Stand-your-ground law

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 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."[1]

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 (e.g., being robbed and beaten while smoking marijuana inside a the home of a friend)[1].

Stand-your-ground laws effectively extends the Castle Doctrine from the home (whether a house, apartment, mobile home or any other regular place of abode), to any place a person has a legal right to be.

At common law, self-defence claims are not valid if the defendant could have safely retreated from danger. The Castle Doctrine is an exception to this duty to retreat. It gives immunity from liability to individuals who acted in self-defence in the home even if they could have safely retreated from the threat and failed to do so.

Stand-your-ground laws eliminate the retreat requirement at any location the defendant has a legal right to be.[2]

United States

Laws

Stand your ground law by US jurisdiction
  Stand-your-ground law
  Stand-your-ground in practice
  Stand-your-ground from within one's vehicle
  Castle doctrine only; duty to retreat in public
  Duty to retreat

The states that have legislatively adopted stand-your-ground laws are Alabama,[3] Alaska,[4] Arizona,[5] Florida,[6] Georgia, Indiana, Iowa,[7] Kansas,[8] Kentucky, Louisiana,[5] Michigan,[5] Mississippi, Missouri,[9] Montana,[5] Nevada, New Hampshire,[5] North Carolina (Stand Your Ground law (N.C.G.S. 14 51.3)), North Dakota, Ohio, Oklahoma,[5] Pennsylvania,[10] South Carolina, South Dakota, Tennessee,[5] Texas,[11] Utah,[12] West Virginia,[5] Wisconsin.[13]

The states that have adopted stand-your-ground in practice,[14] either through case law/precedent, jury instructions or by other means, are California,[15][16] Colorado,[17][18] Idaho, Illinois, New Mexico, Oregon, Virginia,[19] and Washington.

For example, Michigan's stand-your-ground law, MCL 780.972, provides that "[a]n individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if . . . [t]he individual honestly and reasonably believes that the use of deadly force is necessary to prevent" the imminent death, great bodily harm, or sexual assault of himself or another individual.[20]

Controversy

Stand-your-ground laws are frequently criticized and called "shoot first" laws by critics, including the Brady Campaign to Prevent Gun Violence.[21] In Florida, self-defense claims tripled in the years following enactment.[21][22] 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.[21] 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."[23][24]

In Florida, a task force examining the law heard testimony that the law is "confusing".[25] 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.[25] 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."[26] 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.[27] 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.[28]

Racial outcomes

Research into how race affects outcomes of stand your ground cases has resulted in mixed answers, with some sources claiming significant racial disparity, while others find no bias.

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[29]. 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.[29][30] 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.[29][30] 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.[31] 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.[32] 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.[33]

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.[34][35][36] However, their report, contrary to those cited above, found no difference in Florida cases in the way in which defendants claiming self-defense under the law are treated regardless of race, 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.[34][36] 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.[34][35][36]

Effect on crime rates

The laws' effect on crime rates is disputed between supporters and critics of the laws. Justifiable homicides have been found to have increased by 8 percent in states with stand-your-ground laws.[29] 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.[37] 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.[38][39]

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.[40]

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.[41]

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.[42] Violent crime data for 1995 – 2015 has been published by the Florida Department of Law Enforcement.[43]

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.[44]

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 it — which translates to roughly 600 additional homicides per year. These homicides are classified by police as criminal homicides, not as justifiable homicides."[45]

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."[46] In 2016, Mark Gius published a study that found that stand-your-ground laws were not associated with lower crime rates.[47]

A widely reported[48] 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".[49][50] The study was criticized by gun rights advocate John Lott's Crime Prevention Research Center for studying only one state.[48] 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.[51] 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."[52]

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.

In both cases force used must be reasonable in the circumstances as the person perceived them to be, unless the person is attacked in their own home, whereupon force will only be regarded as unreasonable if it was "grossly disproportionate".

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[53] 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.[54]

Germany

German law allows self-defense against an unlawful attack.[55] If there is no other possibility for defense, it is generally allowed to use even deadly force without a duty to retreat.[56] However, there must not be an extreme imbalance ("extremes Missverhältnis") between the defended right and the chosen method of defense.[57] In particular, in case firearms are used, a warning shot must be given when defending a solely material asset.[58] Nevertheless, due to the low circulation of firearms in Germany the impact of this law is not all that strong.

