So this happened: A group of five self-described scientists representing prestigious institutions of higher learning, including the Harvard School of Public Health, Washington University School of Medicine, and the Saint Louis University College for Public Health and Social Justice, decided to look for racism in Florida’s “Stand-Your-Ground” laws (hereafter, “SYG”).
It will come to the surprise of no one , of course, that the team behind “Race, law, and health: Examination of ‘Stand Your Ground’ and defendant convictions in Florida” found what they were looking for. From their abstract (full abstract at bottom of post):
Our results depict a disturbing message: SYG legislation in Florida has a quantifiable racial bias that reveals a leniency in convictions if the victim is non-White, which provides evidence towards unequal treatment under the law.
Surprise, surprise. Well, maybe not so much of a surprise when you read how they describe their methodology for the paper — critical race theory (emphasis added):
We frame our study using Public Health Critical Race Theory (PHCRT) Methodology. PHCRT is a conceptual framework that builds upon critical race theory and public health theories and methods to articulate how best to understand and address social and health issues to achieve social justice for marginalized groups.
Like a child who puts on red-tinted glasses and is shocked to discover the whole world is imbued with that color, these “scientists” donned their racist-tinted lab goggles and found the whole world imbued with racism.
Inconceivable.
That aside, and the legal doctrine of SYG being a subject of some personal interest, I thought I’d take a closer look at how they actually executed their study. Of course, the paper was behind a firewall, but $35.95 later I had 8 pages of “science” in my hands.
It didn’t take long to smell blood in the water, as I quickly noted the source of the “data” they used for the paper: The Tampa Bay Times “database” of “stand-your-ground” cases in Florida.
Before we dive into the “data,” however, it’s worth taking a moment to ensure that we actually know what we’re talking about when we use the phrase SYG. Sadly, this is a step that Drs. Ackermann, Goodman, Gilbert, Arroyo-Johnson, and Pagano apparently neglected to bother with.
In order to understand SYG, and the limits of its function in the law, one must first understand the law of self-defense itself. If you want the full version of that particular story you might take a gander at “The Law of Self Defense, 2nd Edition.” For our purposes here we’re just going to take a 30,000 foot view.
Self-defense is, of course, a physical act in which an innocent defender uses force to avoid an imminent threat of harm by an attacker. Society recognizes that such a use of defensive force against violent aggression is a social good, and relieves the lawful defender from any criminal liability that might otherwise attach to their use of force against another.
A defender seeks that relief from criminal liability by raising the legal defense of self-defense. Once raised, the criminal justice system then evaluates the facts surrounding your use of force to determine whether you do, in fact, qualify as having acted in self-defense. If so, you have zero criminal liability.
To qualify as self-defense your use of force must satisfy up to five prongs or elements of self-defense law. These are:
Innocence: You must not have been the aggressor.Imminence: The threat you perceive must be imminent.Proportionality: You must use no more force than necessary.Avoidance: You must retreat if safely possible before using defensive force.Reasonableness: Your conduct in self-defense must be reasonable.
In fact, however, only a minority of states apply all five of these elements. Just 16 states impose a legal duty to retreat before using force in self-defense. The large majority of 34 states impose no such legal duty, and thus are effectively SYG states.
Even in a SYG jurisdiction, of course, one must still meet the other four elements of self-defense: innocence, imminence, proportionality, and reasonableness. If you violate any one of those, your claim of self-defense will fail, and you will be fully criminally liable for your use of force against another.
In effect, then, the only thing that SYG does is relieve that otherwise existing legal duty to retreat before using force in self-defense.
The fact that SYG is merely a sub-component of a larger legal claim of self-defense has important implications for any analysis of SYG .
For one thing, it means that in any case where a defender claims self-defense and is adjudicated guilty, SYG was irrelevant.
Think about it: All SYG does is excuse the element of Avoidance. If a person claims self-defense in a SYG jurisdiction and ends up guilty, it necessarily means his claim of self-defense failed (or he would have been acquitted). If his claim of self-defense failed, it must mean one (or more) of the other four elements of his self-defense claim was disproven (avoidance being off the table in a SYG state). In that case his claim of self-defense would also have failed even in a duty-to-retreat state, because that duty-to-retreat state also requires those other elements of self-defense.
Thus, a conviction means the use of force was legally adjudicated to not be self-defense, and SYG is irrelevant to the case.
It is also important to note that even in the minority of states where a legal duty to retreat is imposed there are always at least two exceptions to that duty.
First, there is the “Castle Doctrine” exception: One is relieved of the legal duty to retreat before using defensive force if one is within one’s home (or “castle”).
