As debates continues concerning gun laws and the amount of violence in the United States, many citizens have voiced increasing concerns about personal safety and the amount of force that is considered to be justifiable when faced with threats of violence or death. As a result, Stand Your Ground laws have been enacted in many states to establish the legal boundaries the rights afforded to individuals to protect themselves from imminent threats. The legalities provided by the Stand Your Ground laws gives pause to reflect on are laws of this nature necessary in this ever-changing world or do these laws provide the means to commit justifiable homicide?
Traditionally, the citizens of the US have been afforded the right to protect themselves and others from attackers provided certain provisions were applied. The first course of action was a “duty to retreat”, which provides a legal requirement to attempt to flee from violence. If retreating is not a possibility, the use of non-deadly force is permitted; however, deadly force could be applied as a means of last resort. The sole exception was afforded through the Castle Doctrine. The Castle Doctrine allows the use of deadly force if an individual is protecting themselves, or others, within the confines of their own home.1 Stand Your Ground laws expand the boundaries of one’s own home to include public areas. The individual no longer has a duty to retreat and the use of deadly force is permitted as the first method of protecting oneself.2
Following the passage of legislation to define the first Stand Your Ground laws in Florida in 2005, the American Legislative Exchange Council (ALEC), a national coalition comprised of conservative corporations and state legislators, presented guidelines to provide guidance to other states to enact similar legislation. At that time, the efforts of ALEC were supported through a paid sponsorship provided by the National Rifle Association (NRA) and a co-chair of the committee that provided the model law was an executive with the NRA. The spread of Stand Your Ground laws began. The model law was named the “Castle Doctrine Act.3
The five principles presented in the Stand Your Ground Law are no duty to retreat anywhere when an individual is there legally, no duty to retreat in defense of property, the presumption that the use of deadly force was lawful, immunity from arrest or prosecution, and immunity from civil suits.4 Since 2005, a total of 33 states have enacted various forms of Stand Your Ground laws through legislation based on one or more of these principles. These states are Alabama, Alaska, Arizona, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. The legislation enacted has removed the duty to retreat in all of these states. Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Kansas, Kentucky, Michigan, Missouri, Montana, North Carolina, Pennsylvania, South Carolina, Texas, West Virginia, Wisconsin, and Wyoming provide civil immunity in Stand Your Ground cases. In addition, Alabama, Florida, Georgia, Kansas, Kentucky, North Carolina, and South Carolina provide immunity from criminal prosecution.5
The Stand Your Ground laws do not provide guidelines to provide justification for the use of deadly force. This omission is addressed in the Stand Your Ground laws in Pennsylvania by requiring any defense that claims this law as justification to prove that the defendant was in the public space legally, the defendant was not engaged in criminal activity, the defendant must observe the attacker visibly display a weapon, and the defendant must believe that the use of deadly force is necessitated to prevent death, kidnapping, serious bodily injury, or rape.6
Following the high profile cases in Florida concerning George Zimmerman and Michael Dunn, concentrated focus has been provided to Stand Your Ground laws. Proponents of Stand Your Ground laws postulate that these laws codify the common law doctrine of self-defense, serve as a deterrent for violent crimes such as burglary, robbery, and aggravated assault, and the Stand Your Ground law did not apply as justification in the deaths of Trayvon Martin and Jordan Davis as the law is a function of the criminal process.7 The intent of these laws is to provide protection for victims who have to resort to deadly force in order to protect themselves. The criterion under which Stand Your Ground is applicable is simple. An individual has to have a reasonable fear or perception of imminent danger. However, there are no guidelines to provide clarity into the legal definition of reasonable fear or perception of imminent danger or situations that could be perceived as dangerous, which allows the law to be widely interpreted. Stand Your Ground legislation provides the opportunity for prejudices and biases to serve as the basis of fear through which an individual can perceive danger is imminent.8
These arguments are countered by opponents’ claims that since Stand Your Ground laws remove the requirement to attempt to avoid or escape imminent danger, it allows deadly force to be used as a first resort. Prior to Stand Your Ground laws, the right to self-defense provided restrictions to the use of deadly force by stipulating that the defendant must have a reasonable belief that the amount of force used was “necessary to prevent imminent death or great bodily harm to himself or herself or another.”9 The common law doctrine of retreat required that an individual try to remove themselves from a situation in which danger is imminent before resorting to the use of deadly force with the exception of the Castle doctrine in which attempts to retreat was waived as the threat was within one’s own home. Stand Your Ground laws effectively expand the Castle doctrine to accommodate situations