Response paper

Are "Stand Your Ground" Laws an Effective way to Stop Violent Crime? by Hickey 59

Selected, Edited, and with Issue Framing Material by: Thomas J. Hickey, State University of New York at Cobleskill

ISSUE

Are “Stand Your Ground” Laws an Effective Way to Stop Violent Crime?

YES: Jorge Amselle, from "Why We Need 'Stand Your Ground' Laws," The Daily Caller (2014) NO: James Beckman, from "The Problem with Stand Your Ground Laws: A Proven Detriment to Public Safety," Original Work (2016)

| Learning Outcomes After reading this issue, you will be able to: • Discuss the role of the National Rifle Association (NRA) in supporting the passage of "stand your ground" laws in the United States. • Discuss the early origins of "self-defense” laws and whether they are consistent with the adoption of "stand your ground" statutes. • Discuss the “duty to retreat" doctrine. • Present several arguments favoring the development of "stand your ground" laws in the United States. • How do "stand your ground" laws increase the rate of justifiable homicide findings in criminal cases? • Present several arguments opposing the development of "stand your ground" laws in the United States. • Discuss how "stand your ground" laws increase the rate of justifiable homicide findings in criminal cases.

• Discuss whether "stand your ground" laws do more harm than good to public safety.

ISSUE SUMMARY

YES: Writer and firearms instructor Jorge Amselle asserts that "stand your ground" laws are needed for self-defense in the United States. Such laws provide those who use weapons for self-defense and defense of personal property with an effective legal defense in these cases. NO: Professor and author James Beckman, in contrast, argues that "stand your ground" laws are an anachro nism in modern society. Moreover, Beckman believes that these laws encourage situations wherein individu als will choose to escalate potentially violent encounters rather than diffusing them.

1 he self-defense doctrine has a long history in the Anglo American legal tradition. Our courts have held consistently that a person has a right to use self-defense to prevent an impending attack on him/herself, in defense of personal property, or in defense of others. Black's Law Dictionary (1979), a classic legal treatise, defines self-defense as follows: assailant. The right of a man to repel force by force even to the taking of life in defense of his person, property, or habitation, or of a member of his family, against anyone who manifests, intends, attempts or endeavors by violence of surprise, to commit a forcible felony,

An excuse for the use of force in resisting an attack on the person, and especially for killing an To establish the traditional defense, a defendant must show that he/she did not provoke the incident and that there must be imminent peril. It also required the

60 Taking Sides: Clashing Views in Crime and Criminology, 13/e

The

person using self-defense to demonstrate that there was of physical, sexual, and psychological abuse, and thus not no convenient or reasonable means of escape. Moreover, murder, but only manslaughter. Their first trial resulted in a if an injury was done by a defendant in self-defense, hel hung jury. The jury was unable to agree on a degree of hom she could not be held liable in a criminal case or a result- icide, landing all over the board with votes for first degree ing civil action. (Id. 1220-1221). The case law also makes murder, second degree murder, voluntary manslaughter, clear that it is never reasonable to use deadly force in a dis- and involuntary manslaughter. (Menendez v. Ca Terhune, proportionate manner-one is not justified to use deadly 422 F.2d 1012). force to repel a non-deadly attack. At their second murder trial (double jeopardy does There are two forms of legal self-defense claims. Imper- not apply if a first trial results in a hung jury mistrial), where fect self-defense occurs when someone kills another person they raised the same self-defense claim, the Menendez and he/she honestly believed that deadly force was needed brothers were convicted of first degree premeditated to thwart the attack; however, it later turns out that the murder and were sentenced to life imprisonment without belief that deadly force was necessary was not a reasonable the possibility of parole. Their convictions and sentences one. For example,

suppose that you had recently received were later affirmed by the California Supreme Court and online death threats due to your political activism and their petition for post-conviction relief was denied by the someone walks toward you carrying a blue plastic sledge U.S. Court of Appeals (9th Cir.). hammer that you honestly believe is a real one. Suppose The Menendez case illustrates the difficulty of estab further that he/she swings the hammer in your direc- lishing a self-defense claim in a criminal trial. It also illus tion and you respond by shooting the individual with a trates the highly subjective nature of these cases: The jury .9 mm handgun that was concealed in your jacket and the at the first trial could not agree on a verdict: Apparently assailant dies from the gunshot. If at trial you bring a self- while some jurors did not believe the brothers' self-defense defense claim, the question that will arise is whether your claims, and voted to convict them of first degree murder, honest belief that the hammer swinging individual's con- others accepted their claims and believed that voluntary duct actually threatened your life was a reasonable one. If or involuntary manslaughter were the more appropriate the court concludes that it was, the claim of self-defense verdicts. would be a complete defense. If not, however, it could still Self-defense cases, then, often present challenging mitigate your degree of criminal responsibility. In fact, in factual issues. As noted earlier, in order to establish a self these circumstances it may well result in the reduction of defense case in some states a defendant must show that charges from murder to a lesser degree of homicide, such there was no convenient or reasonable means to avoid a as manslaughter. confrontation, a so-called “duty to retreat." Other states, A claim of perfect self-defense is established, in con- such as Florida, however, have eliminated the “duty to trast, when a defendant's belief that his/her life is threat- retreat." Florida's "Justifiable Use of Force" statute (Title ened by an attacker is an objectively reasonable one. For XLVI, Chapter 776.013) provides: example, if someone confronts you with a real pistol and demands your wallet and threatens your life, responding A person is presumed to have held a reasonable with deadly force may well be determined to be an objec fear of imminent peril of death or great bod

