Are “Stand Your Ground” Laws an Effective Way to Stop Violent Crime?

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Are “Stand Your Ground” Laws an Effective Way to Stop Violent Crime?

요약:

YES: Jorge Amselle, from "Why We Need Stand Your Ground Laws", The Daily Caller (2014)

NO: James Beckman, from "The Problem with Stand Your Ground Laws: A Proven Detriment to Public Safety," Original Work (2016)

Writer and firearms instructor Jorge Amselle asserts that “stand your ground” laws are needed for self-defense in the United States. Such laws provide those who use weapons for self-defense and defense of personal property with an effective legal defense in these cases. Professor and author James Beckman, in contrast, argues that “stand your ground” laws are an anachronism in modern society. Moreover, Beckman believes that these laws encourage situations wherein individuals will choose to escalate potentially violent encounters rather than diffusing them.

Selected, Edited, and with Issue Framing Material by:

Thomas J. Hickey, State University of New York at Cobleskill

ISSUE

Are “Stand Your Ground” Laws an Effective Way to Stop Violent Crime?

YES: Jorge Amselle, from “Why We Need ‘Stand Your Ground’ Laws,” The Daily Caller (2014)

NO: James Beckman, from “The Problem with Stand Your Ground Laws: A Proven Detriment to Public Safety,” Original Work (2016)

Learning Outcomes

After reading this issue, you will be able to:

• Discuss the role of the National Rifle Association (NRA) in supporting the passage of “stand your ground” laws in the United States.

• Discuss the early origins of “self-defense” laws and whether they are consistent with the adoption of “stand your ground” statutes.

• Discuss the “duty to retreat” doctrine.

• Present several arguments favoring the development of “stand your ground” laws in the United States.

• How do “stand your ground” laws increase the rate of justifiable homicide findings in criminal cases?

• Present several arguments opposing the development of “stand your ground” laws in the United States.

• Discuss how “stand your ground” laws increase the rate of justifiable homicide findings in criminal cases.

• Discuss whether “stand your ground” laws do more harm than good to public safety.

ISSUE SUMMARY

YES: Writer and firearms instructor Jorge Amselle asserts that “stand your ground” laws are needed for self-defense in the United States. Such laws provide those who use weapons for self-defense and defense of personal property with an effective legal defense in these cases.

NO: Professor and author James Beckman, in contrast, argues that “stand your ground” laws are an anachronism in modern society. Moreover, Beckman believes that these laws encourage situations wherein individuals will choose to escalate potentially violent encounters rather than diffusing them.

The self-defense doctrine has a long history in the Anglo-American legal tradition. Our courts have held consistently that a person has a right to use self-defense to prevent an impending attack on him/herself, in defense of personal property, or in defense of others. Black’s Law Dictionary (1979), a classic legal treatise, defines self-defense as follows:

An excuse for the use of force in resisting an attack on the person, and especially for killing an

assailant. The right of a man to repel force by force even to the taking of life in defense of his person, property, or habitation, or of a member of his family, against anyone who manifests, intends, attempts or endeavors by violence of surprise, to commit a forcible felony.

To establish the traditional defense, a defendant must show that he/she did not provoke the incident and that there must be imminent peril. It also required the person using self-defense to demonstrate that there was no convenient or reasonable means of escape. Moreover, if an injury was done by a defendant in self-defense, he/ she could not be held liable in a criminal case or a resulting civil action. (Id. 1220-1221). The case law also makes clear that it is never reasonable to use deadly force in a disproportionate manner—one is not justified to use deadly force to repel a non-deadly attack.

There are two forms of legal self-defense claims. Imperfect self-defense occurs when someone kills another person and he/she honestly believed that deadly force was needed to thwart the attack; however, it later turns out that the belief that deadly force was necessary was not a reasonable one. For example, suppose that you had recently received online death threats due to your political activism and someone walks toward you carrying a blue plastic sledge hammer that you honestly believe is a real one. Suppose further that he/she swings the hammer in your direction and you respond by shooting the individual with a .9 mm handgun that was concealed in your jacket and the assailant dies from the gunshot. If at trial you bring a self-defense claim, the question that will arise is whether your honest belief that the hammer swinging individual’s conduct actually threatened your life was a reasonable one. If the court concludes that it was, the claim of self-defense would be a complete defense. If not, however, it could still mitigate your degree of criminal responsibility. In fact, in these circumstances it may well result in the reduction of charges from murder to a lesser degree of homicide, such as manslaughter.

