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Stand-your-ground law

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This is an old revision of this page, as edited by HuntersMoon22 (talk | contribs) at 15:14, 14 February 2014 (→‎International overview: deleted. Germany does not have a "stand your ground law". It applies a simple test of reasonable self defence just as English and US Law does). The present address (URL) is a permanent link to this revision, which may differ significantly from the current revision.

"Stand your ground" redirects here. For other uses, see Stand Your Ground (disambiguation).

A stand-your-ground law is a type of self-defense law that gives individuals the right to use deadly force to defend themselves without any requirement to evade or retreat from a dangerous situation. It is law in certain jurisdictions within the United States. The basis may lie in either statutory law or common law precedents or both. One key distinction is whether the concept applies only to defending lawfully occupied locations. Under these legal concepts, a person is justified in using deadly force in certain situations, and the stand-your-ground law would be a defense or immunity to criminal charges and civil suit. The difference between immunity and a defense is that an immunity bars suit, charges, detention, and arrest. A defense, including an affirmative defense, is a fact or set of facts that may avoid or mitigate the adverse legal consequences of the defendant's otherwise unlawful conduct.

In the United States

Forty-six states in the United States have adopted the castle doctrine, that a person has no duty to retreat whatsoever when their home is attacked.[1][2] Twenty-two states go a step further,[3] removing the duty of retreat from other locations outside the home. Such "stand your ground", "Line in the Sand" or "No Duty to Retreat" laws thus state that a person has no duty or other requirement to abandon a place in which he has a right to be, or to give up ground to an assailant. Under such laws, there is no duty to retreat from anywhere the defender may legally be.[4] Other restrictions may still exist; such as when in public, a person must be carrying firearms in a legal manner, whether concealed or openly.

"Stand your ground" governs[citation needed] U.S. federal case law in which right of self-defense is asserted against a charge of criminal homicide. The Supreme Court of the United States ruled in Beard v. U.S.[5] (158 U.S. 550 (1895)) that a man who was "on his premises" when he came under attack and "...did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm...was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground."[6][7] However, the Supreme Court decision did not create case law impugning a state's authority to either adopt or invalidate stand-your-ground law.

Effect on crime rates

Supporters and critics of the law dispute whether or not it has an effect on crime rates. The third edition of More Guns, Less Crime by John Lott[8] says that states adopting “stand your ground”/"castle doctrine" laws reduced murder rates by 9 percent and overall violent crime by 11 percent, and that occurs even after accounting for a range of other factors such as national crime trends, law enforcement variables (arrest, execution, and imprisonment rates), income and poverty measures, demographic changes, and the national average changes in crime rates from year-to-year and average differences across states.

A study by Texas A&M economics professors observed that the adoption of stand-your-ground laws correlated with a statistically significant increase in the raw homicide rate. Little to no relationship was seen between adoption of the law and a deterrence of crime. The authors of the study were unable to determine what percentage of the increase was justifiable homicide, due to the reporting of homicide to the FBI often lacking notation whether the homicide was justifiable or not.[9][10]

Another analysis of stand-your-ground laws by economists at Georgia State, using monthly data from the U.S. Vital Statistics, observed a significant increase in homicide and injury of whites, especially white males.[11] They also analyzed data from the Health Care Utilization Project, which revealed significantly increased rates of emergency room visits and hospital discharges related to gun injuries in states which enacted these laws.

In a 2007 National District Attorneys Association symposium, numerous concerns were voiced that the law could increase crime. This included criminals using the law as a defense for their crimes, more people carrying guns, and that people would not feel safe if they felt that anyone could use deadly force in a conflict. The report also noted that the misinterpretation of clues could result in use of deadly force when there was, in fact, no danger. The report specifically notes that racial and ethnic minorities could be at greater risk because of negative stereotypes.[12] In Florida, use of the law by blacks and Hispanics has equaled or exceeded those killed.[13]

Florida state representative Dennis Baxley, an author of the law, notes that crime rates in Florida dropped significantly between 2005, when the law was passed, and 2012.[14] However, crime rates had been declining in Florida as well as nationally since at least 2000.[15] Representative Baxley told Politifact Florida that he does not believe his law is the main reason for the drop in crime rates in Florida, but may be one of several reasons.

