Lawyers say no need to tamper with self-defense law
By Pacific Island Times News Staff
Guam’s current self-defense law is solid enough to provide legal protection for those who feel the need to employ lethal force to defend themselves against imminent danger, according to lawyers who oppose the proposed expansion of the island’s Castle Doctrine law.
“I don’t know why Guam wants to be like Georgia or Texas or other places with stand-your-ground laws,” former public defender Phillip Tydingco said, testifying against Sen. Joe San Agustin's Bill 12-36, which proposes to amend Guam’s Castle Doctrine law to eliminate the requirement for retreating before resorting to a deadly response.
Under Guam law, deadly force may be used in self-defense under threat of death, serious bodily injury, kidnapping or rape, but one is required to retreat before resorting to deadly self-defense. When self-defense is claimed, the prosecution must prove beyond a reasonable doubt that self-defense did not occur.
Tydingco, a self-confessed gun owner who also served as a prosecutor, objected to tampering with the current law, saying there is nothing wrong with retreating to deescalate a dangerous situation.
When faced with imminent danger, such as having a gun pointed at them, one does not have to retreat, he said.
Inserting a new clause, Tydingco said, would only render ambiguity and inconsistency in Guam's self-defense law. Bill 12-36, if enacted into law, would turn Guam into a “shoot-first-ask-question-later" jurisdiction that would scare away the island's visitors.
"If you want to make an impact, strengthen the police force and the prosecution office," he added.
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J. Basil O’Mallan III, chief prosecutor at the Office of the Attorney General, agreed that Guam law already provides residents with a reasonable, viable legal justification for engaging in self-defense.
"This same law already provides a person the ability to 'stand their ground' and use deadly force wherever the person may be," O'Mallan said in written testimony.
"If a person does not feel they can safely retreat from a threat that poses serious harm, existing law, as mentioned above, already authorizes them to stand their ground and use deadly force. In all these situations, a person would be legally justified in his/her actions and would be shielded from criminal liability," O'Mallan added.
Stephen Hattori, executive director of the Public Defenders Service Corp., provided written testimony opposing Bill 12-36 "based on concerns regarding the negative consequences of the abandonment of the duty to retreat in public places.”
Deputy Director John Morrison testified that the duty to retreat only exists when a victim can retreat with complete safety, which wouldn’t exist if a gun is being pointed at a victim in contrast with a victim being in a car and can safely drive away.
Speaker Therese Terlaje said the public hearing provided clarity on every citizen’s right to self-defense on Guam.
“Our community is justifiably concerned about their safety, but as policymakers, we must do our diligence to determine if measures like ‘stand your ground’ are needed or helpful in curbing or prosecuting crime,” Terlaje said.
“It is also imperative that the people of Guam understand that everyone has the right to self-defense when they believe it is necessary to protect themselves against death, serious bodily harm, kidnapping, or certain criminal sexual conduct offenses,” she added.
The American Bar Association's National Task Force on Stand Your Ground Laws has opposed "stand your ground " statutes, citing recent studies indicating that such laws did not deter theft, burglary or assault and that states with such laws have higher homicide and firearm homicide rates.
The PDSC also cited the latest cohort study published in the February issue of the Journal of the American Medical Association, which assessed 41 U.S. states and found no evidence that SYG laws were associated with decreases in homicide or firearm homicide; on the contrary, the study shows that SYG laws were associated with an 8 percent to 11 percent national increase in monthly rates of homicide and firearm homicide.
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