Cross posted from my personal blog: Mischievous Ramblings II
I am not a lawyer. I have attended many classes and read many sources on self-defense law with respect to both firearms and martial arts. This is a distillation of my acquired information and should not be considered legal advice but a basis for discussion. I welcome learning that I am incorrect in my understanding.
This article from The Hill summarizes many issues I have with the general coverage of “Stand Your Ground” laws, especially with the inaccurate terminology “Shoot First”.
That said, every SYG law is different and some are undoubtedly more poorly written than others. And there are unquestionably racist, homophobic, and misogynistic biases in the US justice systems, state and federal.
The essential feature of an SYG law is this:
1) in a public place that you are
2) legally allowed to be,
3) if you are innocent,
4) when presented with a threat of lethal force,
5) you have no duty to retreat before
6) using lethal force in defense of self or others.
People and coverage tend to gloss over everything except 6). The initial 5 elements are critical, as is an understanding of basic self-defense law. SYG laws do not modify the general rules of using force in defense of self or others, they modify _one specific aspect_, which is removing the "duty to retreat".
Point by point:
1) SYG does not generally apply if you are in your own home or domicile. This can include and RV, motel room, rented housing or owned housing depending upon local law and interpretation. The applicable concept in this case is “castle doctrine”, which is the common law idea that “a man’s home is his castle” and thus there is no duty to retreat.
Yes, it’s sexist, as for much of American history it was literally a "man’s" home.
But that means that SYG laws are about public spaces, not homes. Generally speaking, there is already no "duty to retreat" from your own home.
2) You can’t break into a generally public space and claim SYG as a defense. This is kind of part of 3) but it would also presumably apply to someone in violation of a curfew or illegal assembly order. You must be legally in the space you are in.
3) If someone is in the process of committing a crime, SYG does not apply to them. This means that, for example, a felon illegally in possession of a firearm has no SYG rights.
4) Self-defense law in the US (varies by state) does not generally allow the use of lethal force in defense of self or others unless/until lethal force has been threatened or deployed against you. This is called “proportionality of response”. A gun or knife or bludgeon is lethal force. In many places, legally, a toy gun or replica gun, certainly an unloaded gun, counts. A fake knife might well count. A large strong individual with only fists confronting a small weak or physically disabled individual might constitute lethal force under the doctrine of "disparity of force". A single individual threatening individual violence might not be lethal force but a group might be. This is all subsumed under the general idea of a “reasonable person” — if a "reasonable person" thinks they (or others) are in imminent danger of death or severe bodily injury, they are entitled to utilize lethal force in defense of self or others.
Most places explicitly disallow use of lethal force in defense of property. There is overlap here with castle doctrine when we are talking about home defense, but in most places you cannot shoot someone who is walking out of your house with a TV or expensive jewelry. Or stealing your car.
5) is the crux of SYG. Many interpret common law as presenting a “duty to retreat” before using force in defense of self or others. "Castle doctrine" is explicitly the idea that one has no duty to retreat out of one’s home (domicile) before using such force.
SYG explicitly removes this duty to retreat from public areas. As a concept (implementations may vary), this is _ALL_ SYG does.
Note that “duty to retreat” presumes a safe mechanism for retreat. If your only escape from someone threatening to bludgeon you to death with a baseball bat is to run across 12 lanes of freeway speed traffic at rush hour, you have no safe avenue of retreat and claiming SYG as a defense is unnecessary. Again, this predicated on what a "reasonable person" would believe in your circumstances.
Now I happen to think that avoiding a lethal force encounter by retreating is the best option both legally and morally.
6) Generally speaking, one is entitled to use "proportional" force in defense of self or others against unlawful imminent threat of or actual use of force. In the absence of SYG, a "duty to retreat" if possible safely can generally be assumed, but if safe retreat is not possible (for self or others) or under SYG, one cannot be required to retreat before using "proportional" force in defense of self or others.
Long, I know. But a careful examination of points 1-5 makes it clear that many if not most cases with SYG invoked in popular media and mythology are nothing of the kind.
* Asshole who shot the kid through his front door? Not SYG. Castle doctrine might be relevant but to me the ultimate question is: how is someone standing outside your door (or even opening your storm door to knock on your actual door, if that happened) a threat of force? Because it’s not.
* Shithead who fired on people who accidentally drove up his driveway and we’re leaving when he shot? Not SYG. No threat of force.
* Even Trayvon Martin's case didn't involve SYG. SYG was never invoked as a defense and evidence was presented at trial (the range and angle at which Martin was shot) which would have make SYG irrelevant. Much more relevant to the Martin case would have been questions of innocence and initiation of a force encounter (who threatened whom?).
And so on.
It's moving into a different post at this point, but I want to add some stuff:
If SYG laws aren't "Shoot First" laws, what, if any, is their negative effect upon homicides in the US?
First, I think there's good statistical evidence that SYG laws increase homicides.
Second, I think that SYG laws encourage stupid people to use force inappropriately and illegally. The percentage of gun owners who get formal training is small. As a dilettante who enjoys shooting pistols, there have been years in the last decade when I got more training on my own annually than many cops get -- including not just shooting training, but training in the legal use of force in self defense.
There is all kinds of misinformation in the online (and RL) gun culture about this, from the old “if you shoot someone who’s burglarizing your house and they fall down outside, drag them back inside” to “as long as you say you were in fear for your life it’s ok to shoot” and a million others.
Third, I think the twin cultures of fear and militarism/machismo in the gun community contribute largely. Fear and the idea that retreating makes a coward drive the adoption of SYG laws, as they are generally unnecessary in the greater scheme of self-defense law.
People like the shithead the asshole governor of TX wants to pardon for murdering a protester (who was _legally_ open carrying a gun -- itself a symptom of excess machismo in the gun culture) build up online personae based upon their willingness (and eagerness) to use lethal force against people they fear and hate.
I believe the term "assault rifle" inaccurately used in marketing to describe semi-automatic rifles was first used in an ad talking about "Your Man Card", as though owning one made you more masculine, more virile, and less resistible to attractive women (not unlike beer ads, actually).
I had an instructor tell me about his security: a four layer multiply backed up system of cameras, sensors, lights, and alarms, with loaded guns stashed (safely to prevent children's access, as he's a grandfather) in every room in the house. When I asked him what he was afraid of, he replied "I'm not afraid of anything".