When it comes to lax gun laws and frequent gun violence, Florida is an epidemic in itself.1 Editorialists, op-ed writers, and journalists in the state’s own newspapers regularly mock it as the “Gunshine State.”2 The sarcastic phrase is a verbal play on Florida’s official nickname, “The Sunshine State,” adopted by the state legislature in 1970.3 The mockery is well earned. The state’s compliant legislature has been used for several decades as a Petri dish by the gun-mad scientists of the NRA’s lobbying arm, the Institute for Legislative Action (ILA).4
The NRA’s person on the spot in Florida is Marion Hammer.5 Starting as an NRA volunteer lobbyist in 1975, Hammer rose to become the first female NRA president. But Hammer told the Washington Post in 1987 that she was “certainly not” a feminist and scoffed at such women’s initiatives as equal pay for equal work. “That’s their fault,” she said. “No one ever gave me special favors.” She also told the newspaper that her personal arsenal consisted of fourteen handguns, six rifles, two shotguns, and three muzzle-loading rifles.6 Currently an NRA board member, Hammer has been the executive director of the Unified Sportsmen of Florida (USF) for more than thirty years.7 “Organized in 1976, with the assistance of the National Rifle Association,” according to a membership application, USF is “affiliated with NRA as the Florida Legislative affiliate.” Hammer herself “did business” with the NRA in the amount of $122,000 in 2011, according to the NRA. The exact nature of the business was not specified.8
Throughout her career, Hammer has been portrayed as something of a cross between a chain-smoking bulldog and a steely-eyed, uncompromising drill sergeant.9 “Generally, the NRA brings out the redneck good ol’ boys with the gun racks, but when you scratch Marion, she’s no different,” Harry Johnston, a former Florida State Senate president, said in 1987. “She’s a good ol’ boy in a skirt.”10 For decades, this “good ol’ boy in a skirt” has lashed Florida’s legislators—Democrat and Republican, urban and rural alike—into impotent compliance while she rams the most bizarre and deadly “gun rights” laws imaginable through the halls of Florida’s capitol in Tallahassee.
Some have shrugged and concluded that Florida’s inert citizenry gets the kind of weak gun laws it deserves.11 But these virulent ideas—from Florida’s pioneering “shall issue” concealed-carry-permit law to the misshapen monster twins of its “castle doctrine” and “stand your ground” laws—have been injected into the veins of scores of other state legislatures all over the country. The NRA, packaging its poison in the back rooms of a slick and well-funded network of right-wing legislators known as ALEC, the American Legislative Exchange Council, has already pushed two great waves of ill-advised and poorly considered legislation into American life. The first was a nationwide weakening of state concealed-carry laws; the second, a combination of the “shoot first” castle doctrine and the “shoot anywhere” stand-your-ground laws.12
It’s interesting that many rank-and-file police organizations sat out these waves of legislation. Some endorsed them. But a third wave—a mutated form of “self-defense” with law enforcement officers in the crosshairs—may be building. The idea is to grant citizens the right to shoot first, even at a police officer, if they conclude that the officer’s intrusion into their lives is unconstitutional. The disastrous potential of this “shoot cops” third wave has got the attention, and the opposition, of at least one otherwise gun-friendly police organization, the Grand Lodge of the Fraternal Order of Police.13 “Shoot first” may have been OK, even a good thing, when ordinary citizens were being put at risk. But it seems not to be such a good idea when cops are endangered.
The case of concealed-carry-permit holder Humberto Delgado Jr. is an instructive parable about this infectious gun madness. Delgado was pushing a shopping cart full of guns down Nebraska Avenue in the Sulphur Springs neighborhood of Tampa, Florida, at about ten o’clock on the night of August 19, 2009. A few minutes later, he used one of his guns to pistol-whip Tampa police corporal Michael Roberts, then shot him to death.
Just about everyone who came into serious contact over any length of time with Humberto Delgado—including the judge who sentenced him to death on February 10, 2012—concluded that he had serious mental illness. The question Circuit Judge Emmett Lamar Battles addressed at the time of Delgado’s sentencing was not whether he was seriously mentally ill. That was evident. The question was whether Delgado was legally insane.
Florida law presumes everyone to be sane. The burden is on a defendant to prove otherwise. The applicable statute required Delgado to show not only that at the time of his offense he had “a mental infirmity, disease, or defect.” He also had to show that either he “did not know what he . . . was doing or its consequences” or that although he “knew what he . . . was doing and its consequences,” he did not know that what he was doing “was wrong.”14 Judge Battles ruled against Delgado. “The court is reasonably convinced that the defendant was under the influence of an extreme mental or emotional disturbance at the time he killed Cpl. Roberts,” he wrote in his sentencing order. “The court is reasonably convinced that the defendant’s ability to conform his conduct to the requirements of the law was impaired, albeit not substantially.”15
Humberto Delgado was born in St. Croix in the U.S. Virgin Islands. He was a police officer there from April 1996 to October 2000.16 During this period, according to his family and mental health professionals who examined him after his arrest, Delgado began to develop a lifelong complex of paranoid delusions. More specifically, he became convinced that a woman in the Virgin Islands had tried to poison him and that she had influenced a cult of Masons to get him.17 The Masons, he believed, were harassing him, threatening him, and interfering with his work.18 His life spiraled downward after he left the police force. He worked for a while in an oil refinery, but his paranoia—he thought it was the Masons at work against him—ruined that job. His family ticked off some of the manifestations he displayed. “He made his wife and children sleep on the floor because there were demons outside, people in trees and eyes peering through the windows. He wore gloves, walked with a cane and said he was Abel from the Old Testament. He said his kids had goat legs that needed to be cutoff.”19
Somehow, Delgado managed to enlist in the United States Army and served between September 2004 and December 2005.20 Private First Class Delgado was a petroleum supply specialist, fueling aircraft and vehicles. He was stationed at Fort Lee, near Petersburg, Virginia, and at Fort Bragg in Fayetteville, North Carolina.21 But his illness caught up with him at Fort Bragg, home of the Eighty-second Airborne Division. According to an army doctor, Delgado started carrying a pellet gun, a hammer, and a flashlight for self-defense. He thought the rapper 50 Cent was out to get him. Diagnosed by an army psychiatrist as “bipolar with psychotic issues,” Delgado was medically discharged from the Army in December 2005.22 After his discharge, Delgado had trouble finding a job. His girlfriend in North Carolina, the mother of one of his children, told detectives that she kicked him out.23
It was sometime around then that Delgado apparently decided to acquire guns. In November 2006, he was issued a concealed-handgun permit in Cumberland County,24 where Fayetteville and Fort Bragg are located. Sometime later, probably in 2008, he bought at least four guns from Guns Plus, at 1503 North Bragg Boulevard in Spring Lake, near Fort Bragg.25 The nature of Guns Plus is described in the following review, posted on the North Carolina Gun Owners website:
It’s well stocked with both handguns and rifles, although most of it leans toward military style guns. Based on that, if you’re looking for pure hunting stuff, you might be better off going somewhere else, but if you are looking for high-speed, low-drag Soldier of Fortune stuff, this is the place to go. Guns Plus definitely caters to the Ft Bragg community, with a hint toward the Black-Ops wannabes (you know the type). Like previously mentioned, they do carry virtually everything you will need to go out and fight the war on terror single-handedly.26
This “high-speed, low-drag Soldier of Fortune stuff” is exactly what sustains the gun industry’s dimming fortunes today. “The modern sporting rifle . . . platform continues to provide dealers with strong sales, even as the buying frenzy of a couple of years ago has quieted,” Shooting Industry reported in March 2012. The magazine highlighted the strong role that follow-up accessories also play in the assault weapon market. “Manufacturers are introducing new models of the rifle, along with a seemingly endless number of add-ons and accessories. There are magazines and loaders, lights and lasers, slings, multi-rail hand-guards, conversion kits, bipods and rests—the list goes on and on.” One manufacturer’s representative told the magazine, “The AR platform is like Legos for grown men.”27
On the night of August 19,2009, Humberto Delgado was well stocked with the guns he thought he would need to fight his personal terror. He had in his possession a Kel-Tec PLR-16, a Glock Model 17 semiautomatic 9mm pistol, a Taurus Millennium 45 caliber semiautomatic pistol, and a 22 caliber revolver of uncertain make and model.28 The Kel-Tec PLR-16, manufactured in Cocoa, Florida, has been mistakenly identified in some reports as an assault rifle.29 It is actually an assault pistol. Designed to accept the high-capacity magazines of the AR-15 and M-16 assault rifles, it combines the power of a rifle with the concealability of a handgun. As the NRA’s American Rifleman magazine put it in its review of the gun, “You can enjoy all of the head-turning flash and hoorah of a magnum revolver, but with modest recoil similar to that of a 9mm pistol.”30
Delgado had drifted south from North Carolina to live with an uncle in the town of Oldsmar, located about fifteen miles west of Tampa. But his family said he refused to accept the fact that he was mentally ill and had stopped taking his medication because it made him “feel like a zombie.”31 His uncle had thrown him out of the house. Delgado had thus been homeless, probably for about a week.32 Disheveled, his hair a tangled mass of unkempt dreadlocks, he had cleaned out most of a storage locker he rented, put the contents in his shopping cart, and walked all day from Oldsmar to Tampa. Among the items in the cart was a laptop computer. Mental health experts for the defense testified that lack of food and sleep made Delgado delusional by the time he got to Tampa.33
Corporal Mike Roberts spotted Delgado pushing his shopping cart down Nebraska Avenue. It was an area where there had recently been a rash of burglaries. At 9:58 P.M., Corporal Roberts radioed two cryptic phrases to the police dispatcher. “Lincoln 61,” he said. “Signal 80.” The first was his personal identifier, the second signaled his intent to conduct a “field interrogation.” There was relative silence after that, except for a brief, inaudible transmission three minutes and forty seconds later. The dispatcher interpreted that transmission as a sign of distress. Other units were dispatched to the scene, where Corporal Roberts was found, lying on his back.34 He had been shot once. Although he was wearing body armor, the powerful 45 caliber slug had ripped through his shoulder, into his chest, and perforated his heart and lungs.35 At 10:50 P.M., less than an hour after he had signaled his intention to question Humberto Delgado Jr., Corporal Michael Roberts was pronounced dead at Tampa General Hospital.36
The field interrogation had gone terribly wrong, terribly fast. The exact sequence is unknowable, but it appears that at some point within those few minutes, Corporal Roberts may have looked into Delgado’s backpack and asked him about the laptop computer. Delgado tried to run away and Roberts fired a nonlethal, ordinarily disabling Taser gun at him. At least one of the barbed electrodes the gun fires became entangled in Delgado’s dreadlocks instead of anchoring in his flesh. Rather than falling immobilized to the ground, Delgado turned around, and the two men fought. Delgado got the upper hand, pistol-whipped Roberts into unconsciousness, and then shot the officer with Delgado’s Taurus Millennium 45 caliber semiautomatic pistol.37
Responding police officers found Delgado hiding nearby. During a struggle with them, Delgado shouted, “Don’t hurt me,” “I’m sorry,” “I’m crazy,” and “I’m one of you.”38 The next day, investigators opened Delgado’s storage locker. Among other things, they found a 22 caliber semiautomatic rifle with a scope and laser sight, and a Shooter’s Bible, a popular source for gun enthusiasts, a combination gun catalog and reference book.39
There is a final thread to this tragic story. A record was made of Delgado’s statements while he was in a holding cell. Among them were these: “He deserved it. . . . It was self defense. . . . I was scared and I ran when he discovered my guns. . . . He f—violated my rights by going through my bag. . . . He shouldn’t have went through my s—.”40
Later, Delgado had a conversation with a defense psychiatrist, Dr. Michael Scott Maher. “He told me that the police officer searched through his backpack without asking permission,” Dr. Maher said. “Mr. Delgado was afraid that the police officer would misunderstand and react to the fact that he had a laptop computer . . . and guns.” According to the doctor, Delgado reacted with fear and paranoia. “This was confirmation that the officer was after him. He was going to get him. He was going to kill him. He was going to do bad things to him. There was no way out of this situation.”41
As crazy as it may seem, Delgado’s addled expressions of fear and assertion of his rights are precisely the elements of the rhetorical foundation upon which gun rights activists now are building a third wave of dangerous gun laws, this one aimed directly at cops. To understand why it may well succeed, one needs to understand the first two waves of gun laws pushed by the NRA, the role of Marion Hammer, and the logic that propelled the gun industry’s arguments.
The NRA’s first wave gutted laws restricting the concealed carry of guns (and in some states, other weapons, such as blackjacks and knives). Until 1987, Florida, like most states at the time, had a discretionary system for issuing licenses to carry concealed guns, commonly referred to as “may-issue” licensing. Under a “may-issue” system, authorities such as a county sheriff, judge, or local police official have discretion as to whom they grant a license to walk around with a gun tucked out of sight. Such discretionary systems lessen the chance that a mentally disturbed person like Humberto Delgado will get a concealed-carry license. Applicants are generally required to show a good reason for carrying a concealed weapon and to pass a thorough background check.42
Marion Hammer and the NRA were determined to change that. They wanted a system known as “shall-issue” licensing, under which authorities have no discretion. The state must issue a concealed-carry license to any applicant who meets a few specific, minimal criteria. These include being a citizen or resident alien and not having a felony record—or having had one’s civil rights restored after a felony conviction. Perfunctory training, or a substitute for training, such as military or law enforcement service, may be required.