A claim of perfect self-defense is established, in contrast, when a defendant’s belief that his/her life is threatened by an attacker is an objectively reasonable one. For example, if someone confronts you with a real pistol and demands your wallet and threatens your life, responding with deadly force may well be determined to be an objectively reasonable course of action. In such circumstances, a self-defense claim may establish a complete defense and no criminal (or even civil) charges would arise.

An additional example may help to clarify the nature of self-defense claims in the real world. In a now-famous case that employed a self-defense claim to murder charges in the State of California, Erik and Lyle Menendez shot and killed their parents, Jose and Kitty Menendez, in the family’s Beverly Hills home on August 20, 1989. The prosecution’s theory supporting murder charges was that the killings were motivated by greed and the brothers’ desire to acquire by early inheritance their parents’ considerable wealth. However, after abandoning a story cooked up for police investigators that the Mafia had killed their parents, Erik and Lyle claimed at trial that the killings were the result of years

of physical, sexual, and psychological abuse, and thus not murder, but only manslaughter. Their first trial resulted in a hung jury. The jury was unable to agree on a degree of homicide, landing all over the board with votes for first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. (Menendez v. Ca Terhune, 422 F.2d 1012).

At their second murder trial (double jeopardy does not apply if a first trial results in a hung jury mistrial), where they raised the same self-defense claim, the Menendez brothers were convicted of first degree premeditated murder and were sentenced to life imprisonment without the possibility of parole. Their convictions and sentences were later affirmed by the California Supreme Court and their petition for post-conviction relief was denied by the U.S. Court of Appeals (9th Cir.).

The Menendez case illustrates the difficulty of establishing a self-defense claim in a criminal trial. It also illustrates the highly subjective nature of these cases: The jury at the first trial could not agree on a verdict: Apparently while some jurors did not believe the brothers’ self-defense claims, and voted to convict them of first degree murder, others accepted their claims and believed that voluntary or involuntary manslaughter were the more appropriate verdicts.

Self-defense cases, then, often present challenging factual issues. As noted earlier, in order to establish a self-defense case in some states a defendant must show that there was no convenient or reasonable means to avoid a confrontation, a so-called “duty to retreat.” Other states, such as Florida, however, have eliminated the “duty to retreat.” Florida’s “Justifiable Use of Force” statute (Title XLVI, Chapter 776.013) provides:

A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if: . . . (b) The person who uses or threatens to use defensive force knew or had reason to believe . . . that an unlawful and forcible act was occurring or had occurred.

Thus, Florida law does not require a duty to retreat in order to establish self-defense. A highly controversial Florida case, which presented a self-defense claim, involved the 2012 shooting death of Trayvon Martin, a 17-year-old African American, by George Zimmerman, a self-declared neighborhood watch captain. At trial, the evidence showed that Martin was visiting his father, Tracy Martin, in the Twin Lakes gated community, in Sanford, Florida. On February 26, Zimmerman called 911 to report a “suspicious person” in the neighborhood. The dispatcher instructed him not to get out of his SUV, or otherwise engage the person. Zimmerman disregarded this directive and moments later witnessed heard gunfire. When police arrived, Zimmerman acknowledged shooting Martin, who was found bleeding from the nose and back of head and later died from his injuries. The next day Zimmerman went to his family doctor, who testified that he had two black eyes, a fractured nose and two cuts on his head. Zimmerman was later charged in Florida court with second degree murder. A Florida jury accepted Zimmerman’s self-defense claim and found him not guilty. In 2015, the U.S. Department of Justice declined to file civil rights charges against Zimmerman. Moreover, in a recent and somewhat macabre postscript to this case, George Zimmerman has offered publicly to sell online the gun he used to kill Tray-von Martin. The opening bid was set at $100,000. (Reuters, World, May 16, 2016).

Zimmerman’s defense team decided tactically to use a traditional self-defense strategy in this case and forego a “stand your ground” (SYG) law pretrial hearing. Had he

successfully established the “SYG” defense, he could have not been faced criminal or civil proceedings in this case. Is such a law a good social policy, however? The authors of the articles in this Chapter would have very different answers to this question.