ily harm to himself or herself or another when tively reasonable course of action. In such circumstances, using or threatening to use defensive force that is a self-defense claim may establish a complete defense and intended or likely to cause death or great bodily no criminal (or even civil) charges would arise. harm to another if: . . . (b) The person who uses An additional example may help to clarify

the nature or threatens to use defensive force knew or had of self-defense claims in the real world. In a now-famous reason to believe.., that an unlawful and forcible case that employed a self-defense claim to murder charges act was occurring or had occurred. in the State of California, Erik and Lyle Menendez shot and killed their parents, Jose and Kitty Menendez, in the family's Thus, Florida law does not require a duty to retreat Beverly Hills home on August 20, 1989. The prosecution's in order to establish self-defense. A highly controversial theory supporting murder charges was that the killings were Florida case, which presented a self-defense claim, motivated by greed and the brothers' desire to acquire by involved the 2012 shooting death of Trayvon Martin, a early inheritance their parents' considerable wealth. How- 17-year-old African American, by George Zimmerman , a ever, after abandoning a story cooked up for police inves- self-declared neighborhood watch captain. At trial, the tigators that the Mafia had killed their parents, Erik and evidence showed that Martin was visiting his father, Tracy Lyle claimed at trial that the killings were the result of years Martin, in the Twin Lakes gated community, in Sanford, Are "Stand Your Ground" Laws an Effective way to Stop Violent Crime? by Hickey 6

Florida. On February 26, Zimmerman called 911 to report successfully established the "SYG" defense, he could have a "suspicious person" in the neighborhood. The dispatcher not been faced criminal or civil proceedings in this case. instructed him not to get out of his SUV, or otherwise Is such a law a good social policy, however? The authors engage the person. Zimmerman disregarded this directive of the articles in this Chapter would have very different and moments later witnessed heard gunfire. When police answers to this question. arrived, Zimmerman acknowledged shooting Martin, who Jorge Amselle contends that "SYG” law opponents was found bleeding from the nose and back of head and are trying to make the case that these laws have turned later died from his injuries. The next day Zimmerman lawful gun owners into a "shoot first ask questions later" went to his family doctor, who testified that he had two people and that SYG has made this both acceptable and black eyes, a fractured nose and two cuts on his head. Zim- legal. He contends, in response,

that SYG laws do not merman was later charged in Florida court with second change the criteria for claiming legitimate self-defense or degree murder. A Florida jury accepted Zimmerman's self- the use of deadly force. Moreover, the use of force must defense claim and found him not guilty. In 2015, the U.S. normally be proportionate to the existing threat. Department of Justice declined to file civil rights charges James Beckman, in contrast, argues that modern "SYG” against Zimmerman. Moreover, in a recent and somewhat laws are a threat to public safety. They encourage individuals macabre postscript to this case, George Zimmerman has to escalate threating situations and have led to an increase offered publicly to sell online the gun he used to kill Tray- in homicides in states where they have been adopted. von Martin, The opening bid was set at $100,000. (Reu- Which of these positions do you support? While ters, World, May 16, 2016).

reading the selections in this issue, think carefully about Zimmerman's defense team decided tactically to use the purposes and objectives of self-defense claims and the a

traditional self-defense strategy in this case and forego goals of the U.S. justice system? Do SYG laws facilitate a "stand your ground" (SYG) law pretrial hearing. Had he

these goals? 62 Taking Sides: Clashing Views in Crime and Criminology, 13/e

YES Jorge Amselle

Why We Need “Stand Your Ground” Laws Lithwick also makes it seem that SYG is a new phe It is no surprise that the lefty media hates guns but nomenon, something states just started instituting in the ever since the Travon Martin shooting in Florida they last decade. It is true that legislatures started passing these have become especially apoplectic about Stand Your laws in a very specific manner more recently but case law Ground (SYG) laws. In their continued criticism

they have questioning the Duty to retreat (which is the basis for SYG) brought up two other Florida shooting incidents and one goes back well over 100 years. The best known example of in Arizona. They conveniently ignore the fact that in all of this is Brown v. United States (1921) where the U.S. Supreme these incidents, including the Travon Martin case SYG was Court held that there was no duty to retreat in a legitimate either not a factor or most likely doesn't apply. ... self-defense case. Basically these laws make it clear that in a self- Here is an excerpt about this case from Wikipedia defense situation you do not have a duty to retreat before "if a man reasonably believes that he is in immediate using lethal force. They are the law in 22 states. In the rest danger of death or grievous bodily harm from his assail of the country, at least outside your home, you may have ant he may stand his ground and that if he kills him he a duty to retreat. has not exceed the bounds of lawful self-defense." Wow, The most recent anti-SYG rant

comes from Dahlia they were using the term "stand your ground" in 1921. Lithwick over at Slate.com. She is smart and an attorney Further, Justice Oliver Wendell Holmes wrote (also

from (who should know better) and occasionally makes good Wikipedia), “Detached reflection cannot be demanded in points just not on guns. Using the aforementioned exam the presence of an uplifted knife. Therefore, in this Court, ples she tried to make the case that

SYG has turned gun at least, it is not a condition of immunity that one in that owners into a "shoot first ask questions later" type and situation should pause to consider whether a

reasonable that the law has actually made this both acceptable and man might not think it possible to fly with safety or to legal.