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 be—

(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 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

References

  1. 1 2 Dawkins v. State, 252 P.3d 214 (Okla. 2011)
  2. ↑ Florida Statutes Title XLVI Chapter 776
  3. ↑ Ala. Code 13A-3-23(b): "A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his ground."
  4. ↑ Eaton, Daysha (2013-06-20). "Parnell Signs Bills, Resolutions Supporting Gun Rights | Alaska Public Media". Alaskapublic.org. Retrieved August 23, 2014.
  5. 1 2 3 4 5 6 7 8 Martosko, David (April 1, 2012) "'Stand your ground' laws not just GOP policy, records show" The Daily Caller. Retrieved April 3, 2012.
  6. ↑ "Title XLVI Chapter 776: JUSTIFIABLE USE OF FORCE". The 2013 Florida Statutes. The Florida Legislature. Retrieved April 15, 2014.
  7. ↑ NRA-ILA. "NRA-ILA | Iowa: Governor Branstad Expands the Second Amendment Rights of Gun Owners Across Iowa". NRA-ILA. Retrieved 2017-04-14.
  8. ↑ "States That Have Stand Your Ground Laws". FindLaw. Retrieved 6 October 2014.
  9. ↑ Bott, Kurt Erickson, Celeste. "Missouri Senate overrides bill allowing concealed carry without a permit". Retrieved 2016-09-15.
  10. ↑ "Pennsylvania’s Stand Your Ground Law Mirrors Florida’s", Public Source, March 21, 2012
  11. ↑ "Gov. Perry Signs Law Allowing Texans to Protect Themselves", Office of Governor Rick Perry Press Release, March 27, 2007
  12. ↑ 76-2-405 "Force in defense of habitation" Check |url= value (help). Utah criminal Code.
  13. ↑ Walker signs 'castle doctrine' bill, other measures
  14. ↑ ""Stand Your Ground" Laws | Law Center to Prevent Gun Violence". smartgunlaws.org. Retrieved 2017-01-12.
  15. ↑ Penal Code §§ 197, 198.5, Legislative Counsel, State of California, retrieved April 3, 2012
  16. ↑ "CALCRIM No. 505. Justifiable Homicide". CaliforniaJuryInstructions.Net. January 2006. Retrieved April 3, 2012.
  17. ↑ People v. Toler, 9 P.3d 341 (Colo. 2000)
  18. ↑ Cassels v. People, 92 P.3d 951 (Colo. 2004)
  19. ↑ "Virginia Concealed Carry Permit Information". USA Carry. Retrieved September 10, 2013.
  20. ↑ "Self-Defense Act". Michigan Legislature. Retrieved July 16, 2013.
  21. 1 2 3 "Florida 'Stand Your Ground' law could complicate Trayvon Martin teen shooting case". MSNBC. March 20, 2012. Retrieved March 21, 2012.
  22. ↑ "Deaths Nearly Triple Since 'Stand Your Ground' Enacted". CBS Miami. 2011-03-20. Retrieved March 23, 2012.
  23. ↑ Goodnough, Abby. "Florida Expands Right to Use Deadly Force in Self-Defense". The New York Times. nytimes.com. Retrieved March 23, 2012.
  24. ↑ Goodman, Howard. "NRA’s Behind-the-Scenes Campaign Encouraged ‘Stand Your Ground’ Adoption". Florida Center for Investigative Reporting. fcir.org. Retrieved March 23, 2012.
  25. 1 2 "Trayvon Martin case: Florida task force told 'stand your ground' law confusing". TheGrio. April 6, 2012. Retrieved April 6, 2012.
  26. ↑ Holder, Eric. "Remarks as Prepared for Delivery by Attorney General Eric Holder at the NAACP Annual Convention" (PDF). Retrieved July 16, 2013.
  27. ↑ Jacob Sullum (2013-07-15). "Zimmerman's Prosecutors Did Not Think They Were Trying a 'Stand Your Ground' Case - Hit & Run". Reason.com. Retrieved August 23, 2014.
  28. ↑ Fair, Madison. "Dare defend: standing for stand your ground". Law and Psychology Review. 38.
  29. 1 2 3 4 Jonsson, Patrik (August 6, 2013). "Racial bias and 'stand your ground' laws: what the data show". Christian Science Monitor. Retrieved May 3, 2014.
  30. 1 2 Roman, John K. "Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report Data" (PDF). http://www.urban.org/UploadedPDF/412873-stand-your-ground.pdf. The Urban Institute. Retrieved June 29, 2014. External link in |website= (help)
  31. ↑ Flatow, Nicole. "5 Disturbing Facts About The State Of Stand Your Ground". Retrieved 1 December 2014.
  32. ↑ http://www.pbs.org/wgbh/frontline/article/is-there-racial-bias-in-stand-your-ground-laws/
