A Police Officer Speaks on ALEC and "Stand Your Ground"

-- by Brian Austin, originally posted on Badger Blue, Times Two.

"The world, that understandable and lawful world, was slipping away."

-- William Golding, Lord of the Flies

Question of the day: What interest would a corporate lobbyist group have in expanding the rights of citizens to shoot and kill each other?

A great deal has been written about the shooting deaths of Trayvon Martin and Bo Morrison over the past several weeks. I don't need to rehash that conversation, as there is little I can offer regarding specific facts of those cases. What I would like to do instead is examine why these Castle Doctrine/Stand Your Ground Laws have been promoted with such enthusiasm by the American Legislative Exchange Council (ALEC).

I have written about ALEC in several prior posts, including Enemy at the Gates and Contempt, thy name is Fitzgerald. In short, ALEC is a corporate lobbyist group that writes model legislation favorable to its corporate members and presents this legislation for passage in statehouses across the nation. The conduit for this legislation are the legislators who are also members of ALEC. This partnership between corporate lobbyists and politicians has been very fruitful for the corporations hawking their legislation. This is fact, not conspiracy theory, as evidenced when ALEC legislation was recently introduced in Florida still bearing the ALEC mission statement.

ALEC model legislation is being passed in statehouses all over the nation. ALEC legislation includes anti-labor legislation like that seen in Wisconsin, Ohio, and the numerous "Right to Work (for less)" states, voter disenfranchisement legislation ("voter ID"), and the privatization of schools, prisons, public works, and pension funds. ALEC bills dismantle environmental regulations, make it harder for people injured by corporations to sue for compensation, and take away public financing of elections. As I mentioned in prior posts, The Center for Media and Democracy has done amazing work exposing ALEC, and has been head and shoulders above the mainstream media on this topic.

ALEC has also vigorously and enthusiastically promoted Castle Doctrine/Stand Your Ground legislation around the country. The Florida "stand your ground" law was signed into law by Governor Bush in 2005 with an NRA lobbyist standing at his side during the ceremony. This legislation became ALEC's nationwide model legislation on the matter, and since then, over two dozen states have enacted legislation tied to ALEC's model law.

To understand this legislation, we must examine the state of the law prior to the passage of Castle Doctrine/Stand Your Ground across the country. As a police officer, I am intimately familiar with the law governing the use of deadly force. While police officers, by definition, use deadly force in justifiable circumstances more frequently that private citizens, the law relating to the use of deadly force applies to private citizens in the same manner.

Let me use Wisconsin as an example: Prior to the Castle Doctrine, Wisconsin law stated that a person could use deadly force against another human being if they reasonably believed they or another person were in imminent danger of death or great bodily harm. "Imminent" means "likely or certain to happen very soon" according to the Macmillan Dictionary. In Wisconsin, for a threat to be considered imminent, three criteria must be met. The suspect must have:

1. A weapon capable of producing death or great bodily harm. This could be a firearm, knife, vehicle, or even bare hands depending on the specific circumstances of that case. Obviously, a two year old with his hands around the neck of a 30 year old would not qualify, but an able-bodied 30 year old with his hands around the neck of another person likely would.
2. Intent to cause death or great bodily harm. Intent is determined by words, actions, and circumstances. Intent can be inferred at times without verbal declaration depending on the facts of a case.
3. Delivery system: the actor must have the ability, the means, to utilize the weapon in #1 above to inflict death or great bodily harm. A person with a baseball bat behind a barbed wire fence likely does not have the delivery system to inflict death or great bodily harm with that bat to someone on the other side of the fence.

The belief that one is in imminent danger of death or great bodily harm must be reasonable. This does not mean that a person can't be mistaken, but the mistake has to be reasonable under the circumstances. As an example, police officers across the country are routinely found to be justified when they shoot subjects armed with facsimile or BB guns, or who quickly brandish cell phones after claiming to have a firearm in an attempt to elicit the desired lethal response. In the law enforcement community, it is called "suicide by cop," and the vast majority of time a mistake in fact is still legally justified. However, a person utilizing deadly force against another will be judged by the standard of a reasonable person under similar circumstances.