disable his assailant rather than to kill him." And there is Let's start with the obvious. SYG laws do not change that SOB the reasonable man again. the criteria for claiming legitimate self-defense or the use In simple terms we need SYG laws because too of lethal force. It is not enough to say you thought you saw often prosecutors in self-defense cases ended up doing a gun or that you were in fear for your life. The specifics exactly what Justice Holmes warns against, using their have to be such that a reasonable person would feel the own detached reflection outside the presence of that same way. Keep in mind that this reasonable person will uplifted knife to judge the legitimacy of the actions of be sitting in a comfortable chair, far away from danger, another. Grand juries go along and jurors are told how and dispassionately considering your argument. Absent the state law says you have a duty to retreat if you can clear physical evidence or witnesses it isn't as easy to prove safely do so. Twelve people sitting in perfect safety get self-defense as the media makes it out to be. to decide if it was safe for you to retreat before they The use of force also has to be proportional in most have to decide if it was OK for you to use lethal force to cases. If someone is simply threatening you with their defend yourself. words and gestures, you can't shoot them no matter how Duty-to-retreat laws place an extra and unreasonable

scared you are. If you get in a fight with someone and are burden on those claiming legitimate self-defense. That a participant in the altercation your ability to later claim is why so many states have enacted specific legislation self-defense if you use lethal force will be severely compro- to eliminate duty to retreat. Frankly, as an advocate of mised. SYG changes none of this. self-defense and a firearms instructor, I think it is a good

Amselle, Jorge, "Why We Need 'Stand Your Ground,' Laws" The Daily Caller, March 11, 2014. Copyright ©2014 The Daily Caller. Used with permission. Are "Stand Your Ground" Laws an Effective way to Stop Violent Crime? by Hickey 6

le idea to retreat if you can but I don't feel qualified to sit in JORGE AMSELLE is a certified firearms instructor and writer Judgment of another person's decisions when in mortal covering all aspects of the gun industry from military and danger. Liberals seem to have no qualms about judging 148mg law enforcement firearms and training to the shooting sports. low others, it seems. 64 Taking Sides: Clashing Views in Crime and Criminology, 13/e

James Beckman

The Problem with Stand Your Ground Laws: A

Proven Detriment to Public Safety

Introduction self-defense rules through its promulgation of its famous/ infamous SYG law of 2005—both as to what the revisions The passage of the Florida "Stand Your Ground" (SYG) entail, why changes to the law were purportedly needed, legislation in 2005 was truly like the proverbial gun shot and the alleged chief arguments in favor of these laws; and heard round the world. Immediately upon passage of the (3) the chief arguments today in opposition of SYG laws law, visitors from around the globe were advised to be and this author's conclusions as to the efficacy and value careful when visiting Florida because of this new law, and of SYG laws (as currently formulated) in ultimately serv leaflets were even handed out at the Florida airports advis- ing as a detriment to public safety in instances involve ing incoming tourists of this potentially life-threatening self-defense or in active shooter scenarios. To be clear, this change to Florida's laws. The passage of this state law in author is not proposing that one may not use deadly force 2005 was the result of very heavy lobbying by the influ- to repel attacks where one is imminent fear of grave harm ential National Rifle Association (NRA). Since that time, or death. Rather, it will be argued that the recent SYG laws thirty-three additional states have revised their deadly use are actually superfluous to the state of the law for victims of self-defense laws to emulate Florida's 2005 legislation. before 2005 (even in “duty to retreat" states) and that the As such, the NRA's successful campaign in this area can laws since 2005 have been shown to do more harm than rightly be described as one of its more successful efforts in good to public safety. recent history at implementing laws relating to gun own ership (or more accurately, the protection of gun owners Classic Rules Pertaining to Use of Deadly and right to carry laws) throughout the United States. Yet, Force and the Duty to Retreat Rule the debate over the use of deadly force in self-defense has existed for centuries, and certainly long before Florida's The concept of lawful self-defense permeates every 2005 alternations to the classical rules of the use of deadly aspect of human existence, from one-on-one interac force in self-defense in cases when one was in imminent tions between two individuals on a street corner to inter fear of great bodily harm or death, or the protection of actions between nation-states under international law. another in such legitimate imminent fear.

In fact, Article 51 of the United Nations Charter speaks Thus, the often misunderstood and misquoted of a nation's "inherent right" of self-defense against underlying history of SYG laws goes back well before Flor- the armed attacks of other countries, or even

threats of ida in 2005 and is relevant to understanding why such such armed attacks. In

English Common Law, there have laws were initially passed, the current climate and status been rules on the individual use of deadly force in self of SYG laws, and whether such laws

are ultimately good defense for centuries, and certainly since the thirteenth or bad for public safety in the United States. In ultimately century (Levin, 2010, p. 528). Interestingly,

even in the advocating that the SYG laws as currently formulated do early middle ages, the killing of another human being, not constitute wise public policy, I would like to divide even if in self-defense, was still considered homicide by and discuss my comments into three

interrelated areas, the Crown. Phrased another way, early English Common namely: (1) the historical and classic rules pertaining to Law did not permit one to "stand one's ground"

and kill the use of deadly force and the proper rules of the so-called in self-defense, and only permitted the killing of another "duty to retreat" doctrine

that existed in many states if one was attempting to apprehend a so-called "flee before 2005; (2) Florida's revisions to classic deadly force ing felon," if you need to kill to protect

yourself from a

Beckman, James, "The Problem with Stand Your Ground Laws: A Proven Detriment to Public Safety." Copyright © 2016 by James Beckman, J.D., LL.M. Reprinted by permission. Are "Stand Your Ground" Laws an Effective way to Stop Violent Crime? by Hickey 65

