Looking Kindly on Vigilante Justice
By Nathan Thornburgh
The 911 tape offered up a few clues that Joe Horn had every intention of killing the men who were breaking into the house next door. For example, there was that time, six minutes into the phone call, when he told the dispatcher, "I'm gonna kill 'em."
And "kill 'em" he did, stepping outside his house to shoot the men with three shotgun blasts in the back as they retreated across his lawn with a bag of stolen goods from next door. In today's overheated debate about gun rights, this marksmanship made Horn, 62, a hero to many. When a small group came out to his home in Pasadena, Texas, to protest the killings, they were shouted down and run off by a far larger group of bikers and residents yelling "U.S.A.! U.S.A.!" as if they were on the set of The Jerry Springer Show.
Grand juries in Texas are sealed affairs, so no one really knows what goes on in their deliberations. But on Monday, a Harris County grand jury refused to indict Horn for any crimes related to the November 2007 shooting. It's the kind of decision that makes you wonder if the jurors themselves were chanting "U.S.A.! U.S.A.!" during deliberations. The decision was celebrated by Horn's defenders, of course. More than anything, though, it was called a victory for the Castle Doctrine.
The Castle Doctrine is a right-to-defend-yourself law that has been sweeping the country: about half the states have some version of the law, most passed within the past three years. Texas passed its version last fall. It is popular in part because it's a hybrid of two simple and deeply American concepts: your home is your castle, and you have a right to defend yourself and your property. The laws have different details and sometimes different names from place to place (some states go for a more macho name — Stand Your Ground — while others prefer the snarkier Make My Day).
The flavor of the law basically shifts the burden of proving self-defense from the shooter to the state. In places like Mississippi and Texas, the law says that citizens have no duty to retreat from any confrontation anywhere when threatened; milder versions exist in states like Connecticut and Colorado, where they cover confrontations only in homes or businesses. That's the version that will go into effect in Ohio in September. Democratic governor Ted Strickland signed the bill in June, against the wishes of a number of state law-enforcement groups.
In Ohio as elsewhere, cops and prosecutors attack the law as superfluous at best: judges and juries rarely convict people for attacking intruders, and similar statutes have been on the books for decades in many places. Texas, for example, has a lot of other laws that protect homeowners in similar situations, some on the books, some not. As Shannon Edmonds, a lobbyist for the Texas District and County Attorneys Association, put it: "There's an unwritten rule in Texas courthouses: It ain't against the law to kill a son of a bitch." Horn clearly thought the Castle Doctrine applied. He brought it up on the phone with the 911 dispatcher. "The laws have been changed in this country since September the first, and you know it and I know it," he said.
The passage of new Castle Doctrine bills goes over well with voters, politicians and people like Horn because of a wide perception that criminals are still given far too many rights at the expense of law-abiding (and gun-owning) citizens. As Horn said in his 911 call, he wasn't going to let those robbers get away. For many, the recent Supreme Court decision striking down Washington's gun ban was seen as a rare respite from a long string of legal attacks on the Second Amendment and the right to bear arms. The Horn decision was hailed as another rare victory.
But whether it was the Castle Doctrine or a prior Texas law that most influenced its decision, the case may be a Pyrrhic victory for gun-rights advocates. As these laws spread across the country, the public will want to know what effect they'll have in their communities. Will they make people more secure? Or will they create some kind of dystopic Deadwood, where the law lands on the side of those who shoot first? The laws are written so vaguely that the answer lies largely in the interpretation. It's up to juries to set appropriate boundaries — hopefully ones that favor precedent, instead of completely rewriting the rulebook on lethal confrontations.
The Castle Doctrine was also invoked in a shooting a month ago 250 miles away from the Horn incident, in Kaufman County, Texas. An elderly man picked up a gun and shot — out his front window — at an "intruder" who turned out to be his 15-year-old neighbor, who was crossing his lawn at night with a friend. The boy survived, but as his friend's mother drove them to the hospital, they were hit by a drunk driver, killing the mother and leaving both boys with even more injuries. The car accident wasn't the old man's fault; the shooting most definitely was. County law-enforcement officials initially declined to press charges, citing the Castle Doctrine. Ultimately, they recommended the case to a grand jury, which did, in fact, indict him.
This all makes for terrible p.r. for Texas as well. The state has long bristled at its gun-nut reputation. Texans would like the world to see them as they see themselves — as responsible gun owners, not itchy-fingered vigilantes. Cases like the Kaufman County shooting don't help.
In late May, I finished a gun-safety course in Nevada in order to get my multistate concealed weapons permit. The instructional component is basically a PowerPoint presentation illustrated with graphic pictures and a video of what can happen to you and your flesh if you mishandle a firearm — something like An Inconvenient Truth for the NRA crowd. What really caught my attention, though, was an off-the-curriculum discussion about when I should use the weapon I would have the right to carry. "Bare fear doesn't justify self-defense," the instructor told me. "Only reasonable fear." This man, a gun dealer whose whole Weltanschauung seemed largely based on his right to defend himself with lethal force if need be, was very clear on the matter: you can't go blasting away at things that go bump in the night.
If the Castle Doctrine were interpreted with the kind of sobriety and restraint espoused by my instructor (and responsible gun owners), it would be a good law. But by celebrating its most overreaching interpretations, those who make a hero out of Joe Horn will ultimately only succeed in ensuring that it isn't.
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