‘It Wasn’t Murder If They Were Black’: The Loud Music Case & Rewarding Racism

by Josh Slone

Well, it’s happened again: another armed, white man ‘stood his ground’ against an unarmed black teenager.  In a case eerily similar to the Trayvon Martin tragedy (which happened only nine months earlier), this incident involved yet another trigger-happy white man who shoots first, asks no questions later, and claims immunity under Florida’s now infamous ‘Stand Your Ground’ statute (FL ST §776.012).  In what is being called ‘The Loud Music Case’ (for reasons discussed below), a jury was once again charged with the difficult task of determining whether there was premeditation and whether the defendant’s alleged perception of danger was sufficiently reasonable to support a Stand Your Ground defense.  The ambiguity of ‘reasonability’ in Florida’s Stand Your Ground Statute once again raises the question of how one distinguishes a subjectively reasonable response from an objectively reasonable one.  Unfortunately, the jury in this case could not figure it out: the jury was hung on the first degree murder charge while it found the defendant guilty for three counts of attempted second degree murder.  In Stand Your Ground cases, this ambiguity seems to reward irrational fears, particularly fears predicated upon racial differences.  Indeed, the ambiguous wording of the statute allows the jury to consider the defendant’s prejudices and their effect on reasonability.  In doing so, the statute allows defendants to escape culpability by appealing to their own racism, allowing sympathetic jurors to reason, “well I’m afraid of black people too, especially young ‘thugs’ like the victim, so I think the defendant’s fear was reasonable.”  Thus by remaining ambiguous, the statute allows subjective elements to taint the inquiry, which not only institutionalizes racism, but actually rewards it with get-out-of-jail-free cards.  Therefore, this statute must be revised so as to eliminate this ambiguity, lest more murderers go free.     

Before we ‘play the race card,’ let’s first look at the facts of the case.  On Black Friday of 2012, Jordan Davis and three of his teenage friends were out cruising the local dating scene.  They stopped at gas station for gum and cigarettes.  Three of the teens, including Davis, waited in the SUV for the other group member to make his purchases.  Simultaneously, defendant Michael Dunn had pulled into the same gas station, parking next to the SUV.  According to the facts presented at trial, the SUV was playing loud rap music; this was the source of the conflict.  Annoyed, Dunn remarked that he “hated that rap crap,” got the attention of the teenager in the front passenger seat, and asked him to turn the music down.  The passenger acquiesced, but Davis told the passenger to leave the music at its current volume, stating that Dunn had no right to order them around.  At this point, Davis (seated in the rear passenger seat) and Dunn exchanged a line of profanities.  At a certain point, Dunn exclaimed “you can’t talk to me that way!”  What happened next depends on who you believe. 

 According to Dunn, he saw Jordan Davis point a shotgun at him from the rear window, and in response, Dunn retrieved his pistol from the glove compartment, and opened fire.  However, witnesses and the forensic evidence undermine this account.  According to witness testimony and forensic evidence, after shouting that he would not be ‘disrespected,’ Dunn immediately pulled the pistol from his glove compartment and opened fire.  Three of the bullets went through the rear passenger door, striking Davis once in each leg, with the other bullet piercing his liver and lungs and severing his aorta.  Unsure of what was happening, the driver of the SUV floored the vehicle in reverse and stopped in an adjacent parking lot, but Dunn was not finished firing.  As the SUV backed away, Dunn fired more shots, nearly missing the other occupants’ heads; a total of ten bullets were fired.  As Davis lay dead with his head in his best friend’s lap, Dunn did not wait for the police, call 911, or even leave his personal information.  Instead, Dunn drove away with his girlfriend to another county, stopping at their hotel, where the two ordered a pizza, watched a movie, and enjoyed cocktails.  After investigating the crime scene, the police found no firearm in the SUV or anywhere in the area; in fact, they found nothing in the vehicle that could be mistaken for a firearm.  These were the facts presented to the jury

While there is plenty to be said about impressions that can only be made in the courtroom, it is difficult to understand why the jury could not agree on the murder charge.  First degree murder requires “premeditation” before liability attaches (FL ST §782.04).  Whether it was due to faulty jury instructions or juror incompetence, premeditation was clearly present in this case.  Premeditation does not require an elaborate plan before the killing takes place: it can occur an instant before the killing as long as there was a brief moment for the defendant to contemplate pulling the trigger.  Here, Dunn not only had a verbal precursor to his action, he also took the time to reach in his glove compartment, remove the pistol, turn toward Davis, aim, open fire, and exit the vehicle while still shooting at the fleeing SUV; there was plenty of time for Dunn to realize what he was doing. 

Of course, the other element of this case was the self-defense claim under the Stand Your Ground statute.  The statute permits a self-defense claim for the use of deadly force if the person “reasonably believes that such force is necessary” (FL ST §776.012).  The problem is the word “reasonable.”  It is baffling that the Florida legislature has not clarified this language given the notoriety of the objective-subjective reasonability debate.  While one can question whether the distinction is even possible, surely the ambiguity is worth clarifying.  By maintaining this loose language, Florida has adopted a loose sense of justice, allowing doubt to exist even where the actions are considered completely unreasonable to most people.  In this case, there was no evidence supporting a reasonable fear that Dunn had been threatened with a firearm.  Indeed, his racially-charged words, decision to pursue the fleeing SUV, and gross indifference after the shooting suggest that his actions were not out of fear, but out of malice.  Nevertheless, if a juror identifies with Dunn, their same prejudices could result in a stamp of reasonability.  It only takes one juror for a murderer to walk free, but at least Dunn will be behind bars while the state decides whether to try again.

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