How Hawaii's self-defense law stacks up against AG's criticism
“If you're out on the street, you have to turn around and run if you can do so in complete safety,” explains Honolulu defense attorney Don Wilkerson.
U.S. Attorney General Eric Holder sparked a firestorm of controversy last week when he said citizens have a duty to retreat from an attacker if they can do so safely.
Holder’s comments came days after a Florida jury of six women found George Zimmerman not guilty of second-degree murder in the shooting death of17-year-old Trayvon Martin in February of last year.
“There has always been a legal defense for using deadly force if – and the ‘if’ is important – no safe retreat is available,” Holder said in a speech before the NAACP National Convention in Orlando, Fla. “But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely.”
Although Florida’s stand your ground law wasn’t used in Zimmerman’s defense, Holder’s comments have outraged some gun rights advocates, who say the attorney general is meddling in states’ affairs. According to the National Conference of State Legislatures, more than 20 states have some form of self-defense or stand your ground laws.
In Hawaii, there are certain instances when someone can legally stand their ground, but generally the state’s self-defense law is in agreement with the sentiments expressed by the attorney general.
“The Florida law says no retreat out on the street,” said Wilkerson. “Hawaii's law says you don't have to retreat if you're at home and you're protecting yourself against death, serious bodily injury, rape or forcible sodomy.”
But even if someone comes face-to-face with an intruder inside their home, that doesn’t mean they have carte blanche authority to use deadly force. Wilkerson says you must first perceive a threat to yourself or a loved one before acting out.
“If someone says, ‘I'm going to kill you,’ and they're in your home, I think you would be reasonable in using deadly force if you genuinely believed that person had the means and was going to carry out that threat,” said Wilkerson. “If it's an idle threat, I wouldn't want to take that to a jury.”
However outside the home, Hawaii’s self-defense statutes are much more restrictive. A person must make every reasonable attempt to retreat before resorting to deadly force, as long as doing so doesn’t put that person in danger.
“If you're out on the street, you have to turn around and run if you can do so in complete safety,” explained Wilkerson. “If someone was beating your head on the concrete and we had film of that and it looked like he was going to kill you, or you believed he was going to kill you, then you would have the right to use deadly force against him.”
Still, Wilkerson says every self-defense case is open to interpretation, and he recommends that any degree of force only be used as a last resort.
“It doesn't matter really what the facts are and what reality is, it's a matter of what the jury sees in the courtroom,” said Wilkerson. “My advice would be always retreat if you can, even in your home. You don't want to kill somebody if you don't have to.”
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