The difference between the two points of view about the advisability of handing out gun licenses on demand was aptly summed up by the Miami Herald in 1987. “Pro-handgun people divide the world into two kinds of human beings: law-abiding citizens and criminals. Anti-handgun people think it consists of many kinds: law-abiding citizens, criminals, mental patients, angry husbands, drug addicts, housewives, disgruntled former employees and so on.”43
The NRA’s gun mill had tried to loosen the concealed-carry law in Florida before 1987, but had repeatedly failed. In 1985, the legislature passed such a bill, but Governor Bob Graham vetoed it. In 1986, similar legislation was bottled up in committee. To make matters worse from Marion Hammer’s point of view, populous urban counties in the southern part of the state had imposed waiting periods on would-be handgun buyers. Two of the counties did so after their residents voted in local referenda for “cooling off” periods.44
That would change in 1987. Robert “Bob” Martinez, a Republican, had been elected governor. State Representative Ron Johnson, a Democrat, introduced another shall-issue bill. Johnson was the kind of man who during a newspaper interview would prop his feet up and cough “a gooey wad of Levi Garrett chewing tobacco into a yellow cup. He does not excuse himself for that.”45 Hammer and the NRA “spent thousands of hours and tens of thousands of NRA dollars” to finally ram their change in law and common sense through the legislature. It also helped that police groups in the state, who had opposed earlier legislation, “pulled the old switcheroo,” as the Miami Herald described their action, and endorsed the NRA’s bills. “If you see a freight train coming,” the cops’ chief lobbyist explained, “do you stand in front of it? Or do you stand aside and grab ahold of it and try to ride it to glory?”46
When the final vote came, Hammer was sitting in the gallery behind bulletproof glass, making sure there were no defectors. Governor Martinez signed the bill into law the day before a delegation from South Florida—the Broward County commissioner, the Palm Beach County commissioner, and a Dade County gun-control activist—had an appointment with him to urge him to veto it.47
At the same time, the Florida legislature attempted to preempt the subject of gun regulation, wiping out the ability of counties and cities to issue sensible regulations. Local waiting periods and other laws and ordinances were intended to be erased, overriding the expressed will of local voters. However, some localities persisted in regulating guns, such as forbidding their carry in public buildings and parks and on beaches, and requiring trigger locks.48 The NRA and some citizens filed lawsuits to stop the local regulation, which according to Hammer was a case of “gun haters” flouting state law.49 In 2011, the legislature complied with NRA demands that the law be tightened, and enacted a sweeping measure that imposed the penalties of fines and removal from office on any local officials who dared regulate guns.50 In the wake of the new law, cities and counties gave up and effectively abandoned gun regulation.51 “We just want local public officials, elected and otherwise, to quit violating the state law and stop trampling the rights of Florida’s law-abiding gun-owners,” Hammer wrote in an e-mail supporting passage of the law.52 Regarding concealed carry in particular, the Florida law states that the legislature “finds it necessary to occupy the field of regulation of the bearing of concealed weapons or firearms for self-defense to ensure that no honest, law-abiding person who qualifies under the provisions of this section is subjectively or arbitrarily denied his or her rights.”53
Such cant about self-defense rights, and its obtuse division between “honest, law-abiding” people and criminals is typical of the gun lobby’s close-minded arguments. In 1987, Hammer dismissed concerns about the risks of vigilantes killing innocent people—such as would allegedly happen in the notorious Trayvon Martin case in 2012—or being shot with their own guns as “hysterical, emotional. If an individual is responsible for protecting himself and his family, he’s entitled to have the proper tools.” In a similar vein, the NRA ran “huge” newspaper ads in Florida, one of which portrayed “a blurred face menacingly encased in a stocking cap and, in bold black type, the question: ‘SHOULD YOU SHOOT A RAPIST BEFORE HE CUTS YOUR THROAT?’ ”54
But this equivalent of sticking one’s fingers in one’s ears and shouting rude noises does not change the reality about the consequences of pumping guns into public spaces, a reality that was apparent within months in Florida. It turned out that in its frenzy to pass the shall-issue package, the legislature had inadvertently made the open carrying of guns legal. This caused an uproar. Another legislative battle ensued under the watchful eye of Marion Hammer and the NRA. The Washington Post provided a picturesque glimpse of the Gunshine State’s shooting scenery in 1987:
In just the days in which the legislature debated closing the open-carrying loophole, a Miami jitney driver was killed by a passenger who argued over a 75-cent fare, a 17-year-old Miamian was severely wounded walking to school by a shot meant for another man, a purse snatcher opened fire at 11 A.M. on a crowded street before police shot him, and a man walked into a suburban restaurant with a gun in his waistband, fought with another customer and shot him to death. In rural Marion County, an 8-year-old was shot in the head by a 10-year-old friend showing off his parents’ pistol. And a 5-year-old was shot dead as his father tried to grab the gun his child had taken from the car.55
This week of gun carnage was merely the precursor of years to come. The NRA’s argument in favor of relaxed concealed-weapons laws rested on three articles of faith: criminals do not apply for concealed-carry licenses, criminals do not receive concealed-carry licenses, and concealed-carry-license holders do not commit crimes. Yet a 1995 review of records obtained by the VPC from the Florida Division of Licensing and the state’s Board of Executive Clemency revealed that hundreds of criminals, convicted of crimes ranging from firearm violations to kidnapping and aggravated rape, applied for concealed-carry licenses in Florida, criminals did succeed in getting concealed-carry licenses, and concealed-carry-license holders in Florida did have licenses revoked or suspended for various crimes, including firearm and drug violations.56
The following year, 1996, Tanya Metaksa, then executive director of the NRA’s Institute for Legislative Action, stuck her rhetorical fingers in her ears and, in another of the NRA’s trademark arguments by false assertion, told a press conference in Dallas that people who got concealed-carry licenses were “law-abiding, upstanding community leaders.” According to Metaksa, “These citizens don’t commit violent crimes.”57 Mounting objective evidence proves otherwise. The VPC has tracked non-self-defense deaths since May 2007 involving private citizens legally allowed to carry handguns. As of June 29, 2012, VPC’s Concealed Carry Killer project found that a total of 462 people had died in such non-self-defense incidents.58 Of these victims, fourteen were law enforcement officers, like Corporal Michael Roberts in Tampa. Since this data is derived from media reports, the only national source of information available, the actual number of concealed-carry killers is likely far higher. And as the reader has seen in earlier chapters, many concealed-carry permit holders commit crimes of armed aggression short of murder. Moreover, directly contrary to Metaksa’s bland assertions about the good character of permit holders, criminal gang leaders “have learned how to structure their crews so that at least one of them can be legally armed. One member of a crew will have a concealed weapons permit, allowing them to be armed.”59
