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Media STILL Doesn’t Understand “Stand-Your-Ground”

Media STILL Doesn’t Understand “Stand-Your-Ground”

You can lead a writer to the law, but you can’t make him think.

I don’t suppose it will ever end–the mainstream media will continue to cover trials involving deadly force, will continue to blindly label them Stand-Your-Ground cases, and will continue to demonstrate its utter ignorance of what Stand-Your-Ground actually is.

The most recent example comes in the form of a Stand-Your-Ground piece written by a David Love, whose bio describes him as: “David A. Love is a writer based in Philadelphia. His work has appeared on CNN and been published by The Grio, The Progressive, and The Guardian.” Looks impressive, no?

Well, maybe the bio does. The piece on Stand-Your-Ground? Not so much.

I realize that David is almost certainly not responsible for the headline of the post, but let’s start there–after all, it’s how the piece is introduced to the reading public.

It’s also where the piece goes immediately off the rails:  “These are the States That Have ‘Stand Your Ground’ Laws.”  This point is then helpfully illustrated, literally, with a graphic image of the United States color coded to indicate which states qualify as “Stand-Your-Ground” states:  red-states are purportedly SYG, blue-states are purportedly non-SYG.  (That image is the featured pic at the top of this post. Interestingly, it was sourced in the Love’s piece as being from al Jazeera.com.  Huh.)

Before we dive into the errors of the illustrative map, however, let’s take a moment to refresh our recollection on what Stand-Your-Ground actually means, legally speaking: it simply means that the state does not impose a legal duty on an otherwise lawful defender to make use of a safe avenue of retreat before they can use force in defense of themselves or another.

Got it? Good.

Now let’s take a look at the 16 states indicated in the map as blue, and thus purportedly non-SYG that impose a legal duty retreat.

California? Nope, it’s a Stand-Your-Ground state, and has been since at least 1898.  Indeed, it’s arguably the most vigorous Stand-Your-Ground state in the country.  Not only may the defender stand their ground, they can actually pursue their attacker if necessary to their defense.  See jury instruction CALCRIM 505.

Colorado? Again, no, please see Cassels v. People, 92 P.3d 951 (CO Supreme Court 2004), there is no legal duty to retreat before acting in otherwise lawful self-defense.

Nevada? Nope, not a duty to retreat, according to § 200.120(2) which provides that there is no duty to retreat when one is otherwise lawfully defending themselves.

New Hampshire?  Definitely not a duty to retreat state, as § 627:4(III)(a) provides that a defender is not required to retreat if he is otherwise acting in lawful self-defense.

New Mexico? No, not a duty to retreat, in fact NM law explicitly provides that an otherwise lawful defender may literally “stand his ground.” See NMRA 14-5190.

North Carolina? Oofah, no, under § 14-51.3(a) NC explicitly does not impose a legal duty to retreat before using deadly force in otherwise lawful self-defense.

Vermont.  No, retreat is not required before using otherwise lawful deadly force.  See State v. Hatcher, 706 A.2d 429 (VT Supreme Court 1997).

Virginia? No, Virginia imposes no duty to retreat before one can act in self defense in committing a justifiable homicide.  See Foote v. Commonwealth, 396 S.E.2d 851 (VA Ct. App. 1990).

Thus fully half of the 16 states listed in Mr. Love’s article as being non-Stand-Your-Ground/duty-to-retreat states are nothing of the sort, but to the contrary are well-established Stand-Your-Ground states. (Incidentally, he also commits the reverse error by listing several “duty-to-retreat” states as “Stand-Your-Ground” states, but addressing those errors would take a whole other post.)

By the way, all of the above is readily available in my book, “The Law of Self Defense, 2nd Edition,” which Mr. Love could have downloaded (but obviously didn’t) from Amazon in Kindle format for a mere $9.99.  Heck, if he’d asked me I’d have sent him an autographed print review copy for free.

So, after this rather catastrophic factual failure on Mr. Love’s part you might imagine that the remainder of the article is equally rife with errors and/or irrelevancies.  And you would be correct.

For example, I note that Mr. Love cites the American Bar Association (ugh) as claiming that 33 states qualify as Stand-Your-Ground states, and his piece lists (mistakenly, half the time) 16 states that qualify as non-Stand-Your-Ground states.  Seems to me, there’s a state missing. Maths. Is. Hard.

Mr. Love states that Florida was the first state to adopt Stand-Your-Ground legislation, doing so in 2005. This may be technically true, but it is legally irrelevant. As already noted, California has been a Stand-Your-Ground state since at least 1898, which somewhat precedes 2005.  Of course, in the case of California as in many other states, Stand-Your-Ground was borne of longstanding case law, not statute.  Regardless, it’s good law, either way.

