An acquittal in a murder case out of Louisiana provides a real-time illustration of the difference between the application of what I refer to as “hard” Stand-Your-Ground provisions versus “soft” Stand-Your-Ground provisions. (Details here are as reported by The Advocate and other news sources.)

The facts of the case involve a bare-handed attack by a large aggressor against a smaller defender, one Jacob Westbrook, who was armed with a knife. Westbrook, who testified at trial that he had never been in a fight before, stabbed the aggressor once in the chest after, he says, the larger and stronger aggressor punched him in the head. It is noteworthy that the aggressor was a guest, perhaps little wanted, in Westbrook’s home at the time of the conflict.

Tactical Lesson: Knife Deadly In Even Untrained Hands

One tactical lesson emerges from the trial re: how dangerous edged weapons are even absent meaningful training or experience on the part of the person wielding the weapon.

Testimony at trial would be that Westbrook had little or no fighting experience generally, and no known expertise in the use of a knife for social purposes.

Despite this lack of training or expertise, that single knife thrust was sufficient to penetrate the upper chest, lung, and heart. The victim of the stab wound died shortly afterward. Lesson: Knives are dangerous, folks, even in the hands of the untrained.

Key Issue at Trial: Element of Avoidance

The witness testimony, including defendant Westbrook, was inconsistent on many issues relevant to self-defense. The prosecution sought to exploit each of these inconsistencies to attack Westbrook’s claim of self-defense.

One of the key issues centered on the element of avoidance. Avoidance, generally speaking, has to do with whether a defender has a legal duty to retreat before using force (usually limited to deadly force) in self-defense if a completely safe avenue of retreat is available. There are about 13 states that impose such a legal duty to retreat, and these can be referred to as the “duty to retreat” states.

The large majority of states, more than three-fourths, are in effect “Stand-Your-Ground” (SYG) states in that they do not impose a legal duty to retreat before using force in self-defense, even if a safe avenue of retreat is possible. In all “SYG” states this freedom of a duty to retreat is contingent on the person claiming self-defense not being the aggressor in the fight. In many “SYG” states there are additional conditions such as the purported defender not being engaged in unlawful activity and being in a place they have a right to be.

“Hard” versus “Soft” Stand-Your-Ground

There is, however, another less explicitly recognized variance in “SYG” provisions. One the one hand, a state’s “SYG” law might completely take the issue of retreat off the table as a target of attack by prosecutors on a claim of self-defense. On the other, it might alternatively allow prosecutors to target a failure to retreat on the basis of such a failure being unreasonable (rather than on the basis of the failure being the violation of a legal duty to retreat).

These two different approaches can be termed “hard” SYG where the issue of retreat has been taken completely off the table, and “soft” SYG where the issue of retreat can still be argued in the context of the element of reasonableness.

Only a minority of “SYG” states qualify as “hard” SYG jurisdiction in which the issue of retreat is taken completely off the table (assuming that the conditions of SYG have otherwise been met). In these states, you can generally find this “hard” prohibition on considering the issue of retreat or avoidance as an element of self-defense written explicitly into the state’s self-defense statutory language.

A good example of such a statutory prohibition on considering retreat can be found in Texas law. One provision of Texas Penal Code §9.31. “Self-Defense” provides in relevant part that:

(f) [I]n determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

That “finder of fact” is normally the jury, but may alternatively be a judge in a bench trial. In any case, whether jury or judge, they are statutorily prohibited from considering whether a defendant claiming self-defense could have safely retreated in their evaluation of whether that defender’s conduct was reasonable.

The large majority of “SYG” states, however, do not have such an explicit prohibition on considering the reasonableness of a failure to retreat. Indeed, the case law from this majority of SYG states rather consistently holds that even where they do not impose a legal duty to retreat when safely possible they will still require a defender to have acted reasonably, and that a failure to retreat can be considered by the jury in deciding whether the defender’s conduct was reasonable. If that use-of-force was unreasonable, it fails the element of reasonableness for a valid justification of self-defense, and the use-of-force is unlawful.

Prosecutors in “soft” SYG states can thus engage in a kind of “back door” attack on a defendant who has failed to take advantage of a safe avenue of retreat. They can’t argue to the jury that the defendant had a legal duty to retreat, because there is no such legal duty in any SYG state (if the required conditions for SYG have been met). They can, however, argue that the failure to retreat was unreasonable, and therefore the claimed defensive use of force does not qualify as self-defense and was instead unlawful.