Jorge Amselle contends that “SYG” law opponents are trying to make the case that these laws have turned lawful gun owners into a “shoot first ask questions later” people and that SYG has made this both acceptable and legal. He contends, in response, that SYG laws do not change the criteria for claiming legitimate self-defense or the use of deadly force. Moreover, the use of force must normally be proportionate to the existing threat.

James Beckman, in contrast, argues that modern “SYG” laws are a threat to public safety. They encourage individuals to escalate threating situations and have led to an increase in homicides in states where they have been adopted.

Which of these positions do you support? While reading the selections in this issue, think carefully about the purposes and objectives of self-defense claims and the goals of the U.S. justice system? Do SYG laws facilitate these goals? 

YES

Jorge Amselle

Why We Need “Stand Your Ground” Laws

It is no surprise that the lefty media hates guns but ever since the Travon Martin shooting in Florida they have become especially apoplectic about Stand Your Ground (SYG) laws. In their continued criticism they have brought up two other Florida shooting incidents and one in Arizona. They conveniently ignore the fact that in all of these incidents, including the Travon Martin case SYG was either not a factor or most likely doesn’t apply. . . .

Basically these laws make it clear that in a self-defense situation you do not have a duty to retreat before using lethal force. They are the law in 22 states. In the rest of the country, at least outside your home, you may have a duty to retreat.

The most recent anti-SYG rant comes from Dahlia Lithwick over at Slate.com. She is smart and an attorney (who should know better) and occasionally makes good points just not on guns. Using the aforementioned examples she tried to make the case that SYG has turned gun owners into a “shoot first ask questions later” type and that the law has actually made this both acceptable and legal.

Let’s start with the obvious. SYG laws do not change the criteria for claiming legitimate self-defense or the use of lethal force. It is not enough to say you thought you saw a gun or that you were in fear for your life. The specifics have to be such that a reasonable person would feel the same way. Keep in mind that this reasonable person will be sitting in a comfortable chair, far away from danger, and dispassionately considering your argument. Absent clear physical evidence or witnesses it isn’t as easy to prove self-defense as the media makes it out to be.

The use of force also has to be proportional in most cases. If someone is simply threatening you with their words and gestures, you can’t shoot them no matter how scared you are. If you get in a fight with someone and are a participant in the altercation your ability to later claim self-defense if you use lethal force will be severely compromised. SYG changes none of this.

Lithwick also makes it seem that SYG is a new phenomenon, something states just started instituting in the last decade. It is true that legislatures started passing these laws in a very specific manner more recently but case law questioning the Duty to retreat (which is the basis for SYG) goes back well over 100 years. The best known example of this is Brown v. United States (1921) where the U.S. Supreme Court held that there was no duty to retreat in a legitimate self-defense case.

Here is an excerpt about this case from Wikipedia “if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not exceed the bounds of lawful self-defense.” Wow, they were using the term “stand your ground” in 1921. Further, Justice Oliver Wendell Holmes wrote (also from Wikipedia), “Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him.” And there is that SOB the reasonable man again.

In simple terms we need SYG laws because too often prosecutors in self-defense cases ended up doing exactly what Justice Holmes warns against, using their own detached reflection outside the presence of that uplifted knife to judge the legitimacy of the actions of another. Grand juries go along and jurors are told how the state law says you have a duty to retreat if you can safely do so. Twelve people sitting in perfect safety get to decide if it was safe for you to retreat before they have to decide if it was OK for you to use lethal force to defend yourself.

Duty-to-retreat laws place an extra and unreasonable burden on those claiming legitimate self-defense. That is why so many states have enacted specific legislation to eliminate duty to retreat. Frankly, as an advocate of self-defense and a firearms instructor, I think it is a good

Amselle, Jorge, “Why We Need ‘Stand Your Ground,’ Laws” The Daily Caller, March 11, 2014. Copyright ©2014 The Daily Caller. Used with permission. idea to retreat if you can but I don’t feel qualified to sit in judgment of another person’s decisions when in mortal danger. Liberals seem to have no qualms about judging others, it seems.

JORGE AMSELLE is a certified firearms instructor and writer covering all aspects of the gun industry from military and law enforcement firearms and training to the shooting sports.