The Stanford Law Review found that aggravated assaults temporarily increased in those states with stand-your-ground,[16]

US states

Most states have some form of stand-your-ground law. Alabama,[17] Alaska,[18] Arizona,[19] California,[20][21][22] Florida, Georgia, Idaho, Indiana, Iowa,[23] Kansas, Kentucky,[24] Louisiana,[19] Maine, Massachusetts (though the term is used very loosely there),[25] Michigan,[19] Mississippi, Missouri,[26] Montana,[19] New Hampshire,[27] North Dakota, Ohio, Oklahoma,[19] Pennsylvania,[28] Rhode Island,[29] South Carolina, South Dakota, Tennessee,[19] Texas,[30] Utah,[31] West Virginia,[19] Wisconsin[32] and Wyoming have adopted Castle Doctrine statutes, and other states (Iowa,[33] Virginia,[34] and Washington) have considered stand-your-ground laws of their own.[35][36][37]

For example, Michigan's stand-your-ground law, MCL 780.972, provides that "[a]n individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if . . . [t]he individual honestly and reasonably believes that the use of deadly force is necessary to prevent" the imminent death, great bodily harm, or sexual assault of himself or another individual.[38] The "reasonable belief" requirement is different from a sincere belief, meaning that a "reasonable person" should be able to examine the situation and see a threat to life or serious injury. For example, a man who is mugged at gunpoint then shoots the mugger in the back as he is running away might "sincerely" believe the mugger was going to turn around and shoot him, but such a belief would likely not be considered "reasonable" under the circumstances.

Some of the states that have passed or are considering stand-your-ground laws already implement stand-your-ground principles in case law. Indiana and Georgia, among other states, passed stand-your-ground statutes due to possible concerns of existing case law being replaced by the "duty to retreat" in later court rulings. Other states, including California [21] and Virginia,[39] have implemented stand-your-ground judicially but have not adopted statutes. West Virginia had a long tradition of "stand your ground" in its case law[40] before codifying it as a statute in 2008. These states did not have civil immunity for self-defense in their previous self-defense statutes. California provides civil remedy for damages resulting from the use of self-help,[41] and its supreme court has been critical of the doctrine since 1858.[42]

History

Laws or rulings implementing features of stand your ground have a long history within the United States.[citation needed] Many state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II of 1381 (Forcible Entry Act 1381), which imposed criminal sanctions intending to discourage the resort to self-help.[43][44][45] This required a threatened party to retreat, whenever property was "involved" and resolve the issue by civil means.

Later, some local districts in the US reverted to ancient common law doctrines (pre-thirteenth century) that entitled one to use force, as the new "American way." In 1877 Indiana, a court stated in Runyon v. State: "The tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save a human life . . . [Therefore,] [t]he weight of modern authority . . establishes the doctrine that when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in reasonable exercise of his right of self-defence, his assailant is killed, he is justifiable."[46]

Over a hundred [and seventy-five] years ago the Supreme Court of Illinois in Reeder v. Purdy, supra, 41 Ill. 279, 284- 286 recognized the incongruity of a statutory policy intended to discourage the use of self-help and a judicial policy which encouraged self-help: "We state then, after a full examination of this subject, that in our opinion the statutes of forcible entry and detainer should be construed as taking away the previous common law right of forcible entry by the owner, and that such entry must be therefore held illegal in all forms of action."

In 1889, Associate US Supreme Court Justice Stephen Johnson Field ordered the former Chief Justice of California David S. Terry shot dead claiming "self-defense."[47] Despite the national sensation, Field continued to serve on the court in concurrence with its' United States Supreme Court decision on the matter, In re Neagle, which influenced the later reasoning of the courts on the issues of murder and self-defense.