In the next sentence Mr. Love states that “Florida essentially immunizes a person from criminal prosecution or civil action, provided he proves the use of force was necessary to prevent death or serious harm.”  First, we can do away with the redundant word “essentially.’  Second, once again this is an irrelevancy. Self-defense immunity and Stand-Your-Ground are two entirely distinct legal concepts.  Some states have both self-defense immunity and Stand-Your-Ground (e.g, Florida), some have only one or the other (e.g., Oregon), some have neither (e.g., Massachusetts).

Two. Different. Things.

Mr. Love then begins to swerve into hilarity, stating first:  “For years, much of the United States has followed the “castle doctrine,” which basically holds that a person’s home is her castle, thereby giving that person a right to defend the home through the use of deadly force—and without legal consequences.”

First, every state, not merely “much of the United States,” recognizes the “Castle Doctrine.” (Yes, even Massachusetts.)

Second, of course the lawful use of deadly force, whether in defense of ones home or under any other circumstances, is without legal consequences.  That’s what lawful means.

But he continues: “The National Rifle Association and the American Legislative Exchange Council – a group of conservative lawmakers—began a push for legislation that ultimately would upend the castle doctrine.”

Again, this just highlights Mr. Love’s inability to understand what either Stand-Your-Ground or the “Castle Doctrine” actually mean.  The “Castle Doctrine,” most simply put, removes an otherwise existing legal duty to retreat before otherwise lawfully acting in self-defense when you are in your home.  “Stand-Your-Ground” removes this legal duty to retreat before otherwise lawfully acting in self-defense when you are anywhere you have a right to be.  Properly understood, “Stand-Your-Ground” expands the “Castle Doctrine,” it does not upend it.

This gem of Mr. Love’s was particularly enjoyable:

Stand Your Ground laws provide more latitude to invoke self-defense as a grounds for killing someone posing an imminent threat. Typically, such laws permit the use of deadly force outside the home against a perpetrator, regardless of whether the perpetrator is armed.

(emphasis added)

To my knowledge (and I’ve looked) there is no Stand-Your-Ground jurisprudence anywhere in the United States, or anywhere in the world for that matter, that has as an element whether one’s attacker is armed. An attacker that represents an imminent threat of death or grave bodily harm may be defended against, whether in a Stand-Your-Ground state or a duty-to-retreat state, regardless of whether he is armed with some kind of weapon, or is merely armed with his fists and feet.

Mr. Love closes with one of the most favored of “journalist” gimmicks, the loose use of “statistics”:

In states with Stand Your Ground laws, justifiable homicides have increased 85 percent, and the shooting of a black person by a white person is deemed justifiable 17 percent of the time. Meanwhile, the shooting of whites by blacks is found justifiable in only 1 percent of cases.

That first claim again reflects Mr. Love’s rather astonishing ignorance of the subject about which he has chosen to write.  In a piece whose tone is overwhelmingly critical of “Stand-Your-Ground” he cites as support of that anti-“Stand-Your-Ground” position a large increase in justifiable homicides (I set aside for this post the questionable accuracy of his cited statistics, and assume them to be correct for discussion purposes).

Breaking news: A large jump in justifiable homicide is a good thing, and the larger the better.  By definition, a justifiable homicide is one which is committed against a criminal aggressor by an innocent person who is defending themselves (or their spouse or child or parent) against death or grave bodily harm–rape, maiming, etc.  To put it another way, every justifiable homicide is a murder or rape or maiming that did not occur.

More of that, please, thank you.

As for the black versus white statistics of Mr. Loves closing paragraph, it is again irrelevant.

First, he does not provide comparable figures for non-Stand-Your-Ground states, so it’s impossible to know whether the disparity is possibly associated with Stand-Your-Ground or not.

Second, the source that Mr. Love cites for the disparity in black versus white statistics also helpfully provided its own map of the United States indicating which states are “Stand-Your-Ground” and which are duty-to-retreat.  Just for laughs, let’s see how the map from Mr. Love’s chosen source compares with the map he choose for his own piece. Here’s the map from Mr. Love’s piece, sourced from al Jazeera.com:

Stand-Your-Ground al Jazeera

Here’s the map from Mr. Love’s cited source (a 2013 Christian Science Monitor article), in which the colored states are “Stand-Your-Ground”:

Stand-Your-Ground Christian Science Monitor 2013

Ouch.  The Christian Science Monitor lists 26 duty-to-retreat states, as opposed to Mr. Love’s 16 (and similarly gets many of them wrong). Pretty sure a 3-year-old could pick out the variances between those two maps.  (It pays to read the sources you cite, Mr. Love.)