James Beckman

NO

The Problem with Stand Your Ground Laws: A Proven Detriment to Public Safety

Introduction

The passage of the Florida “Stand Your Ground” (SYG) legislation in 2005 was truly like the proverbial gun shot heard round the world. Immediately upon passage of the law, visitors from around the globe were advised to be careful when visiting Florida because of this new law, and leaflets were even handed out at the Florida airports advising incoming tourists of this potentially life-threatening change to Florida’s laws. The passage of this state law in 2005 was the result of very heavy lobbying by the influential National Rifle Association (NRA). Since that time, thirty-three additional states have revised their deadly use of self-defense laws to emulate Florida’s 2005 legislation. As such, the NRA’s successful campaign in this area can rightly be described as one of its more successful efforts in recent history at implementing laws relating to gun ownership (or more accurately, the protection of gun owners and right to carry laws) throughout the United States. Yet, the debate over the use of deadly force in self-defense has existed for centuries, and certainly long before Florida’s 2005 alternations to the classical rules of the use of deadly force in self-defense in cases when one was in imminent fear of great bodily harm or death, or the protection of another in such legitimate imminent fear.

Thus, the often misunderstood and misquoted underlying history of SYG laws goes back well before Florida in 2005 and is relevant to understanding why such laws were initially passed, the current climate and status of SYG laws, and whether such laws are ultimately good or bad for public safety in the United States. In ultimately advocating that the SYG laws as currently formulated do not constitute wise public policy, I would like to divide and discuss my comments into three interrelated areas, namely: (1) the historical and classic rules pertaining to the use of deadly force and the proper rules of the so-called “duty to retreat” doctrine that existed in many states before 2005; (2) Florida’s revisions to classic deadly force

self-defense rules through its promulgation of its famous/ infamous SYG law of 2005—both as to what the revisions entail, why changes to the law were purportedly needed, and the alleged chief arguments in favor of these laws; and

(3) the chief arguments today in opposition of SYG laws and this author’s conclusions as to the efficacy and value of SYG laws (as currently formulated) in ultimately serving as a detriment to public safety in instances involve self-defense or in active shooter scenarios. To be clear, this author is not proposing that one may not use deadly force to repel attacks where one is imminent fear of grave harm or death. Rather, it will be argued that the recent SYG laws are actually superfluous to the state of the law for victims before 2005 (even in “duty to retreat” states) and that the laws since 2005 have been shown to do more harm than good to public safety.

Classic Rules Pertaining to Use of Deadly Force and the Duty to Retreat Rule

The concept of lawful self-defense permeates every aspect of human existence, from one-on-one interactions between two individuals on a street corner to interactions between nation-states under international law. In fact, Article 51 of the United Nations Charter speaks of a nation’s “inherent right” of self-defense against the armed attacks of other countries, or even threats of such armed attacks. In English Common Law, there have been rules on the individual use of deadly force in self-defense for centuries, and certainly since the thirteenth century (Levin, 2010, p. 528). Interestingly, even in the early middle ages, the killing of another human being, even if in self-defense, was still considered homicide by the Crown. Phrased another way, early English Common Law did not permit one to “stand one’s ground” and kill in self-defense, and only permitted the killing of another if one was attempting to apprehend a so-called “fleeing felon,” if you need to kill to protect yourself from a

Beckman, James, “The Problem with Stand Your Ground Laws: A Proven Detriment to Public Safety.” Copyright ©2016 by James Beckman, J.D., LL.M. Reprinted by permission.

robbery attempt or were acting under special permission (a writ) from the Crown (Mischke, 1981, pp. 1002–1003). The origins of the ability to kill in self-defense ironically initially developed as almost a post-trial mitigating factor in sentencing, by showing that one tried to retreat as far as possible and only killed as a last resort. If a defendant could prove that he or she attempted to flee and retreat and only killed as a last resort, the jury could enter a special finding of guilty. This enabled the Crown to intervene in the case and possibly commute or pardon the defendant’s sentence, based upon any unique case circumstances (Brown, 1991, p. 3). Thus, ironically, for hundreds and hundreds of years before the United States became a sedivte country in 1783, English Common Law disfavored the so-called modern-day right to stand one’s ground in self-defense. The requirement that a convicted defendant could have the Crown intercede on his or her behalf by showing that he or she retreated to the wall and did everything possible to avoid bloodshed was the legal requirement for hundreds of years and was the genesis of the “duty to retreat” rules that gain a prominent foothold in the United States centuries and centuries later. As one law scholar has written, for centuries at common law, the Crown made clear through its laws and “communicated to the citizens that the right to defend one’s self against an attack was not an automatic license to kill” (Glinton, 2013, p. 1), arguably unlike the mentality of many in the United States today under modern SYG laws.

