‘Stand your ground’ law not a ‘get out of jail free card’

CHEYENNE — The “stand your ground” bill passed by the Wyoming Legislature in 2018 has caused case dismissals and citizen confusion surrounding the law that now has officials worried it will be viewed as a “get out of jail free card.”

The Wyoming Supreme Court issued an opinion in April on the new law in the case State of Wyoming v. Jason Tsosie John. Locally, a recent second-degree murder case, State of Wyoming v. Benjamin Ketcham, was dismissed by prosecutors under the same law.

The new law amended the self-defense provisions for criminal defendants to state a person doesn’t have a duty to retreat if they’re attacked and aren’t the initial aggressor. This law codifies what was already established in Wyoming through case law.

“The statute was the Legislature’s attempt to bring in all of the law that already existed in our cases and put it into a statute to put it right there in black-and-white,” said Desiree Wilson, senior assistant appellate counsel with the public defender’s office.

Wilson was the attorney that handled the appeal on the John case. She said in that case, the state was arguing whether John was entitled to an evidentiary hearing.

The Supreme Court ultimately found he was entitled to that hearing.

But this doesn’t mean people have a free ticket to shoot someone if they’re being attacked and doesn’t cover the defense of property. Under this law, people can only use deadly force if they believe they are in danger and would suffer serious bodily injury or imminent death.

If the person doesn’t believe they’re under those conditions, they’re not permitted to use deadly force, and they can only use deadly force to protect themselves, not property.

“The position the defense took was this cannot be enforced if left only in the hands of prosecutors, that this was a true immunity, created by the Legislature, meant to protect people who use reasonable defensive force. Not everybody who shoots somebody is entitled to this protection,” Wilson said. “The defense position is that if a person fits this strict criteria that are outlined in this statute that they should have the right to a court hearing on it.”

The local case

Laramie County District Attorney Leigh Anne Manlove dismissed the Ketcham case under the “stand your ground” law.

After a more in-depth investigation, it was discovered that Ketcham fatally shot Aaron Briggs because Briggs was previously told to leave the Lariat Motel room where Ketcham was staying May 22. Ketcham also bought his gun, a .22LR revolver, out of fear of Briggs, according to court documents.

Later that evening, Briggs returned to the motel room and began to threaten Ketcham and other people in the room, according to court documents. He was wearing a large metal chain draped over his neck and refused to leave.

Ketcham then pulled out his gun and stood on the motel room bed and told Briggs to leave again, according to court documents. At this point, Briggs swung the metal chain at Ketcham, and Ketcham fired the gun at Briggs.

This single shot ultimately cost Briggs his life, and because Ketcham was acting in self-defense, he is immune from prosecution.

“It is my hope that this information will not just inform, but help the public to understand that while Wyoming law provides for immunity for an individual who exercised reasonable force in self defense, it is only available under certain, narrow, factual circumstances,” Manlove said in a news release. “Those facts were present in Mr. Ketcham’s case, but I have deep concerns that this dismissal will be misconstrued as a ‘get out of jail free card’ for anyone who wants to use lethal force for any reason. It is not.”

“In this discussion, we have to remember, and be sensitive to the sad truth, that a man lost his life,” Manlove said in the news release. “Aaron Briggs was someone’s son, someone’s father, someone’s friend, and they will always mourn his premature death.”

Wilson said prosecutors always have the right to exercise their prosecutorial discretion to decide whether to charge someone with a crime. This is what happened in the Ketcham case, she said, because after investigating the case, prosecutors determined Ketcham was entitled to immunity under the “stand your ground” statute.

David Inman, Cheyenne Police Department public information officer, said with any case, and most recently the Ketcham case, investigators look at security footage, talk to witnesses and collaborate with the district attorney to determine if there’s evidence of self-defense.

Inman said under those narrow and factual circumstances is how the determination is made. In cases such as homicide, those decisions take time and a thorough investigation. People are usually brought in for questioning, crime scene evidence is collected and more.

In less serious crimes, such as a bar fight, officers can usually use their discretion to make those decisions on the street. In those instances, officers can talk to witnesses and those involved to determine what happened.

“A reasonable person would agree that, are we going to bring two people in that got into a fight in a bar 2 a.m. for questioning? No,” Inman said. “That’s a misdemeanor fighting offense. That’s something, like I said, an investigating officer can make a determination the night of, or later on, in the next couple of days, they can write a ticket to be served later after looking at video or collaborating with more witnesses.”

For the more serious offenses, such as a homicide, those determinations aren’t made in an hour, or even a few days or weeks. It becomes a whole different realm of investigating, Inman said.

The Supreme Court opinion

In its April opinion in State of Wyoming v. Jason Tsosie John, the Wyoming Supreme Court establish a procedure in the criminal justice system for how this law takes effect.

In this case, John was being threatened via text messages and phone calls by Wesley Willow. Willow later showed up at John’s house, and John told Willow to leave. Willow then charged at John and into his home, which is when John fatally shot Willow.

John was charged with first-degree murder, which the Natrona County District Court later dismissed under the “stand your ground” statute. The Supreme Court affirmed this dismissal and set forth the procedural frameworks for the new law.

In the opinion, the high court established that if the prosecutors don’t think the law applies, but the defense does, there must be an evidentiary hearing on the matter that’s separate from the preliminary hearing. The only purpose of the preliminary hearing in circuit court is to establish probable cause that a crime occurred, not to establish if the “stand your ground” law applies.

If the prosecutors are in agreement with the defense, then a hearing doesn’t need to be held, and the prosecutors can just dismiss the case, which is what happened in the Ketcham case.