These cautionary facts were swept aside as Florida became a national incubator of gun death and injury. Relaxed concealed-carry laws swept over America’s legislatures. The real force behind this wave was not a citizenry clamoring to lawfully pack heat. It was the gun industry, a force that has never been deterred by the mayhem its products wreak on others. This was evident in Florida within months of the concealed-carry law’s passage. Praising Marion Hammer as “a real American,” John Katon, the owner of the Tamiami Gun Shop, enthused in 1987 that first-time buyers prompted by the new law had boosted his gun sales “an overwhelming 50 percent.”60 The NRA’s Tanya Metaksa was even more blunt in 1996. “The gun industry should send me a basket of fruit—our efforts have created a new market.”61
The gift of a new market was exactly what the industry needed. “As more states pass concealed-carry legislation, we’ll see an increase in handgun sales,” Michael Saporito, of RSR Wholesale Guns, said the year before, when industry reports were gloomy about slumping sales.62 In 1996, Massad Ayoob, a pro-gun writer who specializes in advising dealers on the subject of selling lethal force in the form of handguns, waxed enthusiastic about the gun industry’s gift. “A high point for gun dealers, as well as those who believe in freedom and safety,” wrote Ayoob, “was 1995’s record number of states passing favorable concealed handgun carry legislation. Persons enabled to carry a concealed weapon in public for the first time are willing to splurge to get the right blend of discretion with speed and power. (Some have been known to buy a new gun just to celebrate the permit!)”63
The only problem was that the bloodred NRA tide had not yet washed over every state. Greg Griffeth, owner of the Sportsman Den gun shop in Shelby, Ohio, complained to Shooting Industry in 2002 that Ohio’s lack of a concealed-carry law was holding back his sales of semiautomatic pistols. Griffeth explained, “Smith & Wesson, Taurus and Ruger comprise about 80 percent of my handgun sales, mostly in revolvers. If we could get a CCW law through our state government, our semi-autos would take off.”64 Not to worry. The NRA lobbying machine was on the case. In 2004, pistol sales could “take off” in Ohio after the state’s new concealed-carry permit law went into effect. By then, Shooting Industry triumphantly crowed, “Self-defense products have been and continue to be the heart of the weapons market. Self-defense sells.”65
Ayoob pointed out another important profit center for gun shops, derived directly from concealed-carry laws. “Remember, too, the first-time gun carrier is a walking cluster of ancillary sales: inside the waistband holster for maximum concealment, outside the belt high-ride scabbard for waistbands too tight for IWB (“inside the waistband”), fanny pack, spare magazines or speedloaders, a secure firearm storage unit, and of course, the best premium-grade defensive ammo money can buy.”66 In fact, many experts advise that gun shops can make more money from the sale of accessories to “walking clusters” than from guns. “Accessories are where you make your profit,” advised gun store owner Mike Goschinski in 2003. “If you’re selling handguns but not selling accessories, you’re doing a lot of work for nothing.”67
“Customers who spend several hundred (or, in some cases several thousand) dollars on a handgun are usually willing to drop 40 or 50 extra bucks to buy something extra for their ‘new baby’. . . Now’s the perfect time to cash in,” Shooting Industry suggested to retailers.68 By 2003, Ayoob noted a marked change in gun enthusiast garb. “For generations, retail firearm dealers have found hunting clothes and other outdoor garb to be a profitable sideline,” he wrote. “Today’s gun clothing has been augmented by garments expressly designed to discreetly conceal defensive handguns.”69 In 2006 the same monothematic writer suggested that “many of your customers may not realize their ‘wardrobe of firearms’ should include a ‘winter ensemble.’ If that’s the case, do them a favor by bringing it to their attention. And, since you are their ‘gun-wear store,’ you’ll be helping your bottom line, also.”70
Another profitable sideline for gun store owners was mandated by the relaxed concealed-carry laws the NRA husbanded through compliant state legislatures. This was the requirement for training by—no surprise here—NRA-certified instructors. In Roseburg, Oregon, Curly Jensen, a certified NRA instructor and owner of the Gunner’s Club gun shop, offered such classes and told Shooting Industry in 1996 that “a high percentage of those taking the classes buy a handgun, or at least ammunition and accessories, like holsters.”71 As usual, Ayoob had advice on the subject. “Firearm training is something your customers want and need, even if you or your staff don’t have the time or the facilities,” he wrote. “Likely, there are competent trainers within driving distance of your store. They’ll do the training and be happy to pay a commission to you for the referrals or give your customers a discount.”72
An idea of how much fresh blood concealed-carry laws have pumped into the anemic gun industry is demonstrated by Florida’s experience. Before the new law, 16,000 Floridians were reported to have concealed-carry licenses.73 As of August 31, 2012, Florida had dispensed 1,151,537 gun licenses, of which 963,349 were run-of-the-mill concealed-carry licenses. The remainder were for various specialized occupations, such as private investigators.74 Add to this growth the increased sales in all of the forty-one states that as of February 2012 have shall-issue laws similar to Florida’s, and it’s clear that the NRA’s gift to the gun industry was a big one, a gift that keeps on giving profits to the industry while taking innocent lives.
If this boom from the NRA’s concealed-carry push made gun retailers happy, gun manufacturers and importers were tickled pink. Designing and marketing new lines of small but powerful “pocket rockets” in high calibers for the new concealed-carry market boosted manufacturers as well. This factor explains why the industry has never thrown its weight behind the “open-carry” movement. Just about any gun will do for open carry. A handgun can be stuck into a waistband or shoved into a holster. A long gun can be slung over the shoulder. No special gun size or design is required for carrying a gun openly, no accessories are needed, and no specialized clothing need be worn. Thus, open carry offers few new, if any, profitable marketing ploys to tempt Ayoob’s “walking cluster” gun buyer.
A Brazilian handgun manufacturer, Taurus, was one of those who caught the new wave. (Many foreign gun manufacturers export to the United States guns that they cannot legally sell to civilians in their own countries.) Taurus “began seriously pursuing the U.S. firearms market in 1982” and within two years “had established a beachhead in the American market.”75 In 1998 the company announced its Millennium handgun series, “notable for its extremely compact size that almost literally fits in the palm of one’s hand.”76 Two years later, Shooting Industry’s self-promotional “Academy of Excellence” gave Taurus its Manufacturer of the Year Award.77 And in 2001 the company’s 45 caliber Millennium model “joined the family . . . a signal achievement of firearm design and engineering, placing 10 man stopping rounds of .45 ACP into a pistol that is more compact than most 9mm handguns.”78
In 2009, Humberto Delgado shot Corporal Michael Roberts to death with a single shot from a Taurus “signal achievement of firearm design and engineering.” Corporal Roberts, however, was not the first police officer to have been shot to death in the United States by a palm-sized 45 caliber Taurus Millennium with its “10 man stopping rounds.”