As one example of a “soft” SYG jurisdiction, we can look to Idaho. There the state Supreme Court recently addressed the issue of whether a claim of self-defense could be attacked on the basis that a failure to retreat was unreasonable, even though Idaho is a “SYG” jurisdiction and imposes no legal duty to retreat. That court concluded that such an attack on a claim of self-defense was permissible:

It is clear from this case law that although a party in Idaho may not have a duty to retreat prior to engaging in force in self-defense, the defendant’s actions in this regard are not completely immune to being assessed against the reasonableness standard. In other words, a party is not required to retreat, but he is required to act reasonably. Indeed, the right of self-defense in Idaho has long been grounded in the concept of the “reasonable” person. … There is nothing in the case law concerning retreat that departs from this standard. To completely shield a defendant’s actions regarding anything having to do with the possibility of retreat abandons this preeminent requirement of reasonableness.”

State v. Iverson, 155 Idaho 766 (ID Supreme Court 2014)

Louisiana: A “Hard” Stand-Your-Ground State

Louisiana, where this Case of the Week took place, is among the minority of “SYG” states that fall into the “hard” SYG category. As with Texas, this explicit prohibition on attacking a failure to retreat on the basis of reasonableness can be found in the relevant statutory language.

Louisiana Revised Statute 14:20 “Justifiable Homicide” provides in relevant part:

D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Just Because It’s Against the Law Doesn’t Mean Prosecution Won’t Try

You may be surprised (or perhaps not) to learn that this explicit statutory prohibition on arguing the reasonableness of a failure to retreat did not prevent the prosecution from trying to do exactly what the statute says they aren’t allowed to do: attack defendant Westbrook’s claim of self-defense on the basis that his failure to avoid the fight was unreasonable.

In fact, the prosecution sought to be able to be able to bake this legal argument into the jury instructions as early as during jury selection for the trial. When the trial judge rejected the prosecutions attempt, the prosecution sought to have the judge’s rejection overturned on appeal. Fortunately for the defense, the state appellate court upheld the trial judge’s rejection. As reported by The Advocate:

In a ruling during the jury selection phase of Westbrook’s trial, 23rd Judicial District Judge Jason Verdigets rejected prosecutors’ attempt to have the post-trial instructions say jurors could consider the possibility of Westbrook’s retreat to see if his use of deadly force was necessary. In an emergency appeal from prosecutors, a state appellate court upheld that ruling.

Race of Defendant Who Was Saved by SYG? Black

Incidentally, it’s worth noting that the racial grievance industrial complex, broadly defined, has been engaged in a massive propaganda campaign to portray “SYG” laws as inherently racist, at least since the 2013 acquittal of George Zimmerman (in a case which, ironically enough, had nothing whatever to do with “Stand-Your-Ground”).

Given that propaganda campaign by the media, as well as and social justice warrior and racial grievance activists against “SYG” it’s perhaps worth noting that the defendant Westbrook whose claim of self-defense was likely saved by Louisiana’s “hard” SYG law is … wait for it … black. (Westbrook himself is quite light-skinned in available photos, but The Advocate article linked here provides photos of his mother and other immediate relatives would appear to leave little question about his race.)

How do you know the media is lying about “SYG”? Easy: they’re using the phrase “SYG.”

Winning Beats Losing, but May Still Be Costly

In closing, I would note that in this Case of the Week the defendant Westbrook was acquitted by the jury of murder (notably on a 10-2 vote, as Louisiana the sole jurisdiction that allows for super-majority, rather than unanimous, jury verdicts in murder cases). Had he been convicted, under Louisiana law Westbrook would likely have been looking at life in prison, at hard labor. His acquittal saved him from that fate.

Nevertheless, Westbrook spent nearly three years in jail awaiting trial, during which time he was reportedly raped at least twice by other inmates. Whether the jail authorities could have prevented these rapes is currently the subject of a Federal lawsuit, but either the could not have or they could have and declined to do so. Neither option holds much promise for anybody held in jail awaiting trial.

There are circumstances that justify the use of defensive force even if that means dying in the effort, and so there must be circumstances that justify even the risk of being raped in prison. It ought, however, to be a pretty darned short list of circumstances.

As always, I urge you to make sure the stakes are worth the risks.

Remember: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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