Yet, early on in the American experience, states (particularly those in the South and West) allowed for the use of deadly force to defend against deadly force and refused to impose the “duty to retreat” that had existed for centuries in England (Catafalmo, 2007, p. 507). These states become known as “no retreat” jurisdictions. These states constituted a majority of states well into the 1960s. Particularly after the drafting the influential Model Penal Code (MPC) in 1962 (which advocated for a “duty to retreat” before utilizing deadly force in self-defense), more and more states began imposing a “duty to retreat” requirement before using deadly force in self-defense (when outside of one’s home). Simply put, in jurisdictions adopting this rule, the victim must retreat if outside the home (if he or she could do so safely) before utilizing deadly force. For those states that refused to adopt the “duty to retreat” rule (which MPC acknowledged was still a majority of states when the MPC was finalized in 1962), one could already stand one’s ground, and utilize deadly force if one was in imminent fear of grave bodily harm or death. Phrased another way, at least in the 1960s, a majority of jurisdictions had laws that specified that “a person should not be required to resort to what some might deem cowardice

in order to spare the life of the one who precipitated the difficulty in the first place” (Loewy, 2003, p. 76). The idea behind this retreat rule (beyond its centuries old mooring in the law) is that one should not needlessly shed blood (even an alleged criminal’s blood) “when a person can avoid danger by running away” (Loewy, 2003, p. 76).

The “duty to retreat” rule began to gain traction and was adopted by more and more jurisdictions between 1962 and 2005. Indeed, a variety of well accepted criminal law textbooks asserted that “duty to retreat” states actually outnumbered “no retreat” states for many years after the completion of the MPC and prior to the passage of Florida’s SYG law in 2005 (see, for e.g., Schmalleger, 2002, p. 163; Loewy, 1987, p. 68). Indeed, as late as 2002, one prominent scholar (Dr. Frank Schmalleger, Professor Emeritus at the University of North Carolina) asserted that “most jurisdictions impose a retreat rule upon those who would claim self-defense” (Schmalleger, 2002, p. 163). Another prominent law professor similarly asserted several decades earlier that “the ‘retreat’ rule . . . is adopted by many jurisdictions and the M.P.C. [Model Penal Code] . . .” (Loewy, 1987, p. 68). While somewhat speculative, the reason why many states adopted this rule was because requiring victims of crime to retreat when they safely could do so clearly had the tendency to reduce the loss of life (and not increase it) and de-escalate violent situations (and not increase them). Further, as will be explained below, the “duty to retreat” rule, while much maligned by the NRA, actually did not actually preclude victims of potential crimes from utilizing deadly force if the victim had any subjective doubt whatsoever that he or she could not escape completely and safely without harm. If the potential victim had any doubts, he or she could utilize deadly force to defend themselves.

Thus, one of the most deliberately overlooked aspects of the “duty to retreat” rule during political debates was the fact that victims need not retreat at all unless that person subjectively believes and knows that he or she could retreat with complete and utter safety (Loewy, 2003, p. 77). Thus, as one law professor has written, “even though a reasonable person might have known that he could retreat in complete safety, if this [victim] did not know it, he would be under no duty to retreat rather than use deadly force” (Loewy, 2003, p. 77). Likewise Professor Emeritus Frank Schmalleger has acknowledged that a victim’s retreat is only required “if [the] retreat can be accomplished with ‘complete safety’” (Schmalleger, 2002, p. 163). Yet, this salient and important element of the “duty to retreat” requirement was conveniently left out (or unintentionally or deliberately downplayed) in the political discussions leading up to the promulgation of Florida’s SYG law

of 2005, and the passage of similar laws in other states thereafter. Thus, put simply, if a victim did not subjectively believe he or she could extract themselves out of the situation with complete safety, a potential victim could lawfully use deadly force to repel an attack when he or she was in imminent fear of grave bodily harm or death regardless of the jurisdiction wherein the potential attack took place.

