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.
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:
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”:
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.
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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.DONATE
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