There is also one more requirement for the use of deadly force in Wisconsin, and that is preclusion. Preclusion means you have to either 1) demonstrate that you attempted other options prior to utilizing deadly force and those attempts were unsuccessful to end the threat, or 2) you have to articulate why trying other options was not feasible under the circumstances. An example of #2 would be someone pointing a gun at you at close range, which would make other levels of force suicidal.

Underpinning these standard use of force laws is a pretty basic moral tenet: We should not be killing each other unless absolutely necessary.

What laws like Castle Doctrine and Stand Your Ground do is essentially remove the requirement that a person actually evaluate whether the person they shoot is presenting an imminent threat of death or great bodily harm if that encounter occurs at the person's home (or business, or vehicle). You don't have to show that you reasonably believed they had a weapon, that they had intent to cause you or someone else death or great bodily harm, or that they had the means to do so. Under laws like Wisconsin's Castle Doctrine, the court PRESUMES that if someone is in the process of entering your home, or has entered your home, you are in imminent danger and justified in using deadly force, regardless of the circumstances. The law treats the rapist/serial killer the same as the neighbor with Alzheimer's or the drunk college kid who mistakenly came to the wrong apartment.

One of the most extreme forms of Castle Doctrine law was recently passed in the State of Indiana. In its infinite wisdom, the Indiana legislature amended their Castle Doctrine to allow people to use deadly force against police officers entering their home if they reasonably believed the officers were acting unlawfully. Don't concern yourself with the fact that a judge has likely issued a search warrant if police are forcibly entering a residence. Instead, Indiana lets the homeowner (who is often an accused criminal) decide if the cops are there legally, and if the answer in his or her mind is no, he or she can blast away.

Let me make a couple of things clear, before people make erroneous assumptions about my view of the use of deadly force in society. As a police officer for 15 years, and a SWAT officer for 12 of those, I can say without reservation that if someone actually breaks into my house, there is a high likelihood they will be shot and killed. Not a certainty, because I have at least a moral obligation to make a very quick decision about what that person's intent is and if other options exist, but a high likelihood nonetheless. I will utilize deadly force without any hesitation if I determine that my life or someone else's life is in imminent danger, and I will be able to live the remainder of my days in peace with the consequences of those actions. The reason I will be able to live with having to use deadly force is because I will know in my heart that it is what I had to do. I will do my best to evaluate the situation first, and utilize other options if they are feasible. At the very least, I will attempt to determine the difference between Alzheimer's sufferer and rapist; armed robber and my own child.

That decision whether or not to use deadly force might occur in a milisecond, and it will certainly weigh in favor of protection of my family. If someone is in my residence, they may or may not get the chance to explain. If they are armed, they certainly won't. It will, however, be a decision based upon my processing of information, not because the Legislature has given me a blanket authorization to kill.

And here's the curious, and somewhat troubling, thing about all of this: Wisconsin law already provided protection for those using deadly force in a reasonable manner in defense of themselves or others prior to the Castle Doctrine. The fact that someone was in my house or breaking into my house when I shot them was an enormous part of the equation in determining whether my use of force was reasonable. If I shot someone who clearly was attempting to harm me or my family, it would be rather easy for me to articulate that we were in imminent danger of death or great bodily harm. Citizens who legitimately used deadly force against attackers were just not prosecuted under those circumstances.

From all of the reading I have done, there was no groundswell of demand for these laws by the citizens of these states. These laws were promoted by lobbyists directly to legislators. So back to my original question: why has ALEC been such a forceful proponent of this legislation across this nation? Why was this such a priority for a corporate lobbying group? At first glance, it makes no sense whatsoever.

The mainstream media has finally started to discuss what my friends at Center for Media and Democracy already knew about ALEC. As the story grew surrounding the Trayvon Martin case, the explanation as to ALEC's role in these laws unfolded as follows: Many of the corporations that were members of ALEC would somehow profit from Castle Doctrine. Walmart, one of ALEC's corporate members, is, after all, the largest retailer of guns and ammunition in the nation. The leading theory is that if you pass these laws, more people will go out and buy guns. The NRA is also heavily involved with ALEC, and could stand to profit from an increase in guns sales and an easing of gun restrictions. This was the explanation provided by Common Cause, Bill Moyers, and others. And while it made sense on a superficial level, it seemed too simplistic and, well, rather unsatisfying.