The Supreme Court said even though the law didn’t use the word immunity, it is an immunity provision. It’s then the “judicial gatekeeping function” to make sure prosecutors don’t prosecute someone who used self-defense under the criteria of the law.

If the prosecutors pursue charges, then the court must hold this evidentiary hearing to see if factual evidence exists to apply this immunity. This type of “gatekeeping function” isn’t any different than other checks and balances the court uses.

“If the court determines, based on the standards that are set forth in the John opinion, that somebody is entitled to that immunity, they don’t have to go to trial,” Wilson said. “Because the whole point of an immunity is to save somebody from the emotional cost of a trial and the financial cost of a trial. And so if they did use these really strict criteria, they shouldn’t have to go through the trial process.”

The principles

In the law, there is the principle called “duty to retreat.” The law states that a person who is in a place where they have a legal right to be, such as a public park, and isn’t doing anything wrong, doesn’t have to flee if someone comes up to them and tries to do them harm.

However, Wilson stressed the person also has an obligation not to kill someone and consider other alternatives before using deadly force on someone else if they thought they were at risk of serious bodily injury or death.

“If you can retreat, you should, but you don’t have to, and that’s where they just kind of leave the door open to specific circumstances that may crop up,” Wilson said.

In some states, there is an absolute duty to retreat, which means the person must try to retreat before they use deadly force, Wilson said. This isn’t the case in Wyoming.

The other aspect of the “stand you ground” law has to do with who is the initial aggressor. If someone started or escalated the fight, then they aren’t protected under this law.

For example, if two people are in a fist fight, and one person pulls out a gun, they’re considered to have escalated the fight, Wilson said. The person who escalated the fight wouldn’t be considered to have immunity under this law, unless they try to stop the fight, but the other person persists.

“Then you have to kind of separate out the deadly force versus the non-deadly force, because if one person escalates from non-deadly force to deadly force, the person who escalates it becomes the aggressor because they have escalated to a new level,” Wilson said.

Wilson also wanted to clarify the Castle Doctrine, which has to do when someone is in their own home. Wilson said a big misconception with this doctrine is that people think they have the right to use deadly force to protect their house.

This is completely untrue, she said.

If someone breaks into a person’s house, people have a right to use deadly force to protect themselves or other household members – not the physical property.

The reason people can use deadly force inside their home in circumstances where they might not be able to outside their home is due to the presumptions that exist in the law, Wilson said. This means when a person is inside their home they’re already considered to have retreated to their utmost capabilities.

“I think it’s just important that people know that the Castle Doctrine is not for protecting your property, it is for protecting yourself within your house. And it’s only under specific circumstances that are spelled out very carefully inside the statute, so it’s not a free-for-all license to shoot somebody,” Wilson said. “And I think that’s what the Supreme Court was afraid of, too, is that people tend to misconstrue what these laws mean, these laws are very carefully constructed, and they apply to only specific circumstances.”

The lawmakers

At its May meeting, the Joint Judiciary Interim Committee heard a Supreme Court update on the John opinion and how the Legislature’s law is playing out.

State Sen. Tara Nethercott, R-Cheyenne, who co-chairs the committee, said it’s very important to look at this law from the shooter’s perspective. She said this is a person charged with murder – what does the process look like for them, and does this process work for them?

At the meeting, committee members looked at the procedure the Supreme Court established in its opinion, and ultimately decided they were satisfied with how the high court created the procedure.

Nethercott brought up when this evidentiary hearing should occur. She said in the John case, he was arrested before any thorough fact-finding analysis occurred. She said she doesn’t have suggested solutions, but sees challenges with the procedural process from both the defense and prosecutorial perspectives.

Rep. Charles Pelkey, D-Laramie, said he didn’t agree with Nethercott’s interpretation. He said since the Supreme Court said this evidentiary hearing occurs in district court, it gives both sides more time to investigate.

But at what point is this immunity hearing occurring at the district court, Nethercott said. Three months later? Six months later? She said this is just something to understand about the process.

She said she voted for the legislation, but what became disappointing to her is that it became a gun bill when it was really a due-process bill. Regardless of if someone used a gun, frying pan or car, it doesn’t matter what the instrumentality is, but what the process is for someone who is charged with homicide.

“I believe that, regardless of the law that the Legislature recently passed or had it been the law prior to that, there always has been the right to defend yourself, all the way back to territory days, and to use lethal means if you feel like your life is in danger,” Nethercott said in an interview.

Nethercott said Wyomingites always had the right to defend themselves and others, so in light of the facts in the Ketcham case, she said she doesn’t think the new law mattered.

She said she thinks the law makes a self-defense case procedurally more challenging for the courts due to how investigations of crimes work. The new “stand your ground” law requires the courts to do a hearing fairly quickly after someone is charged, and that can sometimes be too quick for both the defense or prosecution.

“I think both prosecutors and defense attorneys have to think very carefully about it, because, like in this case, what appears to be the facts at first blush of an individual who unequivocally shot another man at his death, but you need a little bit more time to go out and fully investigate what happened,” she said. “And that can be particularly challenging for law enforcement. It appears like the suspect is potentially dangerous to the community.”

The “stand your ground” law requires prosecutors be 100% certain at the time of charging, but Nethercott said that’s not always the reality, as the Ketcham case points out.

“I think there’s sometimes a misconception about Wyoming laws,” she said. “I believe that it does in the ‘stand your ground’ legislation. Wyoming has some really great self-defense laws that have been tried and tested throughout the course of the last 150 years that have never needed to be altered in that time.

“And then there seemed to be this national trend, indicating a need to strengthen our gun laws. And I think what we’ve done is created more legal procedural processes for the criminal justice system, as opposed to authentic gun laws.”