robbery attempt or were acting under special permission in order to spare the life of the one who precipitated the a writ) from the Crown (Mischke, 1981, pp. 1002-1003). difficulty in the first place" (Loewy, 2003, p. 76). The idea The origins of the ability to kill in self-defense ironically behind this retreat rule (beyond its centuries old mooring initially developed as almost a post-trial mitigating factor in the law) is that one should not needlessly shed blood in sentencing, by showing that one tried to retreat as far (even an alleged criminal's blood) “when a person can as possible and only killed as a last resort. If a defendant avoid danger by running away" (Loewy, 2003, p. 76). could prove that he or she attempted to flee and retreat The "duty to retreat" rule began to gain traction and only killed as a last resort, the jury could enter a spe- and was adopted by more and more jurisdictions between cial finding of guilty. This enabled the Crown to intervene 1962 and 2005. Indeed, a variety of well accepted crimi in the case and possibly commute or pardon the defend- nal law textbooks

asserted that "duty to retreat" states ant's sentence, based upon any unique case circumstances actually outnumbered “no retreat" states for many years (Brown, 1991, p. 3). Thus, ironically, for hundreds and after the completion of the MPC and prior to the passage hundreds of years before the United States became a sepa- of Florida's SYG law in 2005 (see, for e.g., Schmalleger, rate country in 1783, English Common Law disfavored 2002, p. 163; Loewy, 1987, p. 68). Indeed, as late as 2002, the so-called modern-day right to stand one's ground in one prominent scholar (Dr. Frank Schmalleger, Professor self-defense. The requirement that a convicted defendant Emeritus at the University of North Carolina) asserted that could have the Crown intercede on his or her behalf by "most jurisdictions impose a retreat rule upon those who showing that he or she retreated to the wall and did eve- would claim self-defense" (Schmalleger, 2002, p. 163). rything possible to avoid bloodshed was the legal require- Another prominent law professor similarly asserted sey ment for hundreds of years and was the genesis of the eral decades earlier that "the 'retreat' rule ... is adopted by "duty to retreat" rules that gain a prominent foothold many jurisdictions and the M.P.C. [Model Penal Code] ..." in the United States centuries and centuries later. As one (Loewy, 1987, p. 68). While somewhat speculative, the rea law scholar has written, for centuries at common law, the son why many states adopted this rule was because requir Crown made clear through its laws and "communicated ing victims of crime to retreat when they safely could do to the citizens that the right to defend one's self against so clearly had the tendency to reduce the loss of life (and an attack was not an automatic license to kill" (Glinton, not increase it) and de-escalate violent situations (and 2013, p. 1), arguably unlike the mentality of many in the not increase them). Further, as will be explained below, United States today under modern SYG laws. the "duty to retreat” rule, while much maligned by the Yet, early on in the American experience, states (par- NRA, actually did not actually preclude victims of poten ticularly those in the South and West) allowed for the use tial crimes from utilizing deadly force if the victim had of deadly force to defend against deadly force and refused any subjective doubt whatsoever that he or she could not to impose the "duty to retreat" that had existed for cen- escape completely and safely without harm. If the poten turies in England (Catafalmo, 2007, p. 507). These states tial victim had any doubts, he or she could utilize deadly become known as "no retreat" jurisdictions. These states force to defend themselves. constituted a majority of states well into the 1960s. Particu- Thus, one of the most deliberately overlooked aspects larly after the drafting the influential Model Penal Code of the “duty to retreat" rule during political debates was (MPC) in 1962 (which advocated for a "duty to retreat" the fact that victims need

not retreat at all unless that per before utilizing deadly force in self-defense), more and son subjectively believes and knows that he or she could more states began imposing a “duty to retreat” require- retreat with complete and utter safety (Loewy, 2003, p. 77). ment before using deadly force in self-defense (when out. Thus, as one law professor has written, “even though a rea side of one's home). Simply put, in jurisdictions adopting sonable person might have known that he could retreat in this rule, the victim must retreat if outside the home (if he complete safety, if this [victim] did not know it, he would or she could do so safely) before utilizing deadly force. For be under no duty to retreat rather than use deadly force" those states that refused to adopt the “duty to retreat" rule (Loewy, 2003, p. 77). Likewise Professor Emeritus Frank (which MPC acknowledged was still a majority of states Schmalleger has acknowledged that a victim's retreat is when the MPC was finalized in 1962), one could already only required "if [the] retreat can be accomplished with stand one's ground, and utilize deadly force if one was 'complete safety!" (Schmalleger, 2002, p. 163). Yet, this in imminent fear of grave bodily harm or death. Phrased salient and important element of the "duty to retreat" another way, at least in the 1960s, a majority of jurisdic- requirement was conveniently left out (or unintention tions had laws that specified that “a person should not ally or deliberately downplayed) in the political discus be required to resort to what some might deem cowardice sions leading up to the promulgation of Florida's SYG law 66 Taking Sides: Clashing Views in Crime and Criminology, 13/e

of 2005, and the passage of similar laws in other states run and be chased down by the perpetrator before thereafter. Thus, put simply, if a victim did not subjectively she could then use force to protect herself. (Center believe he or she could extract themselves out of the situa for Individual Freedom, 2005) tion with complete safety, a potential victim could lawfully use deadly force to repel an attack when he or she was in Roughly seven years later (in 2012), in the aftermath imminent fear of grave bodily harm or death regardless of of the George Zimmerman shooting of Trayvon Martin, the jurisdiction wherein the potential attack took place. and when many were protesting Florida's SYG law, two

