A stand-your-ground law (sometimes called "line in the sand" or "no duty to retreat" law) is a justification in a criminal case, whereby defendants can "stand their ground" and use force without retreating, in order to protect and defend themselves or others against threats or perceived threats. An example is where there is no duty to retreat from any place where they have a lawful right to be, and that they may use any level of force if they reasonably believe the threat rises to the level of being an imminent and immediate threat of serious bodily harm and or death. One case describes "the 'stand your ground' law... a person has a right to expect absolute safety in a place they have a right to be, and may use deadly force to repel an unlawful intruder."
Justification using stand-your-ground laws may be limited when "[the defendant] was engaged in illegal activities and not entitled to benefit from provisions of the 'stand your ground' law". This may be the case even if the illegal conduct the defendant was engaged in had nothing to do with the threat which instigated his use of deadly force. For instance, using an illegally obtained weapon in self defense to avoid being robbed and beaten is not justified by this law.
The castle doctrine is a common law doctrine stating that persons have no duty to retreat in their home, or "castle", and may use reasonable force, including deadly force, to defend their property, person, or another. Outside of the abode, however, a person has a duty to retreat, if possible, before using deadly force. Castle doctrine and "stand-your-ground" laws are acceptable defenses for people who have been charged with criminal homicide.
At common law, self-defense claims are not valid if the defendant could have safely retreated from danger (duty to retreat). The castle doctrine is an exception to this. It gives immunity from liability to individuals who acted in self-defense in the home even if they could have safely retreated from the threat and failed to do so. The duty to retreat is a legal requirement in some jurisdictions that a threatened person cannot stand one's ground and apply lethal force in self-defense, but must retreat to a place of safety instead. Deadly force or lethal force is force with the intent of serious bodily injury or death to another person. In most jurisdictions it is only accepted under conditions of extreme necessity and last resort.
Stand-your-ground laws eliminate the retreat requirement at any location the defendant has a legal right to be, though this varies from state to state.
United States
What Is Self Defense Under Florida Law? - http://www.orlandocriminaldefenselawyer.com orlando-violation-probation.html - What Is Self Defense? Orlando criminal defense attorney explains what constitutes self defense under Florida Law....
Laws
The states that have legislatively adopted stand-your-ground laws are Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.
The states that have adopted stand-your-ground in practice, either through case law/precedent, jury instructions or by other means, are California, Colorado, Idaho, Illinois, New Mexico, Oregon, Virginia, and Washington.
States that have adopted stand-your-ground, but limit it to only when a person is within their vehicle, are North Dakota, Ohio, and Wisconsin.
The states that have castle doctrine only with the duty to retreat in public are Arkansas, Connecticut, Delaware, Maryland, Massachusetts, Minnesota, Nebraska, New York, New Jersey, Rhode Island, and Wyoming. This means that people can use deadly force in their home, car, or other form of abode but have to retreat in public.
Controversy
Stand-your-ground laws are frequently criticized and called "shoot first" laws by critics, including the Brady Campaign to Prevent Gun Violence. In Florida, self-defense claims tripled in the years following enactment. The law's critics argue that Florida's law makes it very difficult to prosecute cases against individuals who shoot others and then claim self-defense. The shooter can argue that he felt threatened, and in most cases, the only witness who could have argued otherwise is the deceased. Before passage of the law, Miami police chief John F. Timoney called the law unnecessary and dangerous in that "[w]hether it's trick-or-treaters or kids playing in the yard of someone who doesn't want them there or some drunk guy stumbling into the wrong house, you're encouraging people to possibly use deadly physical force where it shouldn't be used." This goes against the counter argument stating that implementing a duty-to-retreat places the safety of the criminal above a victim's own life.
In Florida, a task force examining the law heard testimony that the law is "confusing". Those testifying to the task force include Buddy Jacobs, a lawyer representing the Florida Prosecuting Attorney's Association. Jacobs recommended the law's repeal, feeling that modifying the law would not fix its problems. Florida governor Rick Scott plans his own investigation into the law. In a July 16, 2013 speech in the wake of the jury verdict acquitting George Zimmerman of charges stemming from the shooting death of Trayvon Martin, Attorney General Eric Holder criticized stand-your-ground laws as "senselessly expand[ing] the concept of self-defense and sow[ing] dangerous conflict in our neighborhoods." The defendant, George Zimmerman, claims he was restrained at the time of the shooting, thus allowing no option for retreat and making 'stand your ground' irrelevant to the case. Florida's legislature is currently considering a bill that would allow people to show a gun or fire a warning shot during a confrontation without drawing a lengthy prison sentence. There is a bill moving through Republican legislature that would require the prosecution to prove that the defendant's use of self-defense is not valid. If this passes, prosecutors will have to try a case twice at a hearing and a trial which would make it easier for defendants to argue against prosecution on the basis of their fears.
