HB135: Criminal Defense Attorneys Weigh In

by Rick Olson

“Finally, is not liberty the restricting of the law only to its rational sphere of organizing the right of the individual to lawful self-defense; of punishing injustice?” —Frederic Bastiat  

Yesterday, The New Hampshire Union Leader featured a story where, “Lawyers say stand your ground works” Prominent Granite State criminal defense lawyer, Mark Sisti told the Union Leader’s Dale Vincent, “I’m not seeing a downside to the (stand your ground) law.” Rep. Stephen Shurtleff (D) Penacook, is sponsoring HB 135 seeking to eliminate the stand your ground provision passed by the prior legislature. During the hearing for public comment, there was huge opposition to Shurtleff’s bill.

Sisti said the law may deflect violence by making it clear people don’t have to retreat. If anyone could be carrying a weapon, Sisti said, “Why would you bring on a confrontation?”

A Former Prosecutor and defense attorney David Ruoff, could not recall any use of the new law and agrees with Sisti’s assessment of “stand your ground.” Ruoff also disagreed with proponents of HB135 who assert that, current law could cost innocent lives.

“The law makes clear there is no duty to retreat in a public place” and said it can serve as a deterrent.”

“The change was less directed toward jury trials, trying to get prosecutors not to indict and police not to charge.” Ruoff told the UL.

“Stand your Ground” cases are getting a HUGE amount of scrutiny in Florida….and for the most part, that focus remains on Florida. An all out media blitz is under way to denigrate and oppose “Stand Your Ground.” I probably sent WAY TOO MUCH time wading through the accounts the Florida papers provided.  Very frequently, I ran into cases where the media there excluded facts that might suggest a use of force is/was justified.

Sitting down at a keyboard and simply typing, “Stand Your Ground,” renders a search result where the list is decidedly opposed to stand your ground.

“A Florida man invoked the state’s controversial “stand your ground” law after he shot another customer at a pizza parlor who complained that his pie wasn’t coming out fast enough, the Tampa Bay Times reported…” U.S. News on NBC News

‘Stand Your Ground’ Linked To Increase In Homicides (Large picture of George Zimmerman graces the page)  NPR.org

Report: States With Stand Your Ground Laws See More Homicides
‘Stand Your Ground’ Linked To Increase In Homicides  Think Progress Justice

Minister: Latest teen murder shows Stand Your Ground ‘reeks of racism’  MSNBC

Clearly, Florida is the epicenter for SYG laws. For every entry of advocacy in favor of the law, there are twelve against it.  And if one reads the various media narratives, it is very easy to walk away thinking, “Wow, perhaps SYG is a big mistake.” The picture is absolutely compelling when one reads or views the press on it.

But the media knows this. Very few are actually going to drill down into these SYG stories and even attempt to get the publicly-released reports of law enforcement or prosecutors. Several of these cases have been grossly mischaracterized by the media and facts have been cherry-picked to sway public opinion. That is corrupt let alone biased.

When the average apolitical citizen thinks about, “Standing One’s Ground,” that same citizen…a law-abiding citizen, thinks about how the law affects him as a law-abiding citizen. Many find the doctrine of non-resistance and passive compliance to criminal acts against us totally repugnant.

Ordinary folks have a right to their persons, their property and their freedom of movement not subjected to modification because the rest of society permits criminals to run about with impunity preying on whomever they think is a viable victim.  People do not want to surrender their personal property or be forced out of a place they want or need to be, simply because the laws says the force and the might of a criminal should prevail in some false notion of personal safety.

Is it foreseeable that drug dealers and gangsters might hire a lawyer to ply stand your ground in criminal enterprise gone bad? Absolutely! For in every corner, aspect and walk known to humankind, there will always exist an element of trying to, “get one over” irrespective of the context of activity.

SYG start from a point where people are being lawful in their movements, business and affairs; Have a lawful right to be where they are and that the activities that brought them to that place were in fact lawful.

Dealing Drugs is an unlawful enterprise. Being a street gang member engaged in activities typically found conducted by gangs is unlawful. Possessing a firearm during one of these unlawful activities is itself, unlawful.  So why cannot these prosecutors ask the court to not recognize SYG defense in the face of unlawful activities?

Shurtleff, a former U.S. marshal, told WMUR’s Adam Sexton, he wants to be “proactive in stripping a law he believes is unnecessary.”  Representative Shurtleff, in addressing his bill before the committee, spoke in the singular stance for anecdotes given.

The problem is that we don’t conduct our lives in totality as individuals.  We have families…wives, husbands, children and elderly parents….We not only owe, but feel a sense of duty and obligation to protect them. And we are often together in a public place. While Husbands and wives may have the ability to  retreat, that ability for children and the elderly family members is not so clear. On the face of it it seems clear, but in a prosecutorial context who will say with absolute certainty that that clarity exists?

Stand your ground should stay. Despite the overwhelming opposition, I am skeptical the committee will not kill the bill, and the ideologues will vote their own will. Lets hope common sense prevails and the Senate acts as a firewall.


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