The Florida SYG Revolution

On April 26, 2005, then-Florida Governor Jeb Bush signed Florida Senate Bill 436 into law, amending Florida’s statutory laws on the use of deadly force in self-defense. What did these revisions do to the existing standards discussed above? First, the law eliminated entirely any duty to retreat for a potential victim in any place the potential victim was entitled to be (street corner, movie theatre, car, shopping mall, etc.)—basically making any public space a person’s “castle” for self-defense laws, even though the potential victim could have escaped the situation with complete and utter safety. Second, the law eliminated civil liability for those who utilized their concealed weapons in self-defense. Third, the revised law created a presumption of reasonable fear for the individual claiming self-defense, meaning the potential victim no longer needed to claim and offer some evidence that he or she was in imminent fear of grave bodily harm or death (Cheng and Hoekstra, 2012, p. 1). These changes prompted one of the twenty Florida legislators (Dan Gerber) who voted against the law to state that “it legalizes fighting to the point of death, without anybody having a duty to retreat” (Weaver, 2008,

p. 397).

Marion Hammer, a former president of the NRA, was one of the chief advocates and lobbyists for the ultimate passage of Florida’s now famous/infamous SYG law in 2005. One of the most effective political arguments of proponents of this new law was that the law was needed so that innocent victims need not have to try to futilely escape before being able to defend themselves with deadly force—even if the potential victims had doubts about their ability to escape (something never required by the “duty to retreat” rule). As evidence of this type of argument in trying to convince the legislature in Florida (and the electorate in Florida, generally), Marion Hammer was quoted in 2005 as providing the following example as evidence for a need to change Florida’s existing laws on self-defense:

[I]f someone had tried to drag a woman into an alley to rape her, the women [sic]—even though she might be licensed to carry concealed and ready to protect herself, the law would not allow her to do it. It required her to try to get away and

run and be chased down by the perpetrator before she could then use force to protect herself. (Center for Individual Freedom, 2005)

Roughly seven years later (in 2012), in the aftermath of the George Zimmerman shooting of Trayvon Martin, and when many were protesting Florida’s SYG law, two other Florida politicians attempted to defend the law on the same erroneous arguments made by Hammer seven years prior by setting forth an equally erroneous application of what “duty to retreat” laws actually entailed. The politicians stated:

Consider an elderly woman in a dimly lit parking lot or a college girl walking to her dorm at night. If either was attacked, her duty was to turn her back and try to flee, probably be overcome and raped or killed. Prior to ‘Stand Your Ground,’ that victim didn’t have the choice to defend herself, to meet force with force. (Schorsch, Gaetz, and Gaetz, 2012; also, Franks, 2016, p. 145)

Thus, if the only premise for a revision to Florida’s law to eliminate any duty to retreat was based upon the above type scenarios, the justification for such revisions were quite weak indeed—as one could always use deadly force (regardless of jurisdiction—whether it was a “retreat” or “no retreat” jurisdiction—if one did not subjectively believe one could flee completely and utterly successful from one’s attackers). However, a critical analysis of concerns and motivations of gun owners reveal a concern that was a more pragmatic argument in favor of these laws (but not as viscerally emotional as the above two examples)— namely the protection and insulation of gun owners with “concealed carry permits” from civil and/or criminal investigation of when they utilized their weapons in self-defense.

John R. Lott, Jr., a famous scholar who has written extensively on his theory of “more guns, less crime,” has postulated a number of reasons why he believes SYG laws make sense (summarized briefly below). However, at this point, it is relevant to note that Lott has suggested that SYG laws are needed to remove discretion from prosecutors and prosecuting attorneys, who arguable might be suspicious and divnoid of gun owners generally. That is, in order to protect and insulate gun owners who use a concealed firearm in self-defense against another, SYG laws (and the civil and criminal immunity provisions often contained within such laws) are needed to protect these law abiding gun owners from overreaching investigations by police or overzealous prosecutors who arguably might be anxious to indict the gun owners from killing