Perhaps Mr. Love is prepared to argue that during the 18 months between the publication of the Christian Science Monitor article and his own piece today an additional 10 duty-to-retreat states have “gone Stand-Your-Ground”?

No worries, he won’t. He can’t. It’s just wouldn’t be true. And it still wouldn’t explain away the half the states he himself wrongly cites as duty-to-retreat states.

OK, that’s enough fun & games with Mr. Love.  Back to billable hours.

–-Andrew, @LawSelfDefense


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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.

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Comments

http://www.nytimes.com/2015/05/04/opinion/stand-your-ground-makes-no-sense.html

I read that and thought, “Andrew should go fisk-city on that BS!”

I think this guy is one of the most prolific of the anti-gun liars in the print media, but I could be confusing him with someone else who lies a lot.

    Was the Love piece originally in the New York Times? I clicked on your link and it brought me to the NYT, but only to a login page, so I couldn’t see the content.

    –Andrew, @LawSelfDefense

      Karadion in reply to Andrew Branca. | May 28, 2015 at 4:18 pm

      The piece is written by a different author which is Robert J. Spitzer on May 4th 2015. From the gist of the piece, the writer is attacking the idea of immunity in self-defense cases. He also cites the same numbers Love does so I’m guessing Love borrows a lot from Spitzer’s article.

      Gremlin1974 in reply to Andrew Branca. | May 28, 2015 at 7:13 pm

      Link is fixed now. I made it through the first 2 paragraphs before I realized that Mr. Spitzer makes Mr. Love look like a Rhodes Scholar.

      Apparenlty, according to Mr. Spitzer even though SYG laws have been around for years, Florida invented a “new breed” of SYG law, one that allows; “a person who has harmed or killed another in a public place can presumptively claim self-defense. The police must accept the claim’s validity. In other words, the individual need only assert the belief that the use of force was necessary to prevent serious harm or death. Coupled with that is special legal protection that makes the person (as the Florida law says) “immune from criminal prosecution and civil action.”

      (LOL, Preemptively is misspelled!!)

      This isn’t a misunderstanding it is an out right lie.

        sequester in reply to Gremlin1974. | May 29, 2015 at 11:52 am

        I am sure Michael Dunn wishes that statement was accurate.

        As a practical matter, in much of Florida, if you claim self-defense and do not flee, police will not make an arrest until they are sure they have enough probable cause to overcome your self-defense claim. That is one reason why it took a few days to arrest Matthew Apperson, who is charged with attacking George Zimmerman.

        I don’t look at this as a negative. Florida is protecting the its citizens rights.

      platypus in reply to Andrew Branca. | May 28, 2015 at 9:14 pm

      Check and make sure you have javascript turned on.

        I understand the words, but have no idea how to do what’s suggested. Using Mac OSX something, Chrome browser version 43 something something.

        –Andrew, @LawSelfDefense

    Not A Member of Any Organized Political in reply to Ragspierre. | May 28, 2015 at 4:48 pm

    Oh the media understands Stand-Your-Ground alright.

    Look how they ‘Stand Their Ground’ defending media misbehavior from …..

The MSM doesn’t want to understand SYG Law. To whatever degree they do understand, they intentionally misrepresent.

I know it’s shocking. The MSM lies.

Stand Your Ground Makes No Sense

Try just searching that phrase. I hope it’ll get you to the piece by ROBERT J. SPITZER.

Andrew, while most likely not billable, any chance you could get your article here published as an opposing editorial in newspapers with broader readership than LI?

    platypus in reply to Marcus. | May 29, 2015 at 12:05 am

    What? This isn’t the number one numero uno site of all sites the end of the search???

    I’m crushed. [sob]

Stand-Your-Ground makes complete sense. If there is an opportunity to effect self-defense, and to neutralize a present threat to oneself and others, then we are the first-responder. Whether we choose to act is a basic human right and responsibility.

Keeping the honest people honest; and preventing the rest from running amuck. Thank you, Mr. Branca.

FrankNatoli | May 28, 2015 at 5:15 pm

Having listened to those unalterably opposed to both SYG and to private lawful possession of firearms, permit me to repeat some of their “reasoning”.
These people believe that SYG’s only substantive effect is to embolden some individuals to look for an “opportunity” to shoot someone. Similarly, these people believe that private lawful possession of firearms’ only substantive effect is to embolden some individuals to look for an “opportunity” to shoot someone. These people are convinced, would pass a polygraph, that had George Zimmerman not be armed, “nothing would have happened”. These people are proof of George Orwell’s dictum “to abjure violence, it is necessary to have never experienced it”. Wait until they get mugged, then they get religion in the blink of an eye.

    platypus in reply to FrankNatoli. | May 29, 2015 at 12:11 am

    Uh, I hate to pop your bubble but the parents of Nick Berg have said that they understand why the thugs of al qaida cut their kid’s head off on camera AND that they hold no ill will towards them.