that may occur in any location an individual is legally present.10 The argument that Stand Your Ground laws serve as an deterrent to violent crime is countered with FBI statistics indicating that the number of cases concerning justifiable homicide have increased by 8 percent. Since Florida first enacted the Stand Your Ground law in 2005, justifiable homicide has tripled. Opponents consider this as proof that the law is ineffective as it demonstrates a correlation between the implementation of the Stand Your Ground law and the increase in justifiable homicides.11 The argument that the Stand Your Ground was not applicable in the high-profile cases of Zimmerman and Dunn is counter with the application of the law as it is written alters the prosecution’s burden of proof in cases where claims of justifiable homicide are presented. This negates the need for a homicide defendant to claim immunity provided by the Stand Your Ground law.12
An issue with the Stand Your Ground law is the concept of immunity. The law in Florida states “A person who uses force as permitted in § 776.012, § 776.013, or § 776.031 is justified in using such force and is immune from criminal prosecution and civil action.”13 In addition, the law expands the definition of the term criminal prosecution to include “arresting, detaining in custody, and charging or prosecuting the defendant.” 14 By providing immunity, individuals who are claiming the Stand Your Ground law is applicable is unable to be arrested unless the investigating officers can establish probable cause that the use of deadly force was not utilized lawfully for self-defense, the defense of others, or the defense of the home. In addition to establish probable cause that a crime has been committed, law enforcement must also ascertain that the Stand Your Ground law is not applicable as the evidence is evaluated and processed. 15
In addition to criminal immunity, the Stand Your Ground law is also provided immunity from civil lawsuits that may occur as a result of the actions of the individual who applied deadly force. This prevents survivors from initiating a wrongful death lawsuit. It also prevents other individuals, such as innocent bystanders, who were inadvertently injured from being in the general area, from initiating lawsuits to attempt to receive compensation for their injuries. However, if it is determined that the application of Stand Your Ground defense is unsuccessful, immunity from civil lawsuits is waived. 16
A primary issue with Stand Your Ground laws is the propensity for inconsistency and abuse with the application of the law. While the law in Florida states that law enforcement is permitted to utilize “standard procedures for investigation” in efforts to determine if probably cause exists in section 2, standard procedures are not clearly defined to provide clarity and cohesiveness throughout the state. The Eleventh Circuit Court acknowledged the lack of uniform guidelines in Reagan v. Mallory by stating “[u]nder Florida law, law enforcement officers have a duty to assess the validity of this defense, but they are provided minimal, if any, guidance on how to make this assessment.”17 This requires law enforcement to be well-trained in evaluating and assessing claims of Stand Your Ground to determine the validity of such a claim in addition to the regular duties of an officer of the law. Law enforcement is responsible for determining the lack of probable cause.18
Inconsistency in the application of Stand Your Ground laws has been exhibited in Florida. In the case involving George Zimmerman and Trayvon Martin, Martin, a 17 year old was returning to his father’s house following a visit to the local convenience store. Martin was not armed. Zimmerman, acting as a leader of the neighborhood watch program, was on the phone with local law enforcement while following Martin through the subdivision and a confrontation ensued. Zimmerman shot Martin and claimed self-defense. He was not arrested on the scene, but was arrested at a later date. The local chief of police attributed the delay in arrest to the absence of probably cause.19 In Hair v. State, Jimmy Ray Hair and Charles Harper were involved in a verbal altercation at a nightclub. Eventually, Hair claims he was a passenger in a vehicle, Harper reached in, and the two began to struggle. Hair pulled out his gun and shot Harper. When law enforcement arrived, Hair presented the claim of self defense. He was arrested at the scene and spent two years in jail while awaiting trial on a first degree murder charge. He was eventually granted immunity under Florida statute 776.032.20 While these two cases have similarities in which claims of self defense were presented at the scene, the Stand Your Ground law was applied in different manners. Zimmerman was allowed to remain free while the case was being investigated and his claim of self defense was being assessed while Hair was detained and spent two years in jail for murder charges from which he was eventually granted immunity. In both cases, facts concerning the course of events were disputed.21
The vagueness in the language and lack of clarity to provide detailed procedural guidelines also has the potential for intentional or unintentional abuse by law enforcement. Officers are trained to assess situations and make subjective conclusions concerning the available information. However, in cases where the Stand Your Ground law is applied, a single officer is afforded the sole discretion concerning the arrest and filing charges against the individual who is claiming immunity from prosecution. At issue with this is the ability for the officer to form an opinion concerning both the victim and the suspect which often affects the manner in which the case