At about 1:30 P.M. on September 23, 2008—less than a year before Corporal Roberts was killed in Tampa—a Philadelphia police officer, Patrick McDonald, pulled over a car with a broken taillight. One of the occupants, twenty-seven-year-old Daniel Giddings, jumped out and ran. Giddings had a 45 caliber Taurus Millennium in his waistband. He had been released from prison about a month earlier and was already wanted for violating his parole and assaulting police officers. McDonald gave chase, caught Giddings, and the two men fought. In the course of their struggle, they exchanged gunfire. Like Corporal Roberts, Officer McDonald was killed by a powerful 45 caliber round fired from a Taurus Millennium handgun. Just as in the case of Roberts, the huge 45 caliber slug blasted through McDonald’s shoulder and pierced his heart.79
Connecting the dots between weakened concealed-carry laws that have pumped millions of handguns into the United States and the resulting death and injury was not something that NRA executives Marion Hammer, Tanya Metaksa, and Wayne LaPierre; handgun manufacturers and importers; or anybody else in the gun lobby were likely to do. They would continue to divide the complex human world into “law-abiding citizens” inside their smugly righteous walls and “criminals” outside.
But there was a cloud over this Happy Valley and its neat division between law-abiding good guys and criminally violent bad guys. That cloud was raining on the gun market’s growth potential. As previous chapters have documented, most people in America just aren’t interested in having a gun around the home, much less inside (or outside) their waistbands. The gun lobby’s challenge has been to persuade more and more Americans that they need to carry a gun in order to be safe. But there were also legal flies in the gun industry’s marketing ointment, its dream of bringing back to modern streets the mythical gunslinging ways of the Old West.
Putting aside the moral questions inherent in going about armed—daring and perhaps hoping for violence to happen—there are long-standing, wisely developed limitations in law on killing other people, even in self-defense. Over the centuries since the Middle Ages, the English common law upon which American law is based has recognized that one has the right to defend oneself, including killing another in extreme cases. But the interests of a civil society have required that one asserting self-defense prove that a reasonable person would have feared death or serious bodily injury in the circumstances at issue. The common law has also required that—even in the face of such a reasonably perceived threat—one must avoid violence if possible. For this reason, the general rule has been that “one should first try to disengage or retreat, if attacked, which was often a prerequisite for a claim of self-defense.”80 This rule “places a priority on human life. It also reflects the notion that a person would rather retreat than kill their attacker and have to live with the consequences or, worse, accidentally kill an innocent bystander.”81
An exception to this general duty to retreat—when one is attacked in one’s own home—has been long recognized. In 1914 Benjamin Cardozo, then a judge on the New York State Court of Appeals and later an associate justice of the U.S. Supreme Court,82 stated this exception in People v. Tomlins, an often quoted New York case in which a man killed his own son during a domestic altercation. “It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.”83 This exception has historically been known as the castle doctrine, referring to a statement by Sir Edward Coke, an English jurist in the seventeenth century, that “a man’s home is his castle.”84 Even this castle doctrine, however, was not without limit. Judge Cardozo also noted in the classic case on the subject, “A man who is himself the aggressor or who needlessly resumes the fight, gains no immunity because he kills in his own dwelling.”85
In 2004, a legal advice column in the Miami Herald summed up the Florida law of armed self-defense, both in the home and elsewhere, as it stood at the time. The law then was consistent with the traditional common law.
With reference to when a person is justified in the use of deadly force, Florida Statute chapter 776 permits it “only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”
Usually a person is required to retreat in the face of threatened violence and avoid confrontation if possible, including when in their car. And they may not use lethal force after a crime has been completed or the criminal has surrendered. But the “retreat rule” gives way to the “castle doctrine” when one is attacked within their own home or place of business and allows the use of deadly force, if necessary86
The pivotal points here were the requirement of the defendant to prove reasonable fear, the duty to retreat and avoid violence if possible, and the precondition of being actually attacked in one’s home before the castle doctrine’s right to stand one’s ground applied. Even today, after decades of Florida’s lawmakers weakening gun-control laws, Florida licensing authorities ironically—one might fairly say hypocritically—urge caution on their website:
Applying for a license to carry a concealed weapon or firearm for self-defense is a right of law-abiding Floridians. However, you must remember that a license to carry a weapon or firearm concealed on your person does not authorize you to use that weapon. Use of a concealed weapon or firearm is regulated by other provisions of Florida law.87
Those other provisions of Florida law as they existed in 2004 were exactly what the industry’s “gun rights” alliance set out to gut. Hammer and her allies appropriated the language of the tightly drawn and sensible exceptions to the general common-law duty to avoid violence—the traditional castle doctrine and its limited permission to stand one’s ground when attacked in the home—and distorted it into ideological slogans. Turning the law on its head, they twisted the terms castle doctrine and stand your ground from carefully crafted restrictions on lethal violence into mindless rhetorical banners that encourage carrying guns and using them to shoot people. Hammer once again badgered the Florida legislature into lowering the gun violence bar as a way into expanded handgun markets.
She did it by inventing a problem that did not exist.
According to Marion Hammer and her minions, law-abiding citizens who shot bad guys were being hounded by prosecutors and charged with criminal offenses while felons walked free. “Florida licenses law-abiding people to carry concealed firearms when they’re out on the streets for lawful self-protection, but the courts have been taking away their right to protect themselves by imposing a duty to retreat,” Hammer claimed in 2005. “So if a rapist tries to drag a woman into an alley, under current case law, and jury instructions that a judge gives a jury, that woman is supposed to try to pull away and run and could be chased down and stabbed in the back or shot in the back.”88
The fact that neither Hammer nor anyone else could cite a single case in which such a prosecution had ever happened to any self-defender anywhere in Florida did nothing to deter the next wave of laws hatched in the Florida gun violence incubator.89 The mutant forms of the venerable castle doctrine and stand-your-ground laws written into the Personal Protection Bill Florida enacted in 2005 bore little resemblance to the common-law originals. The new law eliminated the duty to retreat to avoid violence. It also:
• Replaced the common law “reasonable person” standard with a “presumption of reasonableness” or “presumption of fear” in many instances. This shifted the burden of proof to prosecutors, who are required to prove a negative.
• Extended the right to deadly self-defense from the old castle doctrine to areas outside the home. If a person’s actions are covered by the “presumption of reasonableness,” that person can legally use deadly force anywhere that he or she has a right to be.
• Broadened the circumstances in which one can legally respond with deadly force to include those in which only property is threatened and the threat is not imminent. This was a significant change from the common-law standard that only an imminent threat to a person justified deadly force.