Subsequent cases invoking a "no duty to retreat" argument include People v. Lewis, 48 P. 1088 (Cal. 1897); Boykin v. People, 49 P. 419 (Colo. 1896); Ragland v. State, 36 S.E. 682 (Ga. 1900); Page v. State, 40 N.E. 745 (Ind. 1894); State v. Hatch, 46 P. 708 (Kan. 1896); and State v. Partlow, 4 S.W. 14 (Mo. 1887).

Five years after Associate Justice Field left, Associate Justice Oliver Wendell Holmes, Jr. joined the court. He declared in Brown v. United States (1921) (256 U.S. 335, 343 (16 May 1921)), a case that upheld the "no duty to retreat" maxim, that "detached reflection cannot be demanded in the presence of an uplifted knife".[48]

Controversy

Stand-your-ground laws are frequently criticized and called "shoot first" laws by critics, including the Brady Campaign to Prevent Gun Violence.[49] In Florida, self-defense claims tripled in the years following enactment.[49][50] The law's critics argue that Florida's law makes it very difficult to prosecute cases against people who shoot others and then claim self-defense. The shooter can argue that he felt threatened, and in most cases, the only witness who could have argued otherwise is the deceased.[49] This problem is inherent to all self-defense laws, not just stand your ground laws. Before passage of the law, Miami police chief John F. Timoney called the law unnecessary and dangerous in that "[w]hether it's trick-or-treaters or kids playing in the yard of someone who doesn't want them there or some drunk guy stumbling into the wrong house, you're encouraging people to possibly use deadly physical force where it shouldn't be used."[51][52]

In Florida, a task force specially appointed by the governor issued a report concurring with the core principles of the state's stand your ground law, but recommending further legislative clarification of the requirement that the person asserting the defense not be engaged in "unlawful activity." The report also recommended legislative standards for recognized neighborhood watch groups.[53] An independent task force was convened by a state senator, which issued its own report and submitted it to the Governor's Task Force.[54] Among its recommendations was the unanimous conclusion that claims of self-defense be submitted to a grand jury prior to prosecution. One of the witnesses before the independent task force complained that the law is "confusing."[55] Those testifying to the independent task force included Buddy Jacobs, a lawyer representing the Florida Prosecuting Attorney's Association. Jacobs recommended the law's repeal, feeling that modifying the law would not fix its problems.

In a July 16, 2013 speech in the wake of the jury verdict acquitting George Zimmerman of charges stemming from the shooting death of Trayvon Martin, Attorney General Eric Holder criticized stand-your-ground laws, saying they "senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods."[56] The relevance of the stand-your-ground provision of the self-defense law to the Zimmerman case has been questioned, however, because Zimmerman claimed he was restrained at the time of the shooting and had no option to retreat.[57] Although Zimmerman's defense team did not use the "stand your ground" defense during their trial and instead opted to use "self-defense" as their official defense,[58] Circuit Judge Debra Nelson's instructions to the jury included the statement that he had no duty to retreat as per Florida's stand-your-ground law.[59]