    So while your comment about getting religion might be true most of the time, I wouldn’t take a bet on it.

      FrankNatoli in reply to platypus. | May 29, 2015 at 7:47 am

      There are always exceptions. And if the parents hold no ill will to the cold blooded murderers of their son, then they are saints. I am no saint.

      Char Char Binks in reply to platypus. | May 29, 2015 at 11:24 am

      Nick Berg got religion — right in the neck.

There is a military website called “This Ain’t Hell, But You Can See It From Here” which has a daily article called Feel Good Story Of the Day. It contains from one to three stories from around the country about armed citizens using firearms to defend themselves and their property. They are mostly from local sources which of course is going to run a local story about three home invaders getting killed in the attempt. National MSM almost never carries these stories because they oppose the concept of self defense. Check it out.

Castle Doctrine and Stand Your Ground laws: examples of courts and legislatures codifying a fundamental natural right.

“…it simply means that the state does not impose a legal duty on an otherwise lawful defender to make use of a safe avenue of retreat before they can use force in defense of themselves or another.”

I might add that in so doing, it prevents prosecutors from charging shooters for failure to retreat in what would otherwise be cases of lawful self-defense. Because of this, every person who claims that SYG is responsible for the death of (your favorite thug’s name here) is actually admitting that said thug was lawfully shot for having presented an unlawful threat to the life and limb of the shooter.

Incidentally, the creator of the illustration probably confused the absence of SYG legislation with the absence of the concept’s acceptance or establishment in any particular State. He or she doesn’t understand that SYG laws didn’t establish the principle, but are merely meant to protect and declare it legislatively, to prevent any misapprehension concerning the authority of the States’ prosecutors. SYG laws have become popular only as a foil to the (fairly recent) legal concept of “duty to retreat,” required by legislation and judicial opinion in more benighted (i.e., Progressive) States. SYG laws are meant to prevent what is a servile and cowardly concept, that allows the state to victimize of the victims of crimes, from becoming established.

Gremlin1974 | May 28, 2015 at 11:58 pm

“Back to billable hours.”

Hummm, me wonders if those hours might include some range time, lol.

I seem to recall an 80 year old man in California who interrupted a burglary, was assaulted and pursued and shot his attackers. As per Andrews point about California, no charges were filed.

    Haha, if I’m recalling the same case, I remember my expectation at the time was that it was highly likely the 80-year-old WOULD be prosecuted–the California “pursuit” provision is only if necessary to ensure one’s safety. In that case he pretty much hunted them down–I vaguely recall he shot them in the back as they fled, though the details are iffy. And one of them was a pregnant woman.

    That said, both of the “victims” were career miscreants on the level of meth-heads (I forget their drug of choice) and the old man had been subject to repeated robberies, as I recall.

    Always important to remember that it’s NOT JUST the legal principles that have to be considered by the Prosecutor–he also has to be believe he can effectively sell his narrative of guilty to a jury. If the prospect for that seem poor, the probability of a prosecution is low, regardless of what a strict reading of the law might suggest.

    As much as prosecutors love to win, they hate to lose even more.

    Anyway, the case I recall is one of the few I have in the “called that one wrong” column. 🙂 And if I have to get one wrong, it couldn’t have happened to two more appropriate people than those miscreants.

    –Andrew, @LawSelfDefense

Char Char Binks | May 29, 2015 at 11:19 am

Truthful characterization of SYG is racist.

Henry Hawkins | May 29, 2015 at 11:41 am

At this point, it seems like expecting the media to actually learn the SYG laws is like expecting a pig to ice skate.

I asked the editor/owner of my small town newspaper what she thought of Stand Your Ground law. She asked, “Is that the one where you can shoot somebody if they get too close to you?” In her defense, she’s not just an idiot on SYG, she’s an idiot on most things.

Phillep Harding | May 29, 2015 at 6:27 pm

(shrug)

“It is difficult to get a man to understand something, when his salary depends upon his not understanding it!” — Upton Sinclair

“difficult” should be “impossible”

Dang.
When I get to the party this late, all the good comments have already been said.

Perhaps we can say the David Gregory used the SYG defense when he waved a 30 round AR-15 magazine on his national TV show in defiance of the DC Police Dept. (sarc off now)

To AB: Thanks for the Amazon shopping tip! Having loaned your book to another neophyte handgun owner for examination and not getting is back yet, I have now filled that void by having it sent to my kindle, that goes everywhere with me. Off course I reached out to Amazon thru the LI link.

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