Stand Your Ground

The price of the Second Amendment,like liberty, is eternal vigilance. Having lost several fights at the Supreme Court, the anti-gun left is gearing up for yet another fight over “stand your ground” (SYG)  laws.

The idea behind SYG laws is pretty simple. If you are confronted by an aggressor you are not obligated to retreat. As Jorge Amstelle writing in The Daily Caller says:

Let’s start with the obvious. SYG laws do not change the criteria for claiming legitimate self-defense or the use of lethal force. It is not enough to say you thought you saw a gun or that you were in fear for your life. The specifics have to be such that a reasonable person would feel the same way. Keep in mind that this reasonable person will be sitting in a comfortable chair, far away from danger, and dispassionately considering your argument. Absent clear physical evidence or witnesses it isn’t as easy to prove self-defense as the media makes it out to be.

The use of force also has to be proportional in most cases. If someone is simply threatening you with their words and gestures, you can’t shoot them no matter how scared you are. If you get in a fight with someone and were a participant in the altercation your ability to later claim self-defense if you use lethal force will be severely compromised. SYG changes none of this.

This is not a new discovery. The Supreme Court took up this issue in Brown versus United States (1921). Brown had been convicted of second degree murder after killing a knife-wielding assailant. Brown claimed — reasonably — self defense. But based on the judge’s instruction to the jury:

“it is necessary to remember, in considering the question of self-defense, that the party assaulted is always under the obligation to retreat so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm.”

Justice Oliver Wendell Holmes writing for the court majority disagreed:

Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing, not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth, it has tended in the direction of rules consistent with human nature. Many respectable writers agree that, if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that, if he kills him, he has not succeeded the bounds of lawful self-defense. That has been the decision of this Court. Beard v. United States,158 U. S. 550, 158 U. S. 559. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant, rather than to kill him. Rowe v. United States,164 U. S. 546, 164 U. S. 558. The law of Texas very strongly adopts these views, as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex.Cr.R. 28, 38. Baltrip v. State, 30 Tex.App. 545, 549.

Why is SYG important?

Charles Edward Debruce went to a neighbor’s house. An argument ensued. The neighbor produced a firearm and shot Debruce, wounding him. Debruce produced a firearm (so much for the ‘an armed society is a polite society’ argument, I guess) and shot the neighbor. Not wounding him. Debruce was arrested and tried for capital murder. That’s right, he’s shot and because he doesn’t retreat the prosecutors charge him with capital murder. A jury acquitted him. But without the ability to demand the right to self defense, Debruce could very well be on death row.

At the same time there are dozens and dozens of cases where it has been attempted and juries have declined. A convicted felon claimed he shot three people in self-defense. The laws specifically say you can’t be involved in an illegal activity, as convicted felons, in most states, can’t own firearms the man was convicted. A homeowner in Montana was convicted of murder for killing a burglar. As it turned out he was unhappy with the way local law enforcement was treating the rash of burglaries so he essentially baited a trap, waited for the burglar to take the bait, and shot him.

A guy named Robert J. Spitzer, a professor at one of the multitude of SUNY branches, has written a compendium of gripes that he says demands your right to defend yourself be curtailed. Relying on a study by the Tampa Bay Times he finds:

” Nearly 60 percent of those making self-defense claims when a person was killed had been arrested at least once before; a third of those had been accused of violent crimes in the past; over a third had illegally carried guns in the past or had threatened others with them.

Stand Your Ground claims succeeded 67 percent of the time, but in 79 percent of the cases, the assailant could have retreated to avoid the confrontation. In 68 percent, the person killed was unarmed.

This is just gibberish. Being arrested or accused hardly removes your need for self defense. As the arrest could not have resulted in conviction, otherwise under Florida’s law SYG could not have been invoked, that is doubly meaningless. We really don’t know how many could have retreated. That is a subjective determination that is abusive, as we saw in the Debruce case, and irrelevant, as Justice Holmes ruled.

Spitzer cites other studies by the Urban Institute which claim racial disparities and Texas A&M which claims an increase in homicides. John Lott takes these studies apart on his site.

Far from creating a “wild West” environment, SYG laws have brought reasonableness into the judicial process, requiring prosecutors to prove you acted illegally rather than requiring you to prove you acted reasonably. As Amstelle says:

In simple terms we need SYG laws because too often prosecutors in self-defense cases ended up doing exactly what Justice Holmes warns against, using their own detached reflection outside the presence of that uplifted knife to judge the legitimacy of the actions of another. Grand Juries go along and jurors are told how the state law says you have a duty to retreat if you can safely do so. Twelve people sitting in perfect safety get to decide if it was safe for you to retreat before they have to decide if it was OK for you to use lethal force to defend yourself.