CHARLESTON, W.Va. -- The right to protect one's home with reasonable, sometimes deadly, force has been a common law since before West Virginia's formation.When legislators made that right an official law in 2008, they expanded it to permit justifiable force away from home and to protect gun owners against civil liability. Similar codes passed by at least 26 states since 2005 have become known as "stand your ground" laws.One national group wants West Virginia and other states to repeal the law because, they say, it creates racial bias and difficulties in prosecution. Supporters, however, say the law has worked many times.State Senate President Jeff Kessler said last week that there is no plan to change or repeal West Virginia's law, despite more talk about the subject."The existing law is appropriate and adequate and, quite frankly, I don't see any reason to water it down or to look at it," said Kessler, a Marshall County Democrat who was chairman of the Senate Judiciary Committee when the law was passed.Members of the Second Chance Campaign, a national organization opposed to the laws, sent state legislators a letter last month giving them reasons to repeal the law."This law escalates everyday conflicts into deadly confrontations and makes it difficult to prosecute when someone makes a self-defense claim," said Christopher Brown, campaign spokesman.Brown pointed to the shooting death of 17-year-old Florida resident Trayvon Martin at the hands of neighborhood watch volunteer George Zimmerman. Zimmerman was charged with second-degree murder and a jury must decide if the shooting was justifiable under Florida's stand-your-ground law.Kessler said he read the letter but doesn't give it much merit.
"The West Virginia version of [the law] does give prosecutorial discretion, in that it has to be 'reasonable and proportional,'" he said. "It's hard to define under each case, but the prosecutor makes the ultimate decision whether to charge or not."Brown, though, said the law creates disconnect in the way self-defense claims are prosecuted."People, not just prosecutors and judges, typically find the laws' language to be vague." Brown said. "Research in Florida shows that no prosecutors really have the same idea, and judges do not always have the same idea. It leads to some adverse results."Kessler said the law protects people such as a Wheeling pharmacy employee who shot and killed an armed robber in May. Prosecutors said the employee used justifiable force and did not press charges.
The law also protected a Brooke County storeowner who shot and killed a man during a break-in last December, Kessler said. Prosecutors didn't press charges against the owner, even though the man was unarmed.Two notable cases within recent years found men charged with murder who later to had the charges dropped:
Last August, Logan County Prosecuting Attorney John Bennett was faced with a dilemma after Jesus "Jessie" Canul fatally shot David Abbott, 37, of Chapmanville, after Abbott took Canul's wallet at knifepoint at a local Walmart parking lot.Bennett initially charged Canul with first-degree murder, but later dropped the charge, saying, "There are still some aspects of the investigation that have not been completed." He said a question remains whether Canul acted in self-defense or if Abbott had turned to run away following the robbery.Kanawha County Prosecuting Attorney Mark Plants also faced a difficult decision after Charlie Booker was charged with two counts of first-degree murder for killing Joseph E. Miller and Billy Dodd. Booker spent a month in jail before Plants determined that he acted in self-defense and dropped the charges.Keith Morgan, president of the West Virginia Citizens Defense League, said that before some states had the law, people were required to retreat to the farthest room in their house before defending themselves."By placing someone in a position where they have to retreat," Morgan said, "it's actually prolonging the physical danger they are in."According to West Virginia's law, a lawful occupant within a home does not have a duty to retreat from an intruder or attacker if it's believed the intruder or attacker might kill or inflict serious bodily harm upon the occupant.
The occupant also may use deadly force if the intruder or attacker intends to commit a felony in the home."There's a lot of misconception out there," Morgan said. "Under this law, or even without it, things are going to come down to the reasonable belief that you can't use lethal force unless you're presented with lethal force."Brown said gun advocacy groups pressured state legislatures around the country to pass the laws. Studies have shown, he said, that the law creates a racial bias.Morgan disagrees. He said the laws are gaining attention only because of the Florida case and the fact that Zimmerman is half Hispanic and Martin was black. Morgan blames the news media for perpetuating misconceptions about the laws.However, Brown said the laws have a deeper impact than just granting people a right to protect themselves. It can justify homicide, he said.Reach Travis Crum at email@example.com or 304-348-5163.