‘Stand Your Ground’ Is Neither New Nor Unusual

Tampa Bay
Times reporter Peter Jamison offers a well-informed,
clear-headed
analysis of “stand your ground” laws that emphasizes three
crucial points:

1. The essence of “stand your ground” is the absence of
a duty to retreat for people attacked outside their homes.
Contrary to what
New York Times editorialists and other clueless
critics
claim, “stand your ground” does not mean a person is justified
in using lethal force when he “reasonably believes” it is necessary
to prevent death or serious injury. As Jamison notes, “the idea
that ‘reasonable belief’ in a threat justifies homicide prevails
throughout the country.” Furthermore, “it is not, as some observers
have claimed, carte blanche for killers to act on ungrounded fears,
but a test of what an ordinary, rational person would do in the
same circumstances.”

2. “Stand your ground” is not new. While “22
states…have enacted ‘stand your ground’-type statutes in the past
two decades,” Jamison writes, “an additional nine have established
through case law that there is no duty to retreat.” The California
Supreme Court, for example, “empowered its citizens to stand their
ground and use deadly force in public places about 120 years
ago.”

3. “Stand your ground” is the rule, not the
exception. “More than 225 million Americans live in states
where they have no duty to retreat, either because of ‘stand your
ground’ statutes or because of case law,” notes an
infographic accompanying Jamison’s article. “Far fewer
Americans—roughly 88 million—live in states where they have a duty
to retreat.”

In other words, there is no basis to the notion that Florida is
a crazy outlier when it comes to the circumstances in which people
attacked in public places are permitted to use deadly force.
Jamison does note two aspects of Florida’s self-defense law that
are unusual, but they have nothing to do with “stand your ground”
per se: The law prohibits the arrest of someone who claims to have
killed in self-defense unless there is probable cause to doubt that
claim, and it gives such a defendant the right to a pretrial
hearing where he can try to persuade a judge by a preponderance of
the evidence that the homicide was justified.

I wish that Jamison, who mentions the
George Zimmerman and
Michael Dunn cases, had noted the dearth of evidence that the
absence of a duty to retreat played a role in the outcomes of their
trials. It did not figure in their defenses, and it is hard to see
how it could have swayed jurors’ positions, assuming they
understood the law. (Jamison’s colleague Kris Hundley
made just that point about the Zimmerman case a couple of days
after his acquittal.) Jamison does note that Zimmerman’s jury would
have received essentially the same instructions if he had been
tried in Illinois, which has been a “stand your ground” state for

a lot longer than Florida has.

Another point it would have been worth exploring: Even in states
that impose a duty to retreat, it may be qualified so much that in
practice it is little different from “stand your ground.” In New
York, for example, the victim of a public assault is expected to
retreat rather than use lethal force only if he “knows” he can do
so “with complete personal safety” for himself and others.
Furthermore, there is an exception for someone who “reasonably
believes that [the] other person is committing or attempting to
commit a kidnapping, forcible rape, forcible criminal sexual act or
robbery.”

Toward the end of his article, Jamison speculates that maybe the
real problem with Florida is its nondiscretionary carry permit law,
or perhaps the combination of that law with the absence of a duty
to retreat. That is a can of worms he should not have opened so
casually. The issue surely deserves a more careful examination than
Jamison’s reference to an analysis by the Guardian
that found “a statistical correlation with an increase in
justifiable homicides” in “states with both SYG laws and the
weakest gun controls.” That gloss raises obvious questions about
cherry-picking, conflating correlation with causation, and assuming
that an increase in homicides deemed to be justified, which you
would expect to see even if the laws were working exactly as
intended, is necessarily a bad thing.

On the whole, however, Jamison’s piece is a welcome corrective
to the usual fact-free debate about “stand your ground” laws. It is
especially striking coming from the Tampa Bay
Times (formerly the St. Petersburg Times), which
has been
none too keen on Florida’s law.