other Florida politicians attempted to defend the law on The Florida SYG Revolution the same erroneous arguments made by Hammer seven years prior by setting forth an equally erroneous applica On April 26, 2005, then-Florida Governor Jeb Bush signed tion of what “duty to retreat" laws actually entailed. The Florida Senate Bill 436 into law, amending Florida's statu politicians stated: tory laws on the use of deadly force in self-defense. What did these revisions do to the existing standards discussed Consider an elderly woman in a dimly lit parking above? First, the law eliminated entirely any duty to lot or a college girl walking to her dorm at night. retreat for a potential victim in any place the potential If either was attacked, her duty was to turn her victim was entitled to be (street corner, movie theatre, car, back and try to flee, probably be overcome and shopping mall, etc.)—basically making any public space raped or killed. Prior to 'Stand Your Ground,' that a person's "castle" for self-defense laws, even though the victim didn't have the choice to defend herself, potential victim could have escaped the situation with to meet force with force. (Schorsch, Gaetz, and complete and utter safety. Second, the law eliminated civil Gaetz, 2012; also, Franks, 2016, p. 145) liability for those who utilized their concealed weapons in self-defense. Third, the revised law created a presumption Thus, if the only premise for a revision to Florida's of reasonable fear for the individual claiming self-defense, law to eliminate any duty to retreat was based upon the meaning the potential victim no longer needed to claim above type scenarios, the justification for such revisions and offer some evidence that he or she was in imminent were quite weak indeed as one could always use deadly fear of grave bodily harm or death (Cheng and Hoekstra, force (regardless of jurisdiction—whether it was a "retreat" 2012, p. 1). These changes prompted one of the twenty or "no retreat" jurisdiction if one did not subjectively Florida legislators (Dan Gerber) who voted against the law believe one could flee completely and utterly successful to state that "it legalizes fighting to the point of death, from one's attackers). However, a critical analysis of con without anybody having a duty to retreat" (Weaver, 2008,

cerns and motivations of gun owners reveal a concern that p. 397). was a more pragmatic argument in favor of these laws (but Marion Hammer, a former president of the NRA, not as viscerally emotional as the above two examples) - was one of the chief advocates and lobbyists for the ulti namely the protection and insulation of gun owners mate passage of Florida's now famous/infamous SYG law with "concealed carry permits” from civil and/or crimi in 2005. One of the most effective political arguments of nal investigation of when they utilized their weapons in proponents of this new law was that the law was needed self-defense. so that innocent victims need not have to try to futilely John R. Lott, Jr., a famous scholar who has written

escape before being able to defend themselves with deadly extensively on his theory of "more guns, less crime," has force-even if the potential victims had doubts about their postulated a number of reasons why he believes SYG laws ability to escape (something never required by the “duty make sense (summarized briefly below). However, at this to retreat" rule). As evidence of this type of argument in point, it is relevant to note that Lott has suggested that trying to convince the legislature in Florida (and the elec SYG laws are needed to remove discretion from prosecu torate in Florida, generally), Marion Hammer was quoted tors and prosecuting attorneys, who arguable might be in 2005 as providing the following example as evidence suspicious and paranoid of gun owners generally. That for a need to change Florida's existing laws on self-defense: is, in order to protect and insulate gun owners who use a concealed firearm in self-defense against another, SYG

[I]f someone had tried to drag a woman into an laws (and the civil and criminal immunity provisions alley to rape her, the women [sic]—even though

often contained within such laws) are needed to protect she might be licensed to carry concealed and these law abiding gun owners from overreaching investi ready to protect herself, the law would not allow gations by police or overzealous prosecutors who arguably her to do it. It required her to try to get away and might be anxious to indict

the gun owners from killing Are "Stand Your Ground" Laws an Effective way to Stop Violent Crime? by Hickey 67

ath tin

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the person who allegedly posed a threat in the first place and this removal of the element of doubt may save the Lott, 2013). John Roman, an expert on crime and a Senior victim precious seconds needed to protect him or herself Fellow at the Urban Institute, testified to the United States (Lott, 2013). Further, advocates claim that SYG laws will ludiciary Committee that the primary motive behind the ultimately deter violent crimes, as (so the argument goes) promulgation of SYG laws was really to protect and insu- criminals will be less likely to commit a crime if they know late gun owners from the avoidance of a criminal trial. If their targeted victim is armed. For instance, one of the an investigation or trial did occur, then "the purpose of Florida legislators voting in favor of Florida's law (Dennis enacting SYG is to increase the rate of justifiable homicide Baxley) stated that a "requiring a duty to retreat was 'a findings" in those cases (Roman, 2013). Thus, according good way to get shot in the back,' and the new law would to another firearms expert Glenn H. Utter, the SYG laws deter criminals ..." (Zbrzenj, 2012, p. 257). Gun rights really have their genesis in the NRA's desire to "avoid the advocates also claim that allowing for an armed citizenry financial cost of legal defense and the trauma of being through robust "concealed firearm carry laws" in conjunc tried in court for criminal conduct" and SYG laws "can tion with SYG laws will allow as an active early defense most appropriately be understood as the result of a major to active shooter scenarios as well, wherein a "good guy" increase in the number of citizens (estimated at more than can thwart the "bad guy" from committing unprovoked 11 million) who have qualified for a concealed carry per- attacks (Utter, 2016). mit and who thus may face the legal entanglements

result ing from the use of firearms in deadly confrontations"