the person who allegedly posed a threat in the first place (Lott, 2013). John Roman, an expert on crime and a Senior Fellow at the Urban Institute, testified to the United States Judiciary Committee that the primary motive behind the promulgation of SYG laws was really to protect and insulate gun owners from the avoidance of a criminal trial. If an investigation or trial did occur, then “the purpose of enacting SYG is to increase the rate of justifiable homicide findings” in those cases (Roman, 2013). Thus, according to another firearms expert Glenn H. Utter, the SYG laws really have their genesis in the NRA’s desire to “avoid the financial cost of legal defense and the trauma of being tried in court for criminal conduct” and SYG laws “can most appropriately be understood as the result of a major increase in the number of citizens (estimated at more than 11 million) who have qualified for a concealed carry permit and who thus may face the legal entanglements resulting from the use of firearms in deadly confrontations” (Utter, 2016). As explained by Utter, “SYG laws negate the traditional duty to retreat from such confrontations and in several states provide for criminal and civil immunity” (Utter, 2016). Another scholar commented likewise stating that the rationale behind these laws “is to eliminate the fear of prosecution experienced by those who may act in self-defense” (Megale, 2010, p. 119). This makes 11 million (and growing) concealed gun owners more confident about their “right” to use their weapon in situations they deem merited, without fear of overzealous or over-reaching prosecution, or in being sued in a civil action. Marion Hammer, one of the chief proponents of Florida’s law, acknowledged as such when he stated that these laws were necessary to protect the victim of attacks (i.e., lawful gun owners) from prosecution (Weaver, 2008, p. 397). It was never really about little old ladies or college females in dark alleys who could not outrun their potential attackers or being lawfully precluded from legally utilizing a firearm that she might have been carrying in her purse for her self-defense to thwart a violent attack.

In order to fully understand the deficiencies in SYG laws, one first must have an appreciation of the other arguments put forth by advocates of SYG laws. That is, setting aside the above political and pragmatic considerations of providing civil and criminal immunity to those currently carrying concealed firearms, are there actual other benefits to these laws? Phrased another way, what other arguments have made publically in defense of SYG laws? Perhaps the most well-known advocate for the theory of “more guns equals less crimes” and also a defender of SYG laws is John R. Lott, Jr. Lott has argued that SYG laws remove any element of doubt in the minds of the victim as to the propriety of the use of deadly force in self-defense,

and this removal of the element of doubt may save the victim precious seconds needed to protect him or herself (Lott, 2013). Further, advocates claim that SYG laws will ultimately deter violent crimes, as (so the argument goes) criminals will be less likely to commit a crime if they know their targeted victim is armed. For instance, one of the Florida legislators voting in favor of Florida’s law (Dennis Baxley) stated that a “requiring a duty to retreat was ‘a good way to get shot in the back,’ and the new law would deter criminals . . .” (Zbrzenj, 2012, p. 257). Gun rights advocates also claim that allowing for an armed citizenry through robust “concealed firearm carry laws” in conjunction with SYG laws will allow as an active early defense to active shooter scenarios as well, wherein a “good guy” can thwart the “bad guy” from committing unprovoked attacks (Utter, 2016).

Chief Arguments in Opposition of SYG Laws

Despite the very laudatory intentions that SYG laws would deter violent crime and reduce the number of homicides in the United States, unfortunately no convincing evidence has been put forth to date to support this thesis. In fact, the opposite appears to be true. In the empirical studies that have been conducted in the roughly eleven years since the passage of Florida’s law in 2005, several very persuasive studies have emerged that cast serious doubt on the efficacy and effectiveness of SYG laws in decreasing violent confrontations or in decreasing the number of homicides in these states.

First, homicide rates have actually increased in states with SYG law (since passage of those laws) than in those states without SYG laws. By analyzing national data from the Center for Disease Control’s National Vital Statistics System, economists Chandler McClellan and Erdal Tekin concluded that homicides significantly increased (especially among Caucasian shooters) in those states who had adopted Florida SYG type laws (McClellan and Tekin, 2012). On average, McClellan and Tekin also concluded that homicides increased 7.1% in states after those states adopted SYG laws. McClellan and Tekins’ study was also replicated by two Texas A&M University professors, Cheng Cheng and Mark Hoekstra, who utilized the Federal Bureau of Investigation Uniform Crime Reports (through 2011) to analyze the impact (if any) of SYG laws on homicide rates and the potential deterrence of violent crimes. Consistent with McClellan and Tekin’s study, Cheng and Hoekstra found that homicides increased after adoption of SYG laws. Also, comparing states the few remaining states without SYG laws with the great majority of states which now have SYG laws, the scholars additionally concluded

that there was no evidence that SYG laws actually deterred crime and, quite the contrary, found that SYG laws is a significant factor which may logically lead all parties to a confrontation to escalation of violence (rather than defusing the situation) (Cheng and Hoekstra, 2013). Finally, a 2014 report by the American Bar Association concluded that “proponents of Stand Your Ground laws could point to no examples of cases wherein traditional self-defense law would not have protected a law-abiding individual operating in justified self-defense” (American Bar Association Report, 2014, p. 25).