See also

References

  1. ^ Mark Randall, Research Fellow (2012-04-24). "The Castle Doctrine And Stand-Your-Ground Law". Cga.ct.gov. Retrieved 2013-08-06.
  2. ^ "Daluiso v. Boone, 71 Cal.2d 484". the majority of American states have construed their statutes of forcible entry, both penal and civil, in such a manner as to abrogate the common law privilege to use force in the recovery of possession of land. See 1 Harper and James, op.cit. supra, at § 3.15, p. 258; Prosser, Law of Torts (3d ed. 1964) § 23, p. 125. See e.g., Mason v. Hawes (1884) 52 Conn. 12, 16 [52 Am.Rep. 552]; McIntyre v. Murphy (1908) 153 Mich. 342, 346-347 [116 N.W. 1003, 1004-1005, 15 Ann.Cas. 802]; Lobdell v. Keene (1901) 85 Minn. 90, 101 [88 N.W. 426, 430]; Strauel v. Lubeley (1915) 186 Mo.App. 638, 643-644 [172 S.W. 434, 435-436]; Mosseller v. Deaver (1890) 106 N.C. 494, 496-498 [11 S.E. 529, 530, 8 L.R.A. 537, 19 Am.St.Rep. 540]; Weatherly v. Manatt (1919) 72 Okla. 138, 139-140 [179 P. 470, 471]; Walgreen Co. v. Walton (1932) 16 Tenn.App. 213, 229 [64 S.W.2d 44, 53]; Ray v. Dyer (Tex.Civ.App. 1929) 20 S.W.2d 328, 330; Buchanan v. Crites (1944) 106 Utah 428, 436 [150 [71 Cal.2d 493] P.2d 100, 103]. See also Whitney v. Brown (1907) 75 Kan. 678, 681-683 [90 P. 277, 278, 11 L.R.A. N.S. 468, 12 Ann.Cas. 768]; Rest.2d Torts, § 185, com. a.) Less than half of the states in the United States have adopted the Castle doctrine Mark Randall provides no basis for his claim that the majority of appellate courts have overruled their precedent.
  3. ^ "states with stand your ground". Christian Science Monitor.
  4. ^ Florida Statutes Title XLVI Chapter 776
  5. ^ "Beard v. United States - 158 U.S. 550 (1895)". justia.com. justia.com Supreme Court Center. Retrieved 2013-07-27.
  6. ^ "Kopel DB: "The Self-Defense Cases," 2000". Davekopel.com. Retrieved 2012-03-23.
  7. ^ "''Beard v. United States'', 158 U.S. 550 (1895)". Supreme.justia.com. Retrieved 2012-03-23.
  8. ^ "More Guns, Less Crime: Understanding Crime and Gun Control Laws (University of Chicago Press, third edition, 2010)". Press.uchicago.edu. Retrieved 2013-07-25.
  9. ^ "Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine" (PDF). Retrieved 19 September 2012.
  10. ^ "Study Says ‘Stand Your Ground’ Laws Increase Homicides - Law Blog - WSJ". Retrieved 19 September 2012.
  11. ^ McClellan, Chandler; Tekin, Erdal (June 2012). "Stand Your Ground Laws, Homicides, and Injuries". Bulletin on Aging and Health. NBER Working Paper No. 18187.
  12. ^ Jansen, Steven; Nugent-Borakove, M. Elaine. "Expansions to the Castle Doctrine: Implications for Policy and Practice" (PDF). National District Attorneys Association. Retrieved 2013-06-28.
  13. ^ Florida blacks benefit from Florida 'Stand Your Ground' | The Daily Caller
  14. ^ "Half true:Crime rates in Florida have dropped since 'stand your ground,' says Dennis Baxley". Politifact. March 23, 2012. Retrieved March 24, 2012.
  15. ^ "Crime rates in Florida have dropped since 'stand your ground,' says Dennis Baxley". Politifact Florida. Tampa Bay Times and The Miama Herald. Retrieved 16 January 2013.
  16. ^ Ayres, Ian; Donohue III, John J. (2003). "Shooting Down the More Guns, Less Crime Hypothesis" (PDF). ''Stanford Law Review''. 55 (4): 1193–1312. Retrieved 2013-07-25.{{cite journal}}: CS1 maint: extra punctuation (link)
  17. ^ Ala. Code 13A-3-23(b): "A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his ground."
  18. ^ Eaton, Daysha (2013-06-20). "Parnell Signs Bills, Resolutions Supporting Gun Rights | Alaska Public Media". Alaskapublic.org. Retrieved 2013-07-22.
  19. ^ a b c d e f g Martosko, David (April 1, 2012) "'Stand your ground' laws not just GOP policy, records show" The Daily Caller. Retrieved 2012-04-03.