Chief Arguments in Opposition of SYG Laws (Utter, 2016). As explained by Utter, "SYG laws negate the traditional duty to retreat from such confrontations and Despite the very laudatory intentions that SYG laws would in several states provide for criminal and civil immunity" deter violent crime and reduce the number of homicides (Utter, 2016). Another scholar commented likewise stat- in the United States, unfortunately no convincing evi ing that the rationale behind these laws "is to eliminate dence has been put forth to date to support this thesis. In the fear of prosecution experienced by those who may fact, the opposite appears to be true. In the empirical stud act in self-defense" (Megale, 2010, p. 119). This makes ies that have been conducted in the roughly eleven years 11 million (and growing) concealed gun owners more con- since the passage of Florida's law in 2005, several very fident about their "right" to use their weapon in situations persuasive studies have emerged that cast serious doubt they deem merited, without fear of overzealous or over- on the efficacy and effectiveness of SYG laws in decreas reaching prosecution, or in being sued in a civil action. ing violent confrontations or in decreasing the number of Marion Hammer, one of the chief proponents of Florida's homicides in these states. law, acknowledged as such when he stated that these laws First, homicide rates have actually increased in states were necessary to protect the victim of attacks (i.e., lawful with SYG law (since passage of those laws) than in those gun owners) from prosecution (Weaver, 2008, p. 397). It states without SYG laws. By analyzing national data from was never really about little old ladies or college females in the Center for Disease Control's National Vital Statistics dark alleys who could not outrun their potential attackers System, economists Chandler McClellan and Erdal Tekin or being lawfully precluded from legally utilizing a firearm concluded that homicides significantly increased (espe that she might have been carrying in her purse for her self- cially among Caucasian shooters) in those states who defense to thwart a violent attack.

had adopted Florida SYG type laws (McClellan and Tekin, In order to fully understand the deficiencies in SYG 2012). On average, McClellan and

Tekin also concluded laws, one first must have an appreciation of the other argu- that homicides increased 7.1% in states after those states ments put forth by advocates of

SYG laws. That is, setting adopted SYG laws. McClellan and Tekins' study was also aside the above political and pragmatic considerations of replicated by two Texas

A&M University professors, Cheng providing civil and criminal immunity to those currently Cheng and Mark Hoekstra, who utilized the Federal carrying concealed

firearms, are there actual other benefits Bureau of Investigation Uniform Crime Reports (through to these laws? Phrased another way, what other arguments 2011) to analyze

the impact (if any) of SYG laws on homi have made publically in defense of SYG laws? Perhaps cide rates and the potential deterrence of violent crimes. the most well-known

advocate for the theory of "more Consistent with McClellan and Tekin's study, Cheng and guns equals less crimes" and also a defender of SYG laws Hoekstra found that homicides

increased after adoption of is John R. Lott, Jr. Lott has argued that SYG laws remove SYG laws. Also, comparing states the few remaining states any element of doubt in the

minds of the victim as to without SYG laws with the great majority of states which the propriety of the use of deadly force in self-defense, now have SYG laws,

the scholars additionally concluded 68 Taking Sides: Clashing Views in Crime and Criminology, 13/e

that there was no evidence that SYG laws actually deterred however, most states that allow individuals "concealed crime and, quite the contrary, found that SYG laws is a weapon permits" require very minimal training, includ significant factor which may logically lead all parties to a ing at least one state (Virginia) that allows this train confrontation to escalation of violence (rather than defus- ing to be completed entirely online. This is hardly the ing the situation) (Cheng and Hoekstra, 2013). Finally, a sort of training that would enable a concealed weapon 2014 report by the American Bar Association concluded holder to prevent a rampage shooting in an effective that "proponents of Stand Your Ground laws could point manner, without potential damage or injury to other to no examples of cases wherein traditional self-defense innocent bystanders. Additionally, there are six states law would not have protected a law-abiding individual that do not even require a license to carry a concealed operating in justified self-defense" (American Bar Associa- weapon, meaning no training whatsoever is required tion Report, 2014, p. 25).

(Utter, 2016). These states currently include Alaska, Consistent with the above, Florida, the jurisdiction Arizona, Kansas, Maine, Vermont, and Wyoming. While

starting the SYG revolution within the United States, also some states require minimal training, such training has witnessed an increase (not decrease) in the

number certainly falls woefully short of police officer training, of homicides since

Florida's SYG law was promulgated which scholars have characterized as equally inade (Vendatam, 2013). Another very troubling statistical quate (Stoughton, 2014). If police

officers are not being finding in Florida is that the SYG law, originally pitched adequately trained in the proper use of deadly force to to benefit the innocent law

abiding citizens against hard- repeal deadly force, it is doubtful that the average citi ened criminals, statistically appear to benefit criminal zen with a concealed weapon

permit has superior train elements in society instead. For instance, in a ground ing. Indeed, many law enforcement organizations focus breaking analysis by the Tampa Bay

Times of over 100 on other ways to provide safe ways to de-escalate and SYG cases involving the fatal use of deadly force in self- subdue violent suspects. For instance, law

enforcement defense since Florida's SYG law went into effect, the study has encouraged the use of such alternative methods found that almost half of those arrested

(and claiming such as the follows: use of stun guns and stun shields; SYG and self-defense) were arrested at least three times use of mace, tear gas and other

chemical sprays; pepper before the fatal shooting, often for violent prior actions spray; and rubber bullets and other nonlethal projec (Stanley and Humburg, 2012). Further, this same study tiles (Gardner and Anderson, 2000, p. 123). According found that a

third of the shooters claiming self-defense to a 2016 New York Times article, the Police Executive under Florida's self-defense law had previously threat Research