  33. ↑ Ackermann, Nicole; Goodman, Melody S.; Gilbert, Keon; Arroyo-Johnson, Cassandra; Pagano, Marcello (October 2015). "Race, law, and health: Examination of ‘Stand Your Ground’ and defendant convictions in Florida". Social Science & Medicine. 142: 194–201. doi:10.1016/j.socscimed.2015.08.012.
  34. 1 2 3 "Florida's stand your ground law". Tampa Bay Times. December 23, 2013. Retrieved July 14, 2014.
  35. 1 2 Hundley, Kris; Martin, Susan Taylor; Humburg, Connie (June 1, 2012). "Florida 'stand your ground' law yields some shocking outcomes depending on how law is applied". Tampa Bay Times. Retrieved May 16, 2014.
  36. 1 2 3 Martin, Susan Taylor; Hundley, Kris; Humburg, Connie (June 2, 2012). "Race plays complex role in Florida's 'stand your ground' law". Tampa Bay Times. Retrieved July 14, 2014.
  37. ↑ Lott, John. More Guns Less Crime. Table 10.14 "Time impact of the Castle Doctrine on violent crime rates"
  38. ↑ Cheng, Cheng; Hoekstra, Mark (2012). "Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine" (PDF). Retrieved September 19, 2012.
  39. ↑ Palazzolo, Joe (June 11, 2012). "Study Says 'Stand Your Ground' Laws Increase Homicides". Wall Street Journal. Retrieved September 19, 2012.
  40. ↑ McClellan, Chandler; Tekin, Erdal (June 2012). "Stand Your Ground Laws, Homicides, and Injuries". Bulletin on Aging and Health. NBER Working Paper No. 18187.
  41. ↑ Jansen, Steven; Nugent-Borakove, M. Elaine. "Expansions to the Castle Doctrine: Implications for Policy and Practice" (PDF). National District Attorneys Association. Retrieved June 28, 2013.
  42. ↑ "Crime rates in Florida have dropped since 'stand your ground,' says Dennis Baxley". @politifact. Retrieved 2016-12-06.
  43. ↑ "Florida Department of Law Enforcement - Violent Crime". www.fdle.state.fl.us. Retrieved 2016-12-06.
  44. ↑ Ren, L.; Zhang, Y.; Zhao, J. S. (27 December 2012). "The Deterrent Effect of the Castle Doctrine Law on Burglary in Texas: A Tale of Outcomes in Houston and Dallas". Crime & Delinquency. 61 (8): 1127–1151. doi:10.1177/0011128712466886.
  45. ↑ Coleman, Christina. "Kill At Will: Stand Your Ground Laws Contribute To 600 Additional Homicides A Year (DETAILS)". Retrieved 1 December 2014.
  46. ↑ Chamlin, Mitchell B.; Krajewski, Andrea E. (29 December 2015). "Use of Force and Home Safety: An Impact Assessment of Oklahoma’s". Deviant Behavior: 1–9. doi:10.1080/01639625.2015.1012027.
  47. ↑ Gius, Mark (September 2016). "The relationship between stand-your-ground laws and crime: A state-level analysis". The Social Science Journal. 53 (3): 329–338. doi:10.1016/j.soscij.2016.01.001.
  48. 1 2 "Misleading Journal of the American Medical Association research about Florida's Stand Your Ground Law - Crime Prevention Research Center". Crime Prevention Research Center. 2016-11-28. Retrieved 2017-01-11.
  49. ↑ Humphreys, David K.; Gasparrini, Antonio; Wiebe, Douglas J. "Evaluating the Impact of Florida’s "Stand Your Ground" Self-defense Law on Homicide and Suicide by Firearm". JAMA Internal Medicine. doi:10.1001/jamainternmed.2016.6811.
  50. ↑ "A study by the Journal of the American Medical Association suggests stand-your-ground laws result in more fatal shootings". The Economist. Retrieved 2017-01-11.
  51. ↑ Branca, Andrew. "What to Make of the New Study of Florida’s ‘Stand Your Ground’ Law". National Review. Retrieved 2016-11-18.
  52. ↑ Mohney, Gillian (November 14, 2016). "Florida Homicide Rate Increased After Passage of 'Stand Your Ground' Law, Study Finds". ABC News.
  53. ↑ Supreme Court of the Czech Republic (24 October 2001), Decision No. 5 Tz 189/2001 (in Czech), Brno
  54. ↑ Novotný, Oto (2004). Trestní právo hmotné. Praha: ASPI.
  55. ↑ "Notwehrparagraph".
  56. ↑ Heinrich, Bernd (2005). Strafrecht - Allgemeiner Teil I (in German). Stuttgart: Kohlhammer. p. 110. ISBN 3-17-018395-8.
  57. ↑ Heinrich, Bernd (2005). Strafrecht - Allgemeiner Teil I. Stuttgart: Kohlhammer. p. 123. ISBN 3-17-018395-8.
  58. ↑ Heinrich, Bernd (2005). Strafrecht - Allgemeiner Teil I (in German). Stuttgart: Kohlhammer. p. 126. ISBN 3-17-018395-8.

Further reading

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