  20. ^ "Penal Code §§ 197, 198.5". Legislative Counsel, State of California. Retrieved April 3, 2012.Template:Inconsistent citations {{cite journal}}: Cite journal requires |journal= (help)CS1 maint: postscript (link)
  21. ^ a b "CALCRIM No. 505. Justifiable Homicide". CaliforniaJuryInstructions.Net. January 2006. Retrieved April 3, 2012.
  22. ^ "Daluiso v. Boone, 71 Cal.2d 484". Official California Reports, 2nd Series, Vol. 71, Pg. 484 (California Supreme Court reporter). June 27, 1969. Retrieved July 22, 2013. California has justifiable homicide provisions, as distinct from "Stand Your Ground." To the contrary, the state provides civil remedy for injury caused by self-help--even for intentional infliction of emotional distress. See Official Reports Opinions Online
  23. ^ "Iowa Code Section 704.1".
  24. ^ "KRS 503.055". Commonwealth of Kentucky. Retrieved 2014-01-22.
  25. ^ "General Laws: CHAPTER 278, Section 8A". Malegislature.gov. Retrieved 2013-07-22.
  26. ^ "Missouri Gun Rights: An Overview of Gun Laws in Missouri ('Castle Doctrine')". civilliberty.about.com. Retrieved July 27, 2013.
  27. ^ "Section 627:4 Physical Force in Defense of a Person".
  28. ^ "Pennsylvania's Stand Your Ground Law Mirrors Florida's". Public Source. March 21, 2012.Template:Inconsistent citations{{cite web}}: CS1 maint: postscript (link)
  29. ^ "11-8-8". Rilin.state.ri.us. Retrieved 2012-01-11.
  30. ^ "Gov. Perry Signs Law Allowing Texans to Protect Themselves". Office of Governor Rick Perry Press Release. March 27, 2007.Template:Inconsistent citations{{cite web}}: CS1 maint: postscript (link)
  31. ^ 76-2-405 "Force in defense of habitation". Utah criminal Code. {{cite web}}: Check |url= value (help)
  32. ^ "Walker signs 'castle doctrine' bill, other measures".Template:Inconsistent citations{{cite web}}: CS1 maint: postscript (link)
  33. ^ "HF2215 An Act relating to the justifiable use of reasonable force and providing a remedy".
  34. ^ "HB 48 Castle doctrine; self-defense and defense of others". Virginia's Legislative Information System.
  35. ^ "Fortifying The Right To Self-Defense". National rifle Association. February 26, 2006.
  36. ^ "Castle Doctrine: Protecting Our Right to Self-Defense". National Rifle Association. (map showing states which have enacted a Castle Doctrine law)
  37. ^ Willing, Richard (March 20, 2006). "States allow deadly self-defense". USA Today. Retrieved April 4, 2006.
  38. ^ "Self-Defense Act". Michigan Legislature. Retrieved 16 July 2013.
  39. ^ "Virginia Concealed Carry Permit Information". USA Carry. Retrieved September 10, 2013.
  40. ^ See State v. Cain, 20 W.Va. 679 (1882); State v. Laura, 93 W.Va. 250, 116 S.E. 251 (1923); State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927); State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935); State v. Bowyer, 143 W.Va. 302, 101 S.E.2d 243 (1957); State v. Green, 157 W.Va. 1031, 206 S.E.2d 923 (1974); State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978); State v. W.J.B., 166 W.Va. 602, 276 S.E.2d 550 (1981)
  41. ^ "Daluiso v. Boone, 71 Cal.2d 484". Official California Reports, 2nd Series, Vol. 71, Pg. 484 (California Supreme Court reporter). June 27, 1969. Retrieved July 22, 2013. "The fact that at the time of his alleged forcible entry upon land, defendant had title to, or a right to possess, the land is no defense in an action against him under the forcible entry statutes...The legislative intent in enacting the forcible entry statutes was to establish a summary procedure for the restitution of real property and, thereby, to promote the settlements of disputes over possession by legal means, rather than by self-help." See Official Reports Opinions Online