• Provided blanket civil and criminal immunity for a person using force as defined and permitted by the new law.90
The Palm Beach Post summed up the proposed new Florida law in 2005, as bills made their way through the Florida House and Senate:
The bills eliminate the “attack” requirement. They presume that if someone is illegally entering your home, that person has the intent to cause death or bodily harm. The current law requires that intent to be proved. The bills also would extend the Castle Doctrine to an attached porch or someone’s vehicle, and to a lesser extent to a situation in public where someone fears for his or her life. But the bills do not extend the right to use force to shooting a police officer who has identified himself as such.91
Marion Hammer’s reading was more expansive. “The bill removes the duty to retreat if you’re outside your home or in a public place,” she explained. “It only allows you to stand your ground and meet force with force, if you reasonably believe that force is necessary to defend yourself against death or great bodily harm.”92 State Senator Steve Geller, a Democrat from Hallandale Beach, argued against the bills. “We never said . . . that the street is your castle,” he said. “I don’t think 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.”93 But in a masterpiece of circular reasoning, Wayne LaPierre, the NRA’s executive vice president, told the New York Times that the new law sent a good message to Florida’s good citizens. “If they make a decision to save their lives in the split second they are being attacked, the law is on their side,” he said. “Good people make good decisions. That’s why they’re good people. If you’re going to empower someone, empower the crime victim.”94
The new law twisted the common-law castle doctrine into a “shoot anywhere” rule—not only did one not have to retreat to avoid attack inside one’s home, one no longer had to retreat from anywhere one had a right to be outside the home. And by legislatively decreeing the presumption of reasonable fear, the law turned the right to stand one’s ground inside the home into the right to “shoot first” virtually anywhere. The clear legal terminology of the common law was reduced to vague rhetorical slogans cast about by “gun rights” advocates. “Castle doctrine” and “stand your ground” came to mean virtually the same thing: the “right” of “good people” to shoot first anywhere they happened to be.
Florida’s prosecutors were alarmed. The Palm Beach County State Attorney’s Office pointed to a high-profile 2003 case in which a teenager had been shot and killed by a homeowner while playing a door-knocking prank with friends on his sixteenth birthday. The homeowner heard the teenager trying to tie a fishing line to the door knocker, got his 40 caliber handgun, and shot the youth to death—in the back. The homeowner pleaded guilty to a charge of manslaughter and was sentenced to spend fifty-two weekends in the Palm Beach County Jail and ten years of probation. “If this bill were in effect back then, that case would not be prosecuted,” a spokesman for the local state attorney said prophetically.95
Hammer brushed such warnings aside and lashed Florida’s lawmakers into line. This time, she had the help of Democrats who were trying to align themselves with Republican values. “While perhaps [the bill] may go a little too far, it sends a message that Democrats believe in those same core values,” Democrat Representative Will Kendrick, a co-sponsor of the House version of the bill, said. “The majority of Democrats have gotten away from basic principles. They’ve realized they were way out in left field. I think some of them voted for this one in an attempt to get back to a balance.” Another Democrat, Representative Richard Machek, explained that he was in favor of the home and vehicle portions of the bill but opposed the part that allowed standing one’s ground in the streets. “You don’t have an option,” Machek said. “The problem was, if I was voting against it, I was voting against protecting yourself in your home. I hope I did the right thing.” Representative Dan Gelber said simply, “The NRA is a very powerful lobby and a lot of members don’t want to cross it.” Even State Senator Steven Geller, a Democrat who led the charge against the bills, ended up voting for them.96 “Voting against the Castle Doctrine, which is wildly popular and which does make sense . . . would be seen as, ‘Those Democrats are soft in [sic] crime,’ ” he said.97
Newspapers and other observers outside the daisy chain of “gun rights” lobbyists and compliant legislators were disgusted. The Bradenton Herald, for example, raked those who caved in to Hammer and supported the new law. It was “another case of overreach by the National Rifle Association, and another example of cowardice by lawmakers who put political ambition ahead of public safety,” the paper editorialized. “Afraid of being labeled soft on guns, most legislators gave the NRA a pass in ramrodding the bill through the Republican-controlled Legislature. Most law enforcement agencies remained neutral, also aware of the power of the gun lobby.”98
One of the bills’ Republican sponsors piously denied that the matter had anything to do with gun sales, claiming that he didn’t even own a gun himself. “But what I want is for the criminal to know that every single door he breaks in, those people may have a firearm and they absolutely have the right to protect themselves,” he said. “I’m not trying to sell guns, I’m trying to empower the freedom of our people.”99 Two months later, Shooting Industry had a more sanguine view of the impact of the new law on the gun industry’s prospects.
Self-defense is an important segment of the industry’s market—and it continues to grow. . . . Most recently, Florida grabbed the attention of the nation when Gov. Jeb Bush signed into law a measure that allows citizens to use deadly force outside of their homes “if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm.” There also has been an upsurge in self-defense related sales in recent years as more citizens throughout the nation “take more responsibility for their own safety.” That has translated into increased development and production of self-defense firearms and related products—and increased sales for gun dealers.100
The NRA took its new present for the gun industry on the road. Executive Vice President Wayne LaPierre told the Washington Post that the new Florida law was merely the “first step of a multi-state strategy.” Giving Hammer credit for conceiving the new law, LaPierre promised to use the model of the concealed-carry wave to push the new shoot-first-anywhere wave. “There’s a big tail-wind we have, moving from state legislature to state legislature,” he said. “The South, the Midwest, everything they call ‘flyover land,’. . . we can pass this law in that state.”101 He told the New York Times that the NRA planned to introduce the new law in every state. “We will start with red and move to blue,” he said. “In terms of passing it, it is downhill rather than uphill because of all the public support.”102
What LaPierre did not mention was that “all the public support” was to be generated by the American Legislative Exchange Council (ALEC), a secretive network of conservative state legislators who often overrode public opinion and prosecutorial judgment against the law. “ALEC is essentially a corporate bill factory,” Anna Scholl, executive director of a Virginia advocacy group said in 2012. “ALEC writes model legislation that is designed to increase corporate bottom lines, and then they turn around and hand it off to state legislators to take it home and introduce it.”103 The NRA is one of ALEC’s funders, among others including organizations linked to the Koch brothers. At a secret August 2005 meeting in Grapevine, Texas, Hammer asked ALEC’s “Criminal Justice Task Force” to adopt the Florida castle-doctrine bill as an ALEC model bill. In September 2005, the bill was adopted by ALEC’s National Board of Directors. State legislators linked to ALEC then set about introducing this cookie-cutter bill.104