This explanation doesn't do a good enough job convincing me why gun manufacturers and sellers would invest so much time and energy in laws that won't sell that many more guns. Sure, there may be a small number of people who were on the fence when it came to gun ownership, but most people in this country have already decided where they stand on this issue. People who like guns already have guns, and people who don't like them likely won't be swayed by an easing of the requirements for the use of deadly force. This can't be the real reason.

I think there is something much more fundamental, and much more sinister, going on regarding ALEC's promotion of Castle Doctrine laws.

As I have spoken about before, we are at a point in our nation where we have the highest income inequality in the industrialized world. We have a system of taxation where a janitor can pay a higher tax rate than a CEO, and many extremely profitable corporations pay absolutely nothing. Corporations in this country have a strangle hold on our government through campaign contributions, resulting in a government which no longer represents the interests of the average person. We have seen the destruction of our manufacturing sector, a completely deregulated financial industry run amuck, and the dismantling of a host of environmental regulations. We subsidize oil companies as they reap record profits, while we pay $4 a gallon for gas.

As I talked about in my post "Compassion Lost," the small elite group that controls this country has done a fantastic job of manufacturing an attitude of "every man for himself" that now pervades our culture. They want to destroy the human compassion we once had for one another, and the sense of common good (and sacrifice) that made this country prosper. They want us to be mean, and they want us to be selfish.

And the Castle Doctrine? In my opinion, they want us to get to the point where the moral component of taking a human life is out of the equation, the only question is whether it is legally justifiable.

I believe that in order for the corporate elite to continue to further an agenda that favors a select few, they have to turn the masses against each other. That need becomes even more urgent as more and more people wake up to the realities of America in 2012, and uprisings like the Wisconsin protests and the Occupy movement spread. If the corporate elite failed to keep us at each other's throats, and we actually developed a sense of community and compassion and empathy, we would see with total clarity the insanity that grips our nation. At that moment, their gig would be up. We would no longer tolerate what is occurring in America, and the corporate elite and their legislative water boys would be driven from power post-haste.

The Castle Doctrine is just one part of the "shiny object" campaign that the corporate right has waged for decades to prevent this awakening from occurring. Don't mind that the top 1% controls 40% of the wealth in this country, instead blame the public worker making $40,000 a year. Don't mind the fact that the wealthy elite in this nation have siphoned trillions of dollars out of our economy and into their pockets through corrupt trade, banking, and tax policies. No, blame the fact that some single mom is getting $200 more in food stamps than she is entitled to. Even better if your mental picture of that single mom conjures up a person of color. The welfare abuse in this nation is but a grain of sand on the beach of corporate welfare and political corruption, yet the right has succeeded in getting us to focus on that one grain with rabid outrage. You have to give the right wing props for pulling that one off. Overlook the fact that corporations have sent all of our jobs overseas in search of slave labor, but hey, feel free to pop off rounds at somebody you don't recognize before you even figure out what is happening. Now THAT is freedom!

In order to get people to continue to vote against their best interests, the ruling class has to make them believe the average guy next to them is the enemy. In order to "drown our government in the bathtub," they have to completely destroy any remaining sense that we are our brother's keeper. It is the only way it is OK to deny people health care when they are sick, or food when they are hungry. It is how they can demonize our teachers, firefighters and police officers while they siphon trillions from our collective bank accounts.

What the Castle Doctrine laws have done is take away the legal requirement of thought and reasonableness. I would strongly argue that the short-cutting of the legal requirements has the effect of also short-cutting the moral and ethical considerations of taking a human life, and groups like ALEC know this. It is one more step in their goal of having us utterly dehumanize each other.

I know this: it will take more than the backlash from a high profile killing or two to turn this tide. It will take a persistent national conversation about who we are and what we want this nation to look like. It will take an enormous push back against tremendous wealth and power. And, at the end of the day, we have to decide on a fundamental level if we are our brother's keeper or our brother's killer.

Brian Austin is a former state prosecutor and a police detective in Madison, Wisconsin.