Consistent with the above, Florida, the jurisdiction starting the SYG revolution within the United States, also has witnessed an increase (not decrease) in the number of homicides since Florida’s SYG law was promulgated (Vendatam, 2013). Another very troubling statistical finding in Florida is that the SYG law, originally pitched to benefit the innocent law abiding citizens against hardened criminals, statistically appear to benefit criminal elements in society instead. For instance, in a ground breaking analysis by the Tampa Bay Times of over 100 SYG cases involving the fatal use of deadly force in self-defense since Florida’s SYG law went into effect, the study found that almost half of those arrested (and claiming SYG and self-defense) were arrested at least three times before the fatal shooting, often for violent prior actions (Stanley and Humburg, 2012). Further, this same study found that a third of the shooters claiming self-defense under Florida’s self-defense law had previously threatened to use a firearm against another, or at least were caught carrying firearms illegally.

Additionally, there is a growing body of evidence that has concluded that huge racial and gender disparities exist in SYG cases. For instance, the American Bar Association Task Force concluded that a fatal shooting by white individual (claiming self-defense under SYG laws) killing a black individual is 350 percent more likely to be found as justifiable homicide/shooting than if the a black shooter (claiming self-defense under SYG laws) were to kill a white individual (American Bar Association, 2014, p. 22). These disturbing racial and gender disparities have been extensively discussed by a number of scholars and studies in the recent past, including the American Bar Association (2014), Stanley and Humberg (2012), Franks (2016), Roman (2013), etc.

Occasionally advocates of SYG laws say that such laws are needed because it will prevent rampage shootings (if one of the targeted victims is armed). This argument is replete with fallacies and is an argument which assumes the person carrying the concealed weapon knows how to use the weapon very effectively. In fact,

however, most states that allow individuals “concealed weapon permits” require very minimal training, including at least one state (Virginia) that allows this training to be completed entirely online. This is hardly the sort of training that would enable a concealed weapon holder to prevent a rampage shooting in an effective manner, without potential damage or injury to other innocent bystanders. Additionally, there are six states that do not even require a license to carry a concealed weapon, meaning no training whatsoever is required (Utter, 2016). These states currently include Alaska, Arizona, Kansas, Maine, Vermont, and Wyoming. While some states require minimal training, such training certainly falls woefully short of police officer training, which scholars have characterized as equally inadequate (Stoughton, 2014). If police officers are not being adequately trained in the proper use of deadly force to repeal deadly force, it is doubtful that the average citizen with a concealed weapon permit has superior training. Indeed, many law enforcement organizations focus on other ways to provide safe ways to de-escalate and subdue violent suspects. For instance, law enforcement has encouraged the use of such alternative methods such as the follows: use of stun guns and stun shields; use of mace, tear gas and other chemical sprays; pepper spray; and rubber bullets and other nonlethal projectiles (Gardner and Anderson, 2000, p. 123). According to a 2016 New York Times article, the Police Executive Research Forum stressed a list of 30 alternative options for police in de-escalating and resolving potential violent threats, without the officers using violence themselves in response (Baker, 2016, p. A10). As argued by Professor Glenn Utter, “these principles should also apply to private citizens who carry concealed weapons.”

Finally, in the aftermath of every rampage shooting covered on national television (whether Columbine in 1999, Virginia Tech in 2007, or at Umpqua Community College in 2015), viewers see images of victims being rushed out of the buildings with hands held high in the air, in order for local law enforcement to quickly determine the active shooter from the scores of potential victims. If some of the potential victims to such an attack are seen to have firearms in their opposition, it does not take much imagination to envision the chaos and confusion such a visage might cause in the eyes of law enforcement quickly trying to determine “friend” from “foe” and to disable the identified “foe” as quickly as possible. There is no evidence that allowing people to actively arm themselves to combat these attacks has prevent even one attack, and it greatly increases the inability of responding law enforcement to respond.