Like the concealed-carry relaxation, Florida’s new law swept over other states. State after state fell into line, as sponsoring legislators pretended to find flaws in state laws of self-defense, then introduced ALEC’s legislative cookie as the remedy. In 2006, for example, Arizona governor Janet Napolitano—the very politician who would later oversee the spending of trillions of dollars on “homeland security” and the “war on terror”—signed a bill into law over the objections of state prosecutors. “She believes in the fundamental right of self-defense,” her spokesperson said. “And the law still requires the defendant to be in imminent peril of death or serious physical injury.”105 By 2007, Shooting Industry—in an article headlined “Self-Defense Unleashed! No Season on Sales, No Limit on Profits!”—could tell gun dealers, “If you’re not cashing in on self-defense sales, it’s like running a bait-and-tackle shop—and not selling hooks and sinkers!”106
When ALEC’s role became known in 2012, after an estimated thirty-two states had passed some or all of its model law, a number of its corporate sponsors—including Coca-Cola, PepsiCo, and Kraft Foods—bailed out of the organization. The notorious Trayvon Martin case suddenly made being associated with the right-wing legislative string-pullers toxic.107
But the awful damage had already been done, just as had been predicted by the law’s critics. “The bill. . . would define self-defense so broadly as to impose few restraints on individual behavior in the heat of an argument,” the South Florida Sun-Sentinel warned while the law was being considered in Florida. “It would give Floridians the impression that they have a quick-trigger right to violence in many situations that have not resulted in violence in the past.”108
Florida’s law now says a person “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.” And although Hammer and other advocates claim that the new law was simply a technical expansion of the old common-law castle doctrine, the Association of Prosecuting Attorneys, a national group, says otherwise: that it bars the prosecution of criminals. “It’s almost like we now have to prove a negative—that a person was not acting in self-defense, often on the basis of only one witness, the shooter,” Steven A. Jansen, the group’s vice president, told the Washington Post in 2012. Justifiable homicides by civilians have tripled in Florida since the new law was passed, from an average of twelve per year to an average of thirty-six per year.109
John F. Timoney, Miami’s police chief, warned about specific scenarios at the time the law was passed. “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 Timoney said, “you’re encouraging people to possibly use deadly physical force where it shouldn’t be used.”110 The chief was exactly right about stumbling drunks and deadly force—at least two such instances occurred in 2008. In April, an honor law school student in Alabama was killed, and in October a college student in Florida was seriously wounded when, after a night of drinking, each accidentally entered an apartment that looked “identical” to his own but was in fact the wrong place. In both instances, the new “model” law insulated the shooters from prosecution.111 In a similar incident in 2009, a homeowner stepped outside of his house after a drunken youth twice mistook the house for the one hosting a party he had stumbled away from. The homeowner shot the youth in the chest and seriously wounded him, but he, too, was insulated from accountability by the Florida law.112
The novelist Carl Hiaasen, a columnist for the Miami Herald, was also right. “Every gang-banger in the state should write a thank-you note to the NRA,” he wrote in 2005. “For years, street thugs have tried without much luck to use self-defense as an excuse for their bloody shootouts. Now it’s right there in the statute books: If you get fired at, dawg, you can fire back. Better yet, the law is so purposefully slack that if you even imagine you’re going to be fired at, you can pull out your legally purchased AK-47 and open up.”113 So let it be written, so let it be done. In 2010, a Florida circuit judge ruled that the law insulated two defendants facing murder charges in the case of man who was shot to death with an AK-47. The incident involved a running street battle between affiliates of rival gangs. “What this means, as illustrated by this case, is that two individuals, or even groups, can square off in a middle of a public street, exchange gunfire, and both be absolved from criminal liability if they were reasonably acting in self defense,” the judge wrote. “It is very much like the Wild West. Maybe that is not what was intended, but that seems to be the effect of the language used.”114
Farther west, in Pasadena, Texas, a sixty-one-year-old retiree named Joe Horn saw two burglars breaking into a neighbor’s home in November 2007. The exchange between Horn and a 911 dispatcher, as reported in the New York Times, raised a red flag about the troubling prospect of vigilantism under the new laws—one private citizen acting on his own as police officer, prosecutor, judge, jury, and executioner:
In a low, calm and steady voice, he [Horn] said he saw the men breaking in and asked: “I’ve got a shotgun; do you want me to stop them?”
The Pasadena emergency operator responded: “Nope. Don’t do that. Ain’t no property worth shooting somebody over, O.K.?”
Mr. Horn said: “But hurry up, man. Catch these guys will you? Cause, I ain’t going to let them go.”
Mr. Horn then said he would get his shotgun.
The operator said, “No, no.” But Mr. Horn said: “I can’t take a chance of getting killed over this, O.K.? I’m going to shoot.”
The operator told him not to go out with a gun because officers would be arriving.
“O.K.,” Mr. Horn said. “But I have a right to protect myself too, sir,” adding, “The laws have been changed in this country since September the first, and you know it.”
The operator said, “You’re going to get yourself shot.” But Mr. Horn replied, “You want to make a bet? I’m going to kill them.”
Moments later he said, “Well here it goes, buddy. You hear the shotgun clicking and I’m going.”
Then he said: “Move, you’re dead.”
There were two quick explosions, then a third, and the 911 call ended.
“I had no choice,” Mr. Horn said when he called 911 back. “They came in the front yard with me, man.”
The two men, both undocumented aliens, were found in neighboring yards, both shot dead.115 A grand jury later declined to indict Horn.
Joe Horn’s chilling dialogue with the 911 operator was echoed less than five years later, this time in Florida. And this time, the body lying on the grass was not an undocumented alien or burglar. It was an innocent teenager.
On the evening of Sunday, February 26, 2012, Trayvon Martin, a seventeen-year-old high school junior, walked to a nearby 7-Eleven store from the home where he was staying with his father. The home was in a racially mixed gated community in Sanford, Florida. The young man bought some iced tea and candy and started walking back in the rain.
At 7:11 P.M., George Zimmerman, a resident of the neighborhood and the “neighborhood watch volunteer,” spotted Martin. Zimmerman, armed with a Kel-Tec 9mm pistol, called the police, as he had often done in the past. “Hey, we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy,” he told the 911 operator. “This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining, and he’s just walking around looking about.”
At about the same time, Martin noticed that he was being followed. It happened that he was talking on the phone with his girlfriend, who advised him to run. He did. At 7:13, Zimmerman told the police operator, “S—, he’s running.”
A beeping sound is heard at this point on the 911 tape. Zimmerman had opened the door of his vehicle. He went after Trayvon Martin on foot.
“Are you following him?” the operator asked Zimmerman.
“Yeah,” he replied.
“OK, we don’t need you to do that,” the operator said, an eerie echo of the admonition given to Joe Horn in Texas.
Zimmerman spent a few more minutes on the phone. First he gave the operator directions about where he would meet a police officer. Then he seemed to change his mind.
