Government

Iowa's 'Stand-your-ground' law faces another test

Iowa's new law sows more confusion over how to proceed

Sixth Judicial District Judge Mitchell Turner, pictured in late 2017, will preside over another test of Iowa’s stand-your-ground law. Prosecutors say both men involved in the altercation drew their guns simultaneously, and both are facing attempted murder charges. One asserts he shot in self-defense and claims he should be free of liability. (Jim Slosiarek/The Gazette)
Sixth Judicial District Judge Mitchell Turner, pictured in late 2017, will preside over another test of Iowa’s stand-your-ground law. Prosecutors say both men involved in the altercation drew their guns simultaneously, and both are facing attempted murder charges. One asserts he shot in self-defense and claims he should be free of liability. (Jim Slosiarek/The Gazette)

CEDAR RAPIDS — Iowa’s unclear “stand your ground” law presents another challenge to the court, this time in Linn County where a man charged with attempted murder is asking for immunity in a shooting that prosecutors say involved two men firing simultaneously at each other.

The defense and prosecution in this case acknowledge the Iowa law is confusing because it doesn’t include the same language as similar laws in other states and lacks a procedure for determining if a person is entitled to immunity.

It’s up to the discretion of a judge. And so far when the new law has been tested, the outcomes have been vastly different.

One judge didn’t question the law’s language, made a ruling before trial and freed a man.

Another had many questions but ruled the case would go to trial and he’d decide later on immunity if necessary. But then he ruled the law was void because of its vagueness.

In this new case, 6th Judicial District Judge Mitchell Turner has decided to take up the immunity issue in a pretrial evidentiary hearing.

Michael G. Hodges Jr., 23, of Cedar Rapids, said he was with friends waiting for a ride early Jan. 28 outside Pub 217, 217 Third St. SE, when “confronted” by Zevon Johnson, 21, of Urbandale, and other members of the “My Brother’s Keeper” or “MBK” gang, court documents show.

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Hodges said Johnson pulled out a gun and Hodges drew his gun in response to defend himself, firing at Johnson and striking him in the chest, according to documents filed in Linn County District Court. Hodges said he used “deadly force” against another to defend himself against injury or death, as the new law allows.

According to criminal complaints against Hodges and Johnson, a security video shows both men simultaneously raising their guns and firing while just a few feet away from the other. Hodges wasn’t hit, but Johnson had a gunshot wound to the chest.

Hodges is charged with attempted murder, willful injury and intimidation with a dangerous weapon. His trial is set for July 9.

Johnson is charged with attempted murder, intimidation with a dangerous weapon, going armed with intent and carrying weapons. His trial is set for Aug. 10.

Police officers questioned both men, who admitted firing at the other, according to the complaint.

Lindsay Garner, Hodges’ attorney, in a motion asking for an evidentiary hearing, said Hodges had been assaulted in the past by Johnson and two others who were him on Jan. 28. She said Hodges has had issues with Johnson and other members of the MBK since 2011.

Hodges also was assaulted, sometime between October and December 2017, by about 15 individuals after Johnson’s brother, Trevon, started an argument with him, Garner said. After this incident, Hodges obtained a permit to carry a gun, she said.

Since that time, Hodges and his friends have been taunted and intimidated by members of that gang over Facebook and other social media.

Garner pointed out Zevon Johnson didn’t have a permit to carry. The gun he had in January had been taken from his mother’s vehicle.

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Garner argued that several other states with this gun law — including Alabama, Georgia and Florida — determine immunity in a pretrial evidentiary hearing.

Iowa is one of at least 24 states with stand-your-ground laws that allow people to use reasonable force — including deadly force — against another to defend themselves and others against perceived threats, according to the National Conference of State Legislatures.

Garner noted that in an evidentiary hearing, the burden is on the defense to prove by a “preponderance of the evidence that the force used was justified.”

A preponderance is a lesser standard than beyond a reasonable doubt, which is required in a criminal trial. The defendant would have to prove that it is more likely than not that the degree of force used was justified.

Garner also cited in her motion that one Iowa judge followed the pretrial procedure to determine immunity.

Fourth Judicial District Judge James S. Heckerman in Montgomery County looked specifically to Florida’s stand-your-ground law for guidance because Iowa lacked a procedure to follow. Heckerman didn’t seem to question the language, which in the Iowa law says a person should have immunity from “criminal or civil liability for all damages incurred by the aggressor” if the force is justified. He interpreted it as meaning immunity from criminal prosecution — not just punishment.

On Feb. 12, Heckerman granted immunity to Kevin Staley, 39, of Red Oak, who had been charged with voluntary manslaughter. Staley fatally shot one of two men who jumped him in an alley last October.

Before Heckerman’s ruling, 6th Judicial District Judge Paul Miller ruled that Lamar Wilson, 22, of Iowa City, who claimed he fatally shot one man and injured two others on the Ped Mall in Iowa City in self-defense, would stand trial and then he would rule on the immunity issue.

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Miller, in his ruling, said the question of immunity usually is decided before trial. But the Iowa law doesn’t specify it’s immunity from prosecution — but rather immunity from criminal or civil liability.

Under that language, Miller said, the immunity could be “anything” — from court costs, fines or “simply being prosecuted at all.”

Wilson was convicted by a jury in February and then a month later, Miller ruled that Wilson hadn’t proven by a preponderance of the evidence he was “entitled to the protection of immunity.” Wilson got 24 years in prison.

Miller also concluded the law was void for vagueness. He noted it set forth no uniform procedure to follow and every judge possibly would interpret it differently.

Assistant Linn County Attorney Jason Besler, in his resistance to defense argument, agreed with Miller’s interpretation of criminal liability, which doesn’t entitle a defendant to an evidentiary hearing. Besler pointed out the other states with similar laws plainly say “immunity from criminal prosecution.”

The Iowa Supreme Court approved a procedure dealing with the term “liability” in a different law for another case, State v King, but there wasn’t a pretrial hearing, Besler noted.

That case went to trial and the judge required the jury to answer an interrogatory question about whether immunity applied.

Judge Miller used State v King as a sort of guide in the Wilson case. Miller reasoned handling it this way would result in witness testimony and examination in one proceeding — a trial — rather than two separate proceedings.

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Besler suggested an interrogatory could be used for Hodges and the prosecution would have to prove Hodges acted without justification beyond a reasonable doubt.

Judge Turner, in his May 31 ruling, said he agreed with the two sides that the law establishes no procedure. Turner, however, said despite the fact that the language doesn’t say a defendant would be immune from “criminal prosecution,” he concluded that the intent of law was to prevent people from being prosecuted or having to go to trial if the force was justified. The defense will have the burden of proof by a preponderance of the evidence, Turner added.

If immunity is granted after an evidentiary hearing, then Hodges can file a motion to dismiss the charges, Turner said.

A date for the evidentiary hearing hasn't been set at this time.

l Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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