Second, the legal duty to retreat applies only where a safe avenue of retreat is available to the defender. The defender is never required to increase his jeopardy in attempting to retreat, and as well if there simply exists no means of retreat then it is simply not possible to impose the duty as a practical matter.
These two limitations on the legal duty to retreat have important consequences for any analysis of SYG.
Effectively, it means that where a defender is in one’s home or where the defender has no safe avenue of retreat, then SYG is irrelevant. Whether the defender were in a stand-your-ground jurisdiction or a duty-to-retreat jurisdiction, under either of those circumstances there would be no legal duty to retreat and the defender may “stand his ground.”
Knowing these legal realities, we can apply them to various instances of use of force and quickly begin to exclude specific cases as being SYG cases, for the reasons just explained.
A case can only be properly be said to be a SYG case where the presence of SYG results in a different outcome. If the outcome would be the same regardless of whether one was in a “Stand-Your-Ground” or a “Duty-to-Retreat” jurisdiction, then clearly SYG is irrelevant to the outcome.
Any claim of self-defense that results in a conviction is not a SYG case as a matter of law, because the conviction means the claim would have failed regardless of whether one is in a “Stand-Your-Ground” jurisdiction or not.
Any claim of self-defense where there is no identifiable safe avenue of retreat is not a SYG case as a matter of law, because the absence of a safe avenue of retreat would relieve the defender of a duty to retreat even in the absence of SYG
Any claim of self-defense where the defender is in his home is not a SYG case as a matter of law, because the “Castle Doctrine” (found in all US jurisdictions) would relieve the defender of a duty to retreat even in the absence of SYG
With that knowledge firmly lodged between our collective ears, let’s take a look a the data set used by Ackermann, et al., (hereafter, “Ackermann”) in “Race, law and health.”
As previously mentioned, they obtained their data from a “database” of purported Florida SYG cases maintained by the Tampa Bay Times.
They begin with 237 of these cases, and then begin to further optimize the data set. Some of these efforts at optimization make reasonable sense. Others, sadly, reflect an utter ignorance of the subject of their study.
First, the raw dataset was last updated in 2013, and had 24 cases that were at that time still pending. Ackermann uses a variety of ways to try to determine the outcome of these, and claims to have done so successfully for all but six of them. These remaining six cases are excluded from the analysis.
Second, Ackermann excludes 10 cases in which there is missing data for the race of the victim. Race of the victim is a key variable when one is on a “racist!” hunt, so this also makes sense.
Third, Ackermann excludes two cases for the reason that they had “multiple outcomes.” I don’t see where he explains this, but in any case it’s only 2 cases and I have bigger fish to fry.
Fourth, and most laughably, Ackerman excludes 15 cases because he was unable to identify the “weapon of the victim.” This is laughable because whether a self-defense case involved a weapon is utterly irrelevant to determining whether it was a SYG. As discussed, Stand-Your-Ground applies solely to the element of avoidance in a claim of self-defense. But whatever—“science.”
In any case, Ackermann concludes with a data set of 204 cases drawn from the original set of 237 in the Tampa Bay Times “database.”
Ackermann then applies to these 204 cases a bivariate statistical analysis using SAS 9.4 statistical software, using a statistical significance threshold of p < 0.05.
Sounds fancy, right? That’s some real science going on right there, ayup.
Naturally, Ackermann successfully discovered “racism!” in his dataset of 204 cases.
Does his methodology pass even the most superficial of smell tests? I suggest, ladies and gentlemen, that it does not.
As noted, Ackermann’s analysis is based upon his selection of 204 purported SYG cases drawn from the 237 in the Tampa Bay Times SYG “database.”
A quick glance at those 237 cases, however, strongly suggested that it did not contain 204 actual SYG cases, or anything close to that number.
A closer examination confirmed that initial impression, and made clear that Ackermann’s data set was utterly worthless for its claimed purpose, and that his findings resulting from his analysis of that worthless data could have a value no greater.
How do we arrive at this conclusion? By simply applying the actual characteristics of a SYG case to those contained in the Tampa Bay Times database.
To put it another way, we applied the exclusion criteria already discussed above: any case that resulted in a conviction, that lacked an identifiable safe avenue of retreat, or that took place on the defender’s property simply does not qualify as a SYG case as a matter of law, because SYG is irrelevant in those circumstances.
It naturally follows that only those cases that are not so excluded could possibly be SYG cases suitable for any study purporting to examine “Stand-Your-Ground.”
And nothing like 204 cases remain after the non-SYG cases are excluded.
Ackermann himself chose to lump together cases in which the defendant was adjudicated guilty or pleaded to a criminal offense, and we’ll follow his methodology in that regard.
