This is my third (and hopefully final actually, one more coming!) post on a recently published social sciences paper: “Race, law, and health: Examination of ‘Stand Your Ground’ (SYG) and defendant convictions in Florida” (Social Science & Medicine, Volume 142, October 2015, pages 194-201; pay-walled )

The paper applied a Public Health Critical Theory Methodology to the question of whether Florida’s SYG law has a quantifiable racial bias. The key finding of the paper is that a“defendant is two times … more likely to be convicted in a case that involves White victims compared to those involving non-White victims” in the context of Florida’s SYG law.

In my first post on “Race, law, and health” I debunked the paper’s key finding on the basis that the large majority of the criminal cases in their data set did not involve “Stand-Your-Ground, ” meaning the Florida statute that relieves one of a duty to retreat before acting in self-defense, and that allows a defender to “stand his or her ground.” This “Stand-Your-Ground” can be found at §776.012 and elsewhere in Florida statutes.

See: “New ‘Scientific’ Stand-Your-Ground Study Is Ignorant of the Law”

In my second post, I remarked on email correspondence I’d received from the journal, Social Science & Medicine, which had published the paper. They forwarded me communication from one of the paper’s authors in which they explain that:

“We use the term “Stand Your Ground” as it has been used in the media around highly publicized cases (e.g., Trayvon Martin and George Zimmerman) and not the legal definition provided below [by Branca].”

I replied to the publisher’s kind email by noting that “media definitions” of laws are not what is actually applied in court, and therefore could not possibly effect conviction rates in any way whatever.

“SYG-retreat” versus “SYG-immunity”

It was then suggested to me that perhaps the paper’s authors were using “media definition” to mean Stand-Your-Ground not in the correct sense of a lack of a legal duty to retreat (“SYG-retreat”) but rather in the incorrect sense to mean “self-defense immunity” (“SYG-immunity”, see FL statute §776.032). While the latter is incorrect, it is quite common.

Well, OK, let’s take a look, shall we?

Plugging “SYG-immunity” into Paper’s Methodology

Unfortunately, the paper is even more of a train wreck if it intended to study the effect on conviction rates of “SYG-immunity” than if it intended to study the effect of conviction rates of “SGY-retreat.”

The reason for this is that “SYG-immunity,” simply can not have an impact on conviction rates at all, and to think that it could reflects an ignorance of how that law operates.

In contrast, at least “SYG-retreat” has the potential to impact conviction rates. The paper’s flaw, assuming they meant “SYG-retreat,” wasn’t necessarily in their hypothesis, it was in their methodology for testing that hypothesis.

“SYG-retreat” has this potential to impact conviction rates because it changes the substantive definition of what constitutes self-defense, by removing the element of avoidance (while leaving the other four elements of self-defense law in place). Thus there are some people who qualify for self-defense in a “SYG-retreat” state who would not have so qualified in a “duty to retreat state”: e.g., cases where the defender could have safely retreated and failed to do so.

It is therefore at least a reasonable hypothesis that adopting “SYG-retreat” could likely affect conviction rates in self-defense cases, because it changes the very criteria by which self-defense is determined. One would simply need a valid methodology to test that hypothesis (most definitely not the methodology used in “Race, law and health”).

“SYG-immunity,” in contrast, doesn’t change the criteria for what constitutes self-defense at all. All “SYG-immunity” does is allow a person to qualify for immunity from prosecution if their use-of-force has otherwise been determined to be lawful self-defense.

To put it another way, immunity does not determine whether a use-of-force was a lawful act of self-defense, immunity is merely the consequence of an independent determination that a use-of-force was a lawful act of self-defense.

Horse. Cart.

Because “SYG-immunity” itself in no way changes whether a use-of-force was lawful or unlawful, it cannot possibly have an impact on conviction rates. All the immunity statute can do is reduce the numbers of people who are wrongfully prosecuted—which sure sounds to me like a social good.

(I should mention that this is all in the context of “SYG-immunity in its current “preponderance of the evidence” form—the proposed changes to Florida’s “SYG-immunity” statute has other implications I’ve written on here: “Major Change Proposed for Florida Self-defense Immunity Law.”)

So the authors’ key finding that Florida’s Stand-Your-Ground law has an impact on conviction rates makes little sense whether they used the (legally correct) “SYG-retreat” definition (at least, with the authors’ flawed methodology) or the (common mistake of) “SYG-immunity” definition (and that’s with any data set).

Let’s Do Some Pretend “Science”

But let’s pretend for a moment that it is not impossible for “SYG-immunity” to impact conviction rates. Instead, let’s don our lab coats and hypothesize that “SYG-immunity” could have an impact on conviction rates. Is the methodology employed by the authors of “Race, law, and health” a reasonable means by which to test that hypothesis?

Brace yourselves: I’m afraid not.

Of the 237 records in the Tampa Bay Times database, fully 96 of them simply make no reference to a “SYG-immunity” hearing or finding at all. None. For all we know “SYG-immunity” played no role whatever in those 96 cases—indeed, in some of the cases the Tampa Bay Times itself cites authorities explicitly stating that to be the case.

(So how did those cases end up in the Tampa Bay Times “stand your ground” database? You’ll have to ask the Tampa Bay Times. While you’re at it, maybe ask the authors of “Race, law, health” why they didn’t make the effort this small-town Massachusetts lawyer made and actually evaluate each of the 237 cases individually to ensure that each was in fact a “Stand-Your-Ground” case of any type, if only for quality assurance purposes.)

In any case, take out those 96 cases that make no reference whatever to “SYG-immunity” and we’re left with a maximum of 141 [237 – 96 = 141] cases that could potentially be “SYG-immunity” cases.

Of these 141 cases, fully 70 (50%) resulted in adjudications of guilt. This means that there was evidence of guilt beyond a reasonable doubt, which is vastly more than what is needed to deny “SYG-immunity.” In these cases, then, the theoretical availability of “SYG-immunity” was moot, as the outcome would necessarily have been the same whether or not there existed a “SYG-immunity” law: guilt.  So “SYG-immunity” is irrelevant to these 70 cases.

Now we’re down to just 71 cases, out of the original 237, that could even potentially be correctly classified as “SYG-immunity” cases.

Yet the authors’ dataset for “Race, law, and health” included 204 cases.

A little bit of simple math tells us that this necessarily means that fully 65% of the authors’ dataset simply could not have consisted of “SYG-immunity” cases. (For the social scientists: (204 – 71)/204 = 65%. Look, Ma, no SAS logistic regression!)

Sad Trombone Sound

So even if “SYG-immunity” could theoretically impact conviction rates (it cannot, for the reasons already described), that hypothesis certainly cannot be tested using the methodology and dataset used by the authors of “Race, law, and health.

I guess that’s what passes for “science” these days.

–-Andrew, @LawSelfDefense

[Featured Image Source: Coalition to Stop Gun Violence objects to Andrew Branca speaking at Campbell U Law School (Update – UC Berkeley too)]

Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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