  42. ^ "Dickinson v. Maguire, 9 Cal. 46". Official California Reports, Vol. 9, Page 46 (California Supreme Court reporter). January 1858. Retrieved July 22, 2013. "At common law, a man disseized of his lands might lawfully regain possession thereof by force. In doing this, he might be guilty of a breach of the peace, and be responsible criminally; but the party turned out by force, had no remedy to regain possession. "But this indulgence of the common law," says Hawkins, "having been found by experience to be very prejudicial to the public peace..." See Official Reports Opinions Online
  43. ^ Dickinson v. Maguire, 9 Cal. 46, The Chief Justice of California during the ruling was David S. Terry, who ironically, was later killed by order of Associate Supreme Court Justice Field under the guise of self-defense.
  44. ^ Daluiso v. Boone , 71 Cal.2d 484 for English common law history
  45. ^ Dustin v. Cowdry (1851) 23 Vt. 631, 639-640. Official Vermont Reports, Vol. 23, Pg. 631 (Supreme Court of Vermont reporter). 1851. Retrieved July 27, 2013. [H]ad the present plaintiff elected to have proceeded under the statute, there can be no doubt, he might have subjected the defendants to punishment by way of fine, obtained restitution of the possession, and sustained an action of trespass, and recovered three fold damages for the expulsion and detention. And if such be the undeniable rights of the parties, under the statute, it is difficult to see, why, if the party waive all penalty under the statute, he may not sustain trespass qu. cl. against the defendants, the same as against any other wrong doers. Their [defendants'] right to possession gave them no more right to enter in that manner [by force], than if they had been mere strangers. ...
  46. ^ http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1290&context=mulr
  47. ^ Prior, in 1859 Field replaced the former chief justice of the California Supreme Court, David S. Terry because Judge Terry killed a United States Senator from California (David Colbreth Broderick) in a duel and left the state.
  48. ^ "Brown v. United States, 256 U.S. 335, 343 (1921)". Supreme.justia.com. 1909-03-04. Retrieved 2013-07-25.
  49. ^ a b c "Florida 'Stand Your Ground' law could complicate Trayvon Martin teen shooting case". MSNBC. March 20, 2012. Retrieved March 21, 2012.
  50. ^ "Deaths Nearly Triple Since 'Stand Your Ground' Enacted". CBS Miami. 2011-03-20. Retrieved 2012-03-23.
  51. ^ Goodnough, Abby. "Florida Expands Right to Use Deadly Force in Self-Defense". The New York Times. nytimes.com. Retrieved March 23, 2012.
  52. ^ Goodman, Howard. "NRA's Behind-the-Scenes Campaign Encouraged 'Stand Your Ground' Adoption". Florida Center for Investigative Reporting. fcir.org. Retrieved March 23, 2012.
  53. ^ "Report of the Governor's Task Force on Citizen Safety and Protection - Final" (PDF). Feb 21, 2013. Retrieved 18 July 2013.
  54. ^ Smith, Fla. Sen. Chris (Apr 30, 2012). "Final Report to Governor's Task Force" (PDF). Retrieved 18 July 2013.
  55. ^ "Trayvon Martin case: Florida task force told 'stand your ground' law confusing". TheGrio. April 6, 2012. Retrieved April 6, 2012.
  56. ^ Holder, Eric. "Remarks as Prepared for Delivery by Attorney General Eric Holder at the NAACP Annual Convention" (PDF). Retrieved 16 July 2013.
  57. ^ "Zimmerman's Prosecutors Did Not Think They Were Trying a 'Stand Your Ground' Case - Hit & Run". Reason.com. 2013-07-15. Retrieved 2013-07-22.
  58. ^ "Zimmerman drops 'stand your ground' defense in Trayvon Martin murder case". The Raw Story. 2013-03-06. Retrieved 2013-07-22.
  59. ^ July 21, 2013, 11:19 PM (2012-12-17). "Outcry unlikely to spur change in stand-your-ground law". CBS News. Retrieved 2013-07-22.{{cite web}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
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