Impact
Racial disparity
In 2012, in response to the Trayvon Martin case, the Tampa Bay Times compiled a report on the application of stand your ground, and also created a database of cases where defendants sought to invoke the law. Their report found no racial disparity in Florida cases in the way in which defendants claiming self-defense under the law are treated, with white subjects being charged and convicted at the same rate as black subjects, and results of mixed-race cases were similar for both white victims of black attackers and black victims of white attackers. Shooters of black attackers overall were more successful at using the law than shooters of white attackers, regardless of the race of the victim claiming self-defense, but analysis showed that black attackers were also more likely to be armed and to be involved in committing a crime, such as burglary, when shot.
A Texas A&M study found that when whites use the stand-your-ground defense against black attackers they are more successful than when blacks use the defense against white attackers. A paper from The Urban Institute which analysed FBI data found that in stand-your-ground states, the use of the defense by whites in the shooting of a black person is found to be justifiable 17 percent of the time, while the defense when used by blacks in the shooting of a white person is successful 1 percent of the time. In non-stand-your-ground states, the shooting of a black person by a white is found justified approximately 9 percent of the time, while the shooting of a white person by a black is found justified approximately 1 percent of the time. According to the Urban Institute, in Stand Your Ground states, white-on-black homicides are 354 percent more likely to be ruled justified than white-on-white homicides. The paper's author noted that the data used do not detail the circumstances of the shooting, which could be a source of the disparity. They also noted that the total number of shootings in the FBI dataset of black victims by whites was 25. A 2015 study found that cases with white victims are two times more likely to result in convictions under these laws than cases with black victims.
The law relating to Native Americans has caused contreversy due to the fact that state law supersedes reservation/tribal law. If a tribal member uses self-defense on their reservation, they will be protected in tribal court. This would not necessarily be the case if it was handled in federal court due to the state having different self-defense laws than the reservation. In other words, tribe members are protected in one place, but not the other. Due to the Supreme Court case Oliphant v. Suquamish in 1978, tribes were stripped of the right to arrest and prosecute non-Indians who commit crimes on Indian land.
Crime
A 2018 RAND Corporation overview of existing research concluded that "there is moderate evidence that stand-your-ground laws may increase homicide rates and limited evidence that the laws increase firearm homicides in particular." Justifiable homicides have been found to have increased by 8 percent in states with stand-your-ground laws. Economist John Lott says that states adopting stand-your-ground/castle doctrine laws reduced murder rates by 9 percent and overall violent crime by 11 percent, and that occurs even after accounting for a range of other factors such as national crime trends, law enforcement variables (arrest, execution, and imprisonment rates), income and poverty measures, demographic changes, and the national average changes in crime rates from year-to-year and average differences across states. One study found that the adoption of stand-your-ground laws caused a statistically significant increase in the raw homicide rate, and had only a very small positive effect on deterrence of crime. The authors of the study were unable to determine what percentage of the increase was justifiable homicide, due to the reporting of homicide to the FBI often lacking notation whether the homicide was justifiable or not.
Another analysis of stand-your-ground laws by economists at Georgia State University, using monthly data from the U.S. Vital Statistics, found a significant increase in homicide and injury of whites, especially white males. They also analyzed data from the Health Care Utilization Project, which revealed significantly increased rates of emergency room visits and hospital discharges related to gun injuries in states which enacted these laws.
In a 2007 National District Attorneys Association symposium, numerous concerns were voiced that the law could increase crime. This included criminals using the law as a defense for their crimes, more people carrying guns, and that people would not feel safe if they felt that anyone could use deadly force in a conflict. The report also noted that the misinterpretation of clues could result in use of deadly force when there was, in fact, no danger. The report specifically notes that racial and ethnic minorities could be at greater risk because of negative stereotypes.
Florida's stand-your-ground law went into effect on October 1, 2005. Florida state representative Dennis Baxley, an author of the law, said that the violent crime rate has dropped since the enactment of the law, though he said there may be many reasons for the change. Others have argued that the law may lead to an increase in crime. Violent crime data for 1995 â€" 2015 has been published by the Florida Department of Law Enforcement.
In 2012, a study was published which found that after the Joe Horn shooting controversy in 2007 publicized Texas' stand-your-ground law, burglaries decreased significantly in Houston, but not in Dallas, over a 20-month period.
A 2013 study in the Journal of Human Resources claims that Stand Your Ground laws in states across the U.S. contribute to 600 additional homicides a year. According to Mark Hoestra, co-author of the study: "We asked what happened to homicide rates in states that passed these laws between 2000 and 2010, compared to other states over the same time period. We found that homicide rates in states with a version of the Stand Your Ground law increased by an average of 8 percent over states without itâ€"which translates to roughly 600 additional homicides per year. These homicides are classified by police as criminal homicides, not as justifiable homicides." Although police officers make up for additional homicides, they are justified. These are not classified as murder because the officers are acting in the line of duty. Police are not required to retreat when acting in the line of duty.
A 2015 study found that the adoption of Oklahoma's stand-your-ground law was associated with a decrease in residential burglaries, but also that the law had "the unintended consequence of increasing the number of non-residential burglaries." In 2016, Mark Gius published a study that found that stand-your-ground laws were not associated with lower crime rates.