Forum stressed a list of 30 alternative options ened to use a firearm against another, or at least were for police in de-escalating and resolving potential vio caught carrying

firearms illegally. lent threats, without the officers using violence them Additionally, there is a growing body

of evidence selves in response (Baker, 2016, p. A10). As argued by that has concluded that huge racial and gender disparities Professor Glenn Utter, "these principles should also exist in SYG cases. For instance, the American Bar Associa -

apply to private citizens who carry concealed weapons." tion Task Force concluded that a fatal shooting by white Finally, in the aftermath of every rampage shoot

individual (claiming self-defense under SYG laws) killing a ing covered on national television (whether Columbine black individual is 350 percent more likely to be found as

in 1999, Virginia Tech in 2007, or at Umpqua Com justifiable homicide/shooting than if the a black shooter munity College in 2015), viewers see images of victims (claiming

self-defense under SYG laws) were to kill a being rushed out of the buildings with hands held high white individual (American Bar Association, 2014, p. 22). in the air, in order for local law enforcement to quickly These disturbing racial and gender disparities

have been determine the active shooter from the scores of poten extensively discussed by a number of scholars and studies tial victims. If some of the

potential victims to such an in the recent past, including the American Bar Associa-

attack are seen to have firearms in their opposition, it tion (2014), Stanley and Humberg (2012), Franks (2016), does not take much imagination to envision the chaos Roman

(2013), etc. and confusion such a visage might cause in the eyes of Occasionally advocates of SYG laws say that such law enforcement quickly trying to determine "friend" laws are

needed because it will prevent rampage shoot- from "foe" and to disable the identified "foe" as quickly ings (if one of the targeted victims is armed). This argu- as

possible. There is no evidence that allowing people ment is replete with fallacies and is an argument which to actively arm themselves to combat these attacks has assumes

the person carrying the concealed weapon prevent even one attack, and it greatly increases the ina knows how to use the weapon very effectively. In fact, bility of

responding law enforcement to respond in an Are "Stand Your Ground" Laws an Effective way to Stop Violent Crime? by Hickey

69

effective matter in distinguishing the innocent victims from the active shooters. To ŠESŐ

Conclusions For all of the foregoing reasons, the modern SYG laws are detrimental to public safety. They encourage a situation where individuals chose to escalate (and not de-escalate the situation), the laws have led to an increase in homi cides wherein SYG laws have been adopted, they have not deterred crime they way initially proposed, the laws were passed on the incorrect assumption that "duty to retreat" rules were obsolete and not effective, and the SYG laws have been found to have been applied in both a discrimi natory fashion as it has to do with both race and gender of the shooter and victim in a given case. OŠ bo ni bo o''ot to References American Bar Association (2014), "Preliminary Report and Recommendations," ABA National Taskforce on Stand Your Ground Laws Report (August 8, 2014). Baker, "Police Leaders Urge New

Set of Standards," New York Times (January 30, 2016) at A10. Brown, Maxell Richard (1991), No Duty to Retreat: Violence and Values in American History and Society, New York: Oxford University Press. Catafalmo, Christine (2007), "Stand Your Ground:

Florida's Castle Doctrine for the Twenty-First Century," Rutgers Journal of Law and Public Policy, Volume 4, pp. 505-539. Center for Individual Freedom (2005), “Interview with Marion Hammer," (November 3, 2005). Cheng, Cheng and Hoekstra, Mark (2013), "Does Strengthening Self-Defense Law Deter Crime or Esca late Violence? Evidence from Expansions to Castle Doctrine," Human Resources, Volume 48 (summer): pp. 821-854, available at http://wwweconweb.tamu. edu/mhoekstra/castle_doctrine.pdf Franks, Mary Ann (2016), "How Stand Your Ground Laws Hijacked Self-Defense,' in Guns and Contem porary Society: The Past, Present and Future of Firearm Policy, Volume III, ed. Glenn H. Utter, 2016, Santa Barbara: Praegar (ABC-CLIO). Gardner, Thomas J. and Anderson, Terry M. (2000), Belmont, CA: Wadsworth. Glinton, Vaughn G.S., Jr. (2013), "Southern Honor: An Analysis of Stand Your Ground Laws in Southern Jurisdictions," unpublished honors thesis, University of Central Florida, available at http://etd.fcla.edu/CF /CFH0004507/Glinton_Vaughn_G.S._201311_BA.pdf Levin, Benjamin (2010), "A Defensible Defense? Reex amining Castle Doctrine Statutes," Harvard Journal of Legislation, Volume 47, pp. 523, 528, 530-531. Loewy, Arnold (1987), Criminal Law in a Nutshell, 2nd

edition, St. Paul: West Publishing Company. Loewy, Arnold (2003), Criminal Law in a Nutshell, 4th

edition, St. Paul: Thomson-West. Lott, John R. (2013), "Perspective: In Defense of Stand Your

Ground Laws," Chicago Tribune (October 28, 2013). Lott, John R. (2013), Testimony before the U.S Senate

Judiciary Committee's Subcommittee on the Con stitution, Civil Rights, and Human Rights, at http:// www.judiciary.senate.gov/imo/media/doc/10-29 -13LotTestimony.pdf (October 29, 2013) (last accessed on March 12, 2016), McClellan, Chandler B. and Erdal Tekin (2012), "Stand Your Ground Laws, Homicides, and Injuries," in National Bureau of Economic Working Paper No. 18187, available at http://nber.org/papers/w18187 Megale, B. Elizabeth (2010), "Deadly Combinations: How Self-Defense Laws Pairing Immunity with Pre sumption of Fear Allows Criminals to Get Away with Murder," American Journal of Trial Advocacy, Volume 48, pp. 1000-1007. Mischke, Phillip (1981), “Recent Development: Crimi nal Law-Homicide-Self-Defense-Duty to Retreat:

