By Jacob Shafer
Kill or be killed. In the jungle it’s ironclad law; in human society it’s anything but.
Yes, we condone killing in certain extreme cases—during war, as punishment for the most heinous crimes and, sometimes, in self defense. Even then, however, it comes wrapped in layers of practical and moral ambiguity.
It’s no surprise, then, that the Trayvon Martin case continues to make headlines. As you’re surely aware, Martin, an unarmed black teenager, was shot to death earlier this year in a Florida gated community by George Zimmerman, a neighborhood watch volunteer. Zimmerman claims Martin was acting suspiciously and attacked him when confronted. Martin’s family insists Trayvon did nothing wrong.
However the case plays out, it has exhumed some simmering, divisive issues—race, class, gun control—that always seem to be bubbling just below the surface of the American experiment, waiting for any excuse to erupt. And it has raised a fascinating, terrifying question: When is it acceptable to take another person’s life?
In Hawaii, like most places, the answer isn’t always clear.
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In the wee hours of Nov. 5, 2011, 23-year-old Kollin Elderts lay bleeding to death on the floor of a Waikiki McDonald’s. The bullet in his chest came from a gun fired by 27-year-old Christopher Deedy, an off-duty federal agent.
The events leading up to the shooting remain murky. Deedy, who was charged with murder, contends that Elderts was the aggressor and that he acted in self-defense in his capacity as a law enforcement officer. But a lawsuit filed by Elderts’ family tells a different story.
According to the suit, filed less than two weeks after the incident, Deedy “initiated violence” by “kicking Kollin Elderts in the chest with a martial arts maneuver.”
The suit alleges that Deedy had been drinking that night. Deedy refused a blood alcohol test, according to a KITV report, while cocaine, marijuana and alcohol were found in Elderts’ system.
Reaction to the case has split between those defending Deedy’s actions and those painting him as yet another overzealous, reckless cop (the shooting occurred during the APEC conference, when Oahu law enforcement were on high alert). The fact that Deedy was a federal agent may give him more leeway, but how far can average Hawaii residents go to defend themselves?
Hawaii’s self-defense law, outlined in HRS 703-304, allows for the use of deadly force, “if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.” Hawaii’s law does not compel a person to retreat from “his dwelling or place of work” when threatened.
This is the now-infamous “stand your ground” provision—not as broad as the Florida statute currently being tested by the Trayvon Martin case, but broader than many other states. “We would not normally expect a man to abandon his home to an aggressor and would allow him to stand his ground,” reads the commentary accompanying HRS 703-304.
The law, however, has limits. In April, a judge upheld the 20-year sentence given to Kevin Metcalfe, a Hawaii Island man convicted of shooting another man, Larry Kuahuia, with a 12-gauge shotgun in 2009.
Metcalfe claimed he caught Kuahuia trying to break into his greenhouse, which was filled with marijuana plants, and that Kuahuia charged at him. But evidence contradicted Metcalfe’s account. During the trial Maui pathologist Anthony Manoukian testified that Kuahuia was shot in the back, according to the Hawaii Tribune-Herald.
In 2009—the same year Kevin Metcalfe killed Larry Kuahuia—the Hawaii legislature considered a bill that would have amended HRS 703-304, lowering the threshold of threat from “serious bodily injury, kidnapping, rape, or forcible sodomy” to mere physical attack and expanding the “stand your ground” provision to include any public place.
“In light of the increasing presence of violence in our society and the availability firearms and other deadly weapons, [this bill] would allow the public to become more secure in their homes, places of employment and other areas where they should be able to enjoy life free from dangers caused by the criminal element,” wrote the state Public Defender’s office in testimony submitted to the House Judiciary Committee.
The prosecutor’s office, meanwhile, had serious reservations. Deputy Prosecuting Attorney Douglas Chin offered the following hypothetical: “[Suppose] a driver cuts off a car containing two large men who pull into the same parking lot as the driver. The two men exit the vehicle and approach the driver yelling at the driver for cutting them off, but the driver can safely drive away from the incident. Under the current law, since the driver can retreat in complete safety, he or she must do so before using force against the two men. If this bill were to pass and the duty to retreat was eliminated, might the driver be more inclined to use deadly force if he or she feared death or serious bodily injury?”
In February, Chin’s scenario played out with eerie precision when 65-year-old Douglas Freeman fired two shots into the driver’s side of 23-year-old Bronson Botelho’s car on Oahu’s H-2 freeway. Bothelo says Freeman cut him off, then later shot at him. Freeman was charged with several counts, including reckless endangerment and terroristic threatening.
Freeman’s lawyer, Marcus Sierra, told KHON Freeman was merely defending himself.
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Is Hawaii gun happy? According to a recent report from the state Attorney General’s office, 15,375 firearm permits were processed statewide in 2011, a 20 percent uptick compared to 2010. But overall, gun ownership in Hawaii falls well below the national average, as MauiTime noted in April after the release of the AG’s report.
Still, Hawaii boasts a vocal gun lobby. The group Hawaii Concealed Carry (tagline, “protecting paradise”) fights regularly to loosen state gun laws, issuing opinion pieces with titles like “‘Aloha’ Won’t Save Your Family.”
In the wake of the Trayvon Martin shooting, the Hawaii Rifle Association posted a commentary on its Web site that accused “race baiters” of turning the case into a “media circus.”
“President Obama has directed the Justice Department to investigate,” states the commentary. “It’s far, far too premature for DOJ to stick its nose into what is purely a state crime at this point—IF a crime was committed.”
(The commentary goes on to describe Martin as a “6 foot 2 inch football player” while noting that Zimmerman is “5 feet 9 inches in height,” with no mention of the fact that loaded weapons tend to render size disparities moot.)
That’s the same Hawaii Rifle Association whose parent organization, the NRA, advocated expanding HRS 703-304 with the following testimony: “A victim who is in fear of being attacked can’t be expected to wait before taking action to protect him or herself and loved ones and ask the criminal, ‘excuse me, intruder, are you here breaking into my home to rape me, kill me, or are you just here to beat me up and steal my stuff and oh, by the way, what kind of weapon do you have?’”
Bruce McEwan, chair of the state Injury Prevention Advisory Committee, had a different take. “A law that promotes the use of deadly force as the first line of defense can create any number of unintended consequences,” McEwan testified. Expansive self defense laws “may make the public feel safer,” he added, but “instead create a mentality of fear.”
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Trayvon Martin is dead. So are Kollin Elderts and Larry Kuahuia. Whether their killings were justified is an open question; the finality of their deaths is not. When we give anyone—a jury, a soldier, a citizen—the right to take another’s life we must do so with the utmost caution. And when we codify that right into law, we must prepare for the inevitable consequences.
“I hope I am not for the killing,” wrote Ernest Hemingway—who ended his own life with a shotgun blast—in For Whom The Bell Tolls. “The killing is necessary, I know, but still the doing of it is very bad for a man and I think that, after all this is over and we have won the war, there must be a penance of some kind for the cleansing of us all.”