Of the 237 cases in the Tampa Bay Times “database,” fully 38 resulted in guilty verdicts and another 32 resulted in pleas of guilty. Collectively then, no fewer than 70 of the 237 cases are excluded as SYG cases on this basis as a matter of law.
That would leave only 167 potential SYG cases in the data.
Yet Ackermann used 204 of these cases for his analysis. Oops.
The Tampa Bay Times “database” also helpfully characterized each case on the issue of whether the defender was on his own property. As discussed above, a defender in his “castle” has no legal duty to retreat before acting in self-defense regardless of whether he is in a SYG or a duty-to-retreat jurisdiction. SYG is simply irrelevant in such cases.
Taking a look at the 237 cases in the Tampa Bay Times “database,” fully 71 are flagged as involving a defender on his or her own property.
This would leave only 166 potential SYG cases in the data.
Yet Ackermann used 204 of these cases for his analysis. Oops.
The Tampa Bay Times “database” also helpfully characterized each case on the issue of the availability of retreat, assigning one of three conditions. They indicated whether the defender could have safely retreat with a value of “Yes,” “No,” or “Unclear/Disputed.”
Because a duty-to-retreat can exist only where there is a safe avenue of retreat available to the defender, any value other than “Yes” means that the case cannot be categorized as a SYG case. If there is no safe avenue of retreat there is no duty to retreat whether one is in a SYG state or not: SYG is irrelevant.
Taking a look at the 237 cases in the Tampa Bay Times “database,” fully 36 were coded to indicate explicitly that the defender did not have the option to retreat. These are not SYG cases as a matter of law.
An additional 64 cases were coded as “uncertain/disputed.” If it is not known whether a case involved a potentially safe avenue of retreat it can simply not be known whether it would fail as a SYG case on that basis, and therefore it is not suitable for inclusion in an analysis of SYG.
This means that fully 100 cases among the 237 are necessarily excluded on the basis that there was no safe avenue of retreat, and that they were therefore not SYG cases.
That would leave only 137 potential SYG cases in the data.
Yet Ackermann used 204 of these cases for his analysis. Oops.
Naturally, many of the cases failed as SYG cases on more than one of the exclusionary criteria applied here. When we account for this to identify the number of the 237 cases that are excluded as SYG cases on at least one of these criteria, we arrive at the 181.
That’s right: 181 of the 237 purported SYG cases in the Tampa Bay Times SYG database are simply not SYG cases as a matter of law.
That leaves a mere 56 of the 237 cases that could potentially be SYG cases.
Fifty-six.
Yet Ackermann used 204 of these cases for his SYG analysis.
That means that fully 76% of the data to which Ackermann applied his bivariate statistical analysis using SAS 9.4 statistical software and a statistical significance threshold of p < 0.05 are by definition utterly inappropriate for the intended purpose of studying to societal implications of SYG.
As my statistics professor at Harvard used to tell us: “Garbage in. Garbage out.”
Oops.
——-
Here is the full “abstract” of the study — the full study does not yet appear in the public domain, though I have read the whole thing in preparation for this post:
Previous analyses of Stand Your Ground (SYG) cases have been primarily descriptive. We examine the relationship between race of the victim and conviction of the defendant in SYG cases in Florida from 2005 to 2013. Using a regression analytic approach, we allow for simultaneous examination of multiple factors to better understand existing interrelationships. Data was obtained from the Tampa Bay Times SYG database (237 cases) which was supplemented with available online court documents and/or news reports. After excluding cases which were, still pending as of January 2015; had multiple outcomes (because of multiple suspects); and missing information on race of victim and weapon of victim, our final analytic sample has 204 cases. We chose whether the case resulted in a conviction as the outcome. We develop logistic regression models using significant bivariate predictors as candidates. These include race of the victim (White, non-White), whether the defendant could have retreated from the situation, whether the defendant pursued the victim, if the victim was unarmed, and who was the initiator of the confrontation. We find race of the victim to be a significant predictor of case outcome in this data set. After controlling for other variables, the defendant is two times (OR = 2.1, 95% CI [1.07, 4.10]) more likely to be convicted in a case that involves White victims compared to those involving non-White victims. Our results depict a disturbing message: SYG legislation in Florida has a quantifiable racial bias that reveals a leniency in convictions if the victim is non-White, which provides evidence towards unequal treatment under the law. Rather than attempting to hide the outcomes of these laws, as was done in Florida, other states with SYG laws should carry out similar analyses to see if their manifestations are the same as those in Florida, and all should remediate any injustices found.
–-Andrew, @LawSelfDefense
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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