State v. Kennamore," Tennessee Law Review. Roman, John (2013), Testimony before the U.SSenate Judi ciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights, at http://www.urban .org/sites/default/files/alfresco/publications-pdfs/904 607-Stand-Your-Ground-Laws-Civil-Rights-and-Public Safety-Implications-of-the-Expanded-Use-of-Deadly Force.PDF Schmalleger, Frank (2002), Criminal Law Today, 2nd edi tion, New Jersey: Prentice Hall. Schorsch, Peter, Gaetz, Don, and Gaetz, Matt (2012), "Op-ed: Standing Up for 'Stand Your Ground'," SaintPetersBlog (May 2, 2012). Stanley, Kameel and Connie Humburg (2012), "Many Killers Who go Free with Florida 'Stand Your Ground' Law Have History of Violence," Tampa Bay Times, July 20, 2012. Stoughton, Seth (2014), "How

Police Training Contributes to Avoidable Deaths," The Atlantic, December 12, 2014. Utter, Glenn H. (2016), "Stand your Ground Laws: Avoiding Prosecution," in ABC-CLIO Enduring Issues database, at http://issues2.abc-clio.com Vendatam, Shankar (2013), "Stand Your Ground Linked to Increase in Homicides," National Public Radio, January 2, 2013, available at http://www.npr.org/2013/01/02/16 7984117/stand-your-ground-linked-to-increase-in homicide Weaver, L. Zachary (2008), "Florida's Stand Your Ground Law: The Actual Effects and The Need for Clarifica tion," The University of Miami Law Review, Volume 68, pp. 395-417. Zbrzenj, Lydia (2012), "Florida's Controversial Gun Policy: Liberally Permitting Citizens to Arm Themselves 70 Taking Sides: Clashing Views in Crime and Criminology, 13/e

and Broadly Recognizing the Right of Act in Self- from 2011 to 2015. He has also served as a law professor Defense,” Florida Coastal Law Review, Volume 13, at the University of Tampa from 2000 to 2011 and is pp. 231-266. the author and/or editor of six books. Prior to teaching, Professor Beckman served

as a litigation attorney for the U.S. government, including the Treasury Department JAMES BECKMAN is a professor of Legal Studies at the Uni- and as an active duty Army judge advocate from 1994 versity of Central Florida (UCF) where he served as Chair to 1998. Are "Stand Your Ground" Laws an Effective way to Stop Violent Crime? by Hickey

!SSON d is

EXPLORING THE ISSUE ing the ent 794

Are “Stand Your Ground” Laws an Effective way to Stop Violent Crime?

Critical Thinking and Reflection 1. Do the gun lobby, firearms industry, and National Rifle Association (NRA) have too much power in the United States? 2. How do "stand your ground" laws differ from traditional self-defense laws? 3. What is the "duty to retreat" doctrine? 4. What are several justifications for the adoption of "stand your ground" laws? 5. How do "stand your ground" laws increase the rate of justifiable homicide verdicts in criminal cases?

Is There Common Ground? • Oklahoma • Pennsylvania "Stand your ground" laws have generated substantial con • South Dakota troversy in the U.S. legal system. Proponents of these laws • Tennessee argue that they are needed to support the Second Amend Texas

• Utah ment's right to bear arms and contend that they are a nec essary response to the problem of violent crime in society. West Virginia "SYG" law opponents, in contrast, believe that these laws are a threat to public safety and contravene the principle of It is probably no accident that many of the states social utility the idea that social policies should be geared listed above would be considered to be political "red to producing the greatest good for the greatest number of states." This indicates that they are generally conserva people. Moreover those opposed to the adoption of "SYG" tive states that often vote for Republican candidates. In laws contend that they encourage vigilantism and have led contrast, the states that have retained the more traditional to an increase in homicides in states where they have been approach to self-defense laws are more likely to be politi adopted. cal "blue states." This indicates that they are more liberal At the time of this writing, many states that have or progressive states that are more likely to vote for demo adopted "SYG” laws now include: cratic candidates in political elections. Thus, the movement to adopt "SYG" laws may rep

• Alabama resent a mirror of larger political trends within our nation.

• Alaska The fact that it has been so difficult recently to find com

• Arizona mon ground in our political process may suggest that it will Florida also prove challenging to develop a compromise position in • Georgia the "SYG” law debate. In any case, it will be interesting to • Indiana test this theory as time goes on: Will "SYG” laws lose trac • Kansas tion, or will they become the rule rather than the exception . Kentucky throughout the United States? Only time will tell. • Louisiana • Michigan • Mississippi

Additional Resources • Montana • Nevada The American Bar Association (ABA), "National Task

• New Hampshire Force on Stand Your Ground Laws: Report and

• North Carolina Recommendations." (September 2015). 721

Taking Sides: Clashing Views in Crime and Criminology, 13/e

Adam Weinstein, "How the National Rifle Associa tion and Its Allies Helped Spread a Radical Gun Law Nationwide," Mother Jones (June 7, 2012). N. Ackerman, M. Goodman, K. Gilbert,

C. Arroyo Johnson, M. Pagano, "Race, Law, and Health: Examination of Stand Your Ground and Defendant Convictions in Florida," Social Science & Medicine (vol. 142, pp. 194-201, October 2015).

Internet References ...

Santa Clara University, "Shot in the Dark: The Ethics of Stand Your Ground Laws." May, 2015. Marc Silver, "3 1/2 Minutes. 10 Bullets." A Documentary, April, 2015.

www.1mdb.com

www.scu.edu/ethics

Coca Currier, Pro Publica, "The 24 States That Have Sweeping Self-Defense Laws Just Like Florida's." March 22, 2012.

www.propublica.org