.com or (813) 226-3337.

FAST FACTS

Florida Statute 776.013 (3)

"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."

Justifiable homicide

Reports of justifiable homicides in Florida

200032

200133

200235

200332

200431

200543

200633

2007102

200893

2009105

2010 (through June)44

Source: Florida Department of Law Enforcement

Five years since Florida enacted "stand-your-ground" law, justifiable homicides are up 10/15/10 [Last modified: Saturday, October 16, 2010 8:49pm]

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