A widely reported 2016 study in the Journal of the American Medical Association compared homicide rates in Florida following the passage of its "stand your ground" self-defense law to the rates in four control states, New Jersey, New York, Ohio and Virginia, which have no similar laws. It found that the law was associated with a 24.4% increase in homicide and a 31.6% increase in firearm-related homicide, but no change in rates of suicide or suicide by firearm, between 2005 and 2014. It noted that, "[c]ircumstances unique to Florida may have contributed to our findings, including those that we could not identify," and "[o]ur study examined the effect of the Florida law on homicide and homicide by firearm, not on crime and public safety". The study was criticized by gun rights advocate John Lott's Crime Prevention Research Center for studying only one state. Gun enthusiast and attorney Andrew Branca, writing in National Review, criticized the study for not distinguishing between justifiable homicides and murder, and for relying solely on statutory laws while overlooking case law (i.e. Virginia) in determining the data set. The study was praised by Duke University professor Jeffrey Swanson for its use of other states as controls, saying "[t]hey look at comparable trends in states that didn't pass the law and don't see the effect."
Other jurisdictions
England and Wales
The common law jurisdiction of England and Wales has a stand-your-ground law rooted in the common law defence of using reasonable force in self-defence.
At English common law there is no duty to retreat before a person may use reasonable force against an attacker, nor need a person wait to be attacked before using such force, but one who chooses not to retreat, when retreat would be a safe and easy option, might find it harder to justify his use of force as 'reasonable'.
Any force used must be reasonable in the circumstances as the person honestly perceived them to be, after making allowance for the fact that some degree of excess force might still be reasonable in the heat of the moment.
It was once thought that in 'householder defence' cases, excessive force would be regarded as unreasonable only if "grossly disproportionate", but that view has twice been rejected by the courts. Grossly disproportionate force can never be reasonable, but lesser force might or might not be, depending on the circumstances. In R v Ray (2017) the Lord Chief Justice, giving the judgment of the Court of Appeal, said:
"If there is a threat of confrontation in the street, then the option to retreat may be important in determining whether the use of any force was reasonable. In the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable."
Czech Republic
There is no explicit stand-your-ground or castle doctrine provision in the laws of the Czech Republic, however there is also no duty to retreat from an attack and that has an effect similar to "stand your ground" provision. In order for a defense to be judged as legitimate, it may not be "manifestly disproportionate to the manner of the attack".
Germany
German law allows self-defense against an unlawful attack. If there is no other possibility for defense, it is generally allowed to use even deadly force without a duty to retreat. However, there must not be an extreme imbalance ("extremes Missverhältnis") between the defended right and the chosen method of defense. In particular, in case firearms are used, a warning shot must be given when defending a solely material asset. If the self-defense was excessive, its perpetrator is not to be punished if he exceeded on account of confusion, fear or terror . Nevertheless, due to the low circulation of firearms in Germany the impact of this law is not all that strong. Also, if the self-defense results in bodily harm to the attacker, there will always be criminal proceedings, and German judges are known to be rather meticulous in looking for reasons to count the defense as excessive, and the excess as not motivated by confusion, fear or terror.
Ireland
Under the terms of the Defence and the Dwelling Act, property owners or residents are entitled to defend themselves with force, up to and including lethal force. Any individual who uses force against a trespasser is not guilty of an offense if he or she honestly believes they were there to commit a criminal act and a threat to life. However, there is a further provision which requires that the reaction to the intruder is such that another reasonable person in the same circumstances would likely employ it. This provision acts as a safeguard against grossly disproportionate use of force, while still allowing a person to use force in nearly all circumstances.
The law was introduced in response to DPP v. Padraig Nally.
A person who uses such force as is permitted by section 2 in the circumstances referred to in that section shall not be liable in tort with respect to any injury, loss or damage arising from the use of such force.
The force used is only such as is reasonable in the circumstances as he or she believes them to beâ€"
(i) to protect himself or herself or another person present in the dwelling from injury, assault, detention or death caused by a criminal act,
(ii) to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or
(iii) to prevent the commission of a crime or to effect, or assist in effecting, a lawful arrest.
It does not matter whether the person using the force had a safe and practicable opportunity to retreat from the dwelling before using the force concerned.
This law does not apply to force used against a member of An Garda Siochána (Irish Police) or anyone assisting them, or a person lawfully performing a function authorised by or under any enactment.
See also
- Jury nullification
- Proxemics, the study of human use of space and the effects that population density has on behavior, communication, and social interaction
- Restorative justice
References
Further reading
- Palmer, Brian (July 16, 2013). "Do Other Countries Have 'Stand Your Ground' Laws? Or do they require you to slowly back away?". Slate. The Slate Group. Retrieved May 26, 2014.Â
- Lithwick, Dahlia (February 25, 2014). "'Stand Your Ground' Nation: America used to value the concept of retreat. Now we just shoot". Slate. The Slate Group. Retrieved May 26, 2014.Â
