Stand Your Ground statutes have been enacted in more than two dozen states in the last ten years, the product of intense lobbying from ALEC fueled by the fervor of state pro-gun groups.
This is Part 2 of a Study Series on the Use of Deadly Force. It describes changes in the classic application of self-defense, SYG and the changes it has wrought.
Part 1 covered the beginnings of the common law of self-defense (i.e. law developed in court decisions as opposed to legislative statutes). Part 3 selects cases to explore the attributes of self-defense. Then we'll tee up questions for "the other side of gun issues", whichever side that may be for you.
Once again ... These diaries resort to broad generalizations. State laws vary significantly. Cases depend on the facts of each situation, not to mention the prosecutor, judge and jury. That said ...
... let's talk about SYG and how it applies beneath that odd little Byzantine bullseye.
|Disclaimers. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
Our focus has been self-defense within one’s home, for that is the most obvious and compelling case for self-defense. Many of the same principles were at work at other locations, too. And, in important ways, the laws were changing over time.
Here are the principles we started with in Part 1 as they reflect the evolution of self-defense over time:
- The threat must be present, immediate, imminent, perhaps unavoidable, depending on the jurisdiction.
- The response should be proportionate to the threat, deadly force to be used only where deadly force or great bodily harm was threatened. However, the emphasis was shifting to the threat, particularly what the defender perceived the threat to be at the moment.
- The duty to retreat waned as time went on. In some jurisdictions, the "Castle Doctrine" explicitly removed this duty in one's home on the premise that "a man's home is his castle" and practically speaking, there may be no safer place to retreat. Some others just ignored it altogether.
- There must be no provocation nor pursuit. These undercut the notion of a "defensive" use of deadly force. But the implicit confrontation in standing one's ground will diminish these cautions considerably, as we will see.
- Self-defense was to be tested by objective standards, not solely by the defender's subjective reaction. But this, too, was changing so as to give the defender more room to be mistaken without being held culpable.
- Unless the facts of a case were clear and compelling, the burden of invoking self-defense and proving it was on the shooter after charges were brought. This does not appear to be the law now emerging in some states.
Reactions to SYG laws are a litmus test. Critics call these "Shoot First" laws. Advocates of SYG argue it merely clarified the law as it was, advancing it as to location but not in other important ways.
|Sidebar. Full disclosure: my view is that Stand Your Ground laws - in their language and in their application - constitute a sea change in the traditional laws of self-defense.
As for the issue of race, I purposely screened it out in this diary series not because it isn't prevalent, but so I could deal more directly with the elements of self-defense. For Firearms Law and Policy, Lilith Gardener covered the documented racial disparities of SYG laws. a2nite drew attention to the issue in diaries on DK's group Support the Dream Defenders, seeking to revise Florida's SYG law. I believe the uneven applications of SYG based on race is one of the most potent arguments to contain, and possibly ultimately to reverse, these laws.
According to CMD (the Center for Media and Democracy), the model bill was adopted by ALEC's Civil Justice Task Force in August 2005 - just a few short months after it passed the Florida legislature - and approved by its board of directors the following month. …The Florida Stand Your Ground statutes codified a confrontational right and designed it to go beyond the historical and classic concepts of self-defense.
"3. A person who is not engaged in an unlawful activity and who is attacked in any other place [other than their dwelling, residence, or vehicle] where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony."
|These seem to be the working parts of the law in many SYG states:
- "Your ground" is any place you have a right to be ... no matter that any other person has a right to be there too. In your home, there is no question who "belongs there" (except arguably for some domestic violence situations). But wherever you are lawfully present is a very different matter.
ALEC has used Florida's SYG law as a model and it has seen to its enactment with few variations in two dozen more states. The map is here, entitled getting away with murder.
There is even more to some of these laws. Take Florida. A related Florida statute grants blanket immunity from criminal prosecution and civil liability if the SYG defense is permitted. As we will see in the Westbrook/Hendrix case in Georgia in Part 3, local police and prosecutors took this a step farther still. They were quoted as saying they had to be able to disprove self-defense in order to hold or charge an assailant. That reversal of the burden of proving self-defense, if it holds, is a perverse contortion of self-defense.
The Association of Prosecuting Attorneys called attention to implications:
Moreover, while the traditional Castle Doctrine can provide the basis for a defense at trial, some of these "Stand Your Ground" laws, including Florida's, give the killer immunity from prosecution. This blanket immunity is greater than the legal protections given to police officers who are involved in a shooting in the line of duty. This grant of immunity, both civil and criminal, can sharply undermine the ability of law enforcement and prosecutors to protect the public by prosecuting acts of gun violence.Commentators who claimed that the trial of George Zimmerman did not involve an SYG defense were wrong. True, the defense did not explicitly raise SYG in a pre-trial hearing in either the George Zimmerman case or Michael Dunn, the guy who fired ten or more shots into a car filled with teenagers. SYG can be raised in a pre-trial hearing, but it is not required to be. But Florida's standard jury instructions incorporate SYG, merging it with the Castle Doctrine and self-defense generally. Here is the Florida instruction reportedly used in both trials, which is nearly identical to the SYG statute:
If [defendant] was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.
Before we go to specific cases, consider what we're doing in this territory.
Whatever the elements of self-defense may be in any given state, they are "just" legal considerations. Whatever the outcome of a shooter's case, he or she will go through the rest of life having killed another human being. Shooters report that they relive those fractions of time, often not happily. Unmanly, weak and inglorious as it may seem, backing off from a fight of any kind is almost always the wisest option.
A large and informative set of articles on these points can be found on the No Nonsense Self-Defense website. While one may not agree with all its advice (it has a gun-culture slant and it's there to sell books), the site presents an eye-opening array of things to consider before you buy that weapon for self-defense. Such as thinking through plans when danger presents and fully understanding the risks of diminished perceptions in a sudden encounter with the unexpected.
Simply meeting your state's requirements for gun familiarity training, safety education and practice at a range is not enough. They are necessary but NOT close to sufficient to prepare you to use a deadly weapon in situations calling for self-defense.
Coming up Next in Part 3 of this series:
Cases that Prove the Rule ... and Don't.
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