“Actually, could you have him call me, and I’ll tell him where I’m at?” he said.
At 7:15, four minutes after the call began, he hung up.
What happened next is a classic case of the only survivor to a shooting death claiming self-defense. What is known for sure is that within a few more minutes, George Zimmerman shot Trayvon Martin to death. Zimmerman claimed that he had acted in self-defense.116 The Sanford Police Department agreed. Sanford police chief Bill Lee claimed that his detectives did not have enough evidence to arrest Zimmerman in the face of his claim that he acted in self-defense. “Until we can establish probable cause to dispute that, we don’t have the grounds to arrest him,” the chief said.117
The case caused a national outcry.
Pummeled by civil rights activists, the news media, gun violence prevention groups, and politicians outraged by the pass seemingly given Zimmerman, Governor Rick Scott, a Republican, appointed a special prosecutor, State Attorney Angela Corey of Jacksonville, to take over the investigation and decide whether charges were warranted. The governor also said he would convene a panel to review the law.118 But Democratic critics complained that he was dragging his feet.119 The Civil Rights Division of the U.S. Department of Justice and the FBI jointly opened a separate criminal investigation into possible violations of federal civil rights law.120
On April 11, 2012, Corey announced that, after a “thorough review” of the evidence, the state had concluded that the new law, often called the stand-your-ground law, did not apply to Zimmerman’s case. “If Stand Your Ground becomes an issue, we fight it,” Corey said.121 Zimmerman was charged with second-degree murder, an offense that carries a maximum sentence of life in prison in Florida.122 In a succinct affidavit filed to support the charges, investigators stated that Zimmerman “profiled” Martin, who was “unarmed and was not committing a crime.”123
He turned himself in the same day.124 In August 2012, Zimmerman’s lawyer announced that he intended to use the stand-your-ground defense. Accordingly, a trial-like hearing was to be scheduled to determine whether Zimmerman’s assertion is valid. If a judge rules that the law’s defense applies to Zimmerman, the second-degree murder charge will be thrown out.125 At this writing, no hearing had been scheduled and Zimmerman’s case was still pending.
Marion Hammer still says the shoot-first law is just fine. “This law is not about one incident,” Hammer told the Palm Beach Post after the Martin shooting. “It’s about protecting the right of law-abiding people to protect themselves when they are attacked.”126 But other voices in the state disagreed. “The divergent interpretations by justice officials in the Martin case raise the haunting specter of justice denied in other ‘stand your ground’ cases,” the Orlando Sentinel declared. “If those who uphold the law can’t consistently judge self-defense, how are citizens supposed to know?”127
It is precisely that question—the instant judgment of ordinary citizens in the heat of the moment—that leads back to the “shoot cops” law, an extreme expansion of the castle doctrine, passed by the Indiana legislature in 2012.
The context in which the “shoot cops” law was passed in Indiana is the radical right-wing view that law enforcement is, or is rapidly becoming, the conveniently visible face of the enemy, the state. Guns can and ought to be used to fight back against this “police state.” An article in The New American, a John Birch Society magazine,128 distilled this view in criticizing the Heller decision for not going far enough to ensure gun rights. “In isolation, an individual’s right to possess firearms for the purpose of self defense in his own home can only minimally deter rogue public officials from attempting to impose a police state on this country. Without thoroughgoing organization, sufficient arms, and legal authority for collective action, Americans cannot expect to deter, let alone to resist, large-scale para-militarized police forces and other instruments of oppression.”129
The question of whether homeowners can resist police entry erupted in Indiana on November 18, 2007, when Mary Barnes called Evansville police and complained that her husband, Richard, was throwing things around their apartment. When responding officers arrived, they found Richard Barnes in the parking lot. A heated verbal confrontation ensued. When Richard Barnes went back into the apartment, a police officer attempted to follow him. Barnes shoved the officer against the wall and was subdued after a struggle and his being shot with a Taser.130
In his defense against charges of assault against a police officer, Barnes claimed that, because the officers had neither a warrant nor his permission to enter the apartment, his resistance was immunized by the old common-law castle doctrine. The case ended up in the Indiana Supreme Court, which sided with the police in a May 2011 decision. The court acknowledged that, under the ancient doctrine, one indeed could resist unlawful authority. But it pointed out that because of the combination of protections against arbitrary police action in modern law and the danger of violence escalating, “a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s.”131
We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. . . . We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case. . . . In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.132
The court’s ruling ignited protests from libertarians and the right wing, notwithstanding the fact that, as the court took pains to point out, the decision was well within the mainstream of American common law.133 A legislative reversal was introduced.
“Our forefathers fought for a right to live freely without fear of unwarranted intrusion by an oppressive government,” stormed State Senator Mike Young. “Certainly times have changed since then, but this right is among the most basic we have and should not be tampered with in any way.”134 State Representative Mike Speedy agreed. A legislative reversal was necessary, he said, to prevent “the coercive power of government. . . . We can’t kid ourselves—it is as powerful as ever, and without undoing the Barnes decision, it has crept into our home in a way that is wildly unpopular in our communities.”135 One voter, a fan of the bill, showed up at a legislative hearing wearing a medieval knight’s costume, apparently a symbolic reference to the castle doctrine.136
Opponents warned that the bill would have unintended consequences. Representative Craig Fry cautioned that “it’s too late after somebody dies for a jury to sort it out. Somebody’s going to die, whether it’s a police officer or an individual who thinks a police officer is entering their home unlawfully. People are going to die.”137 Steuben County Sheriff Tim Troyer said methamphetamine abuse had already caused a spike in violence toward his officers. “You interject that substance with that mindset that they have a pass now to resist law enforcement and I fear a genuine problem for our communities,” he said. David Powell, executive director of the Indiana Prosecuting Attorneys Council, said the law would prevent prosecution of a person who attacked an undercover police officer trying to make an arrest. “In their mind, they did not know this individual was a police officer, and if they hurt that police officer, their lawyer in court is going to say, ‘He’s undercover, he was out on the street and I didn’t know he was a police officer,’ ” Powell said. “So we give that person who could have . . . battered and injured a police officer . . . a pass with this bill.”138
Nevertheless, the bill passed, and Governor Mitch Daniels signed it into law.139 The State of Indiana issued a statement. “We do not live in a police state; we live in a free society.”140
The history of the toxic mix of Florida’s laws, the NRA, and ALEC shows it was a short legislative step from “shoot first at home” to “shoot first anywhere.” It has yet to be seen whether a similar third wave will add “shoot cops at home” and “shoot cops anywhere” to this volatile brew of “gun rights.” If it does, a future Humberto Delgado Jr. will have a ready defense. And a cop who doesn’t ask permission to go through a backpack or who enters a home to protect a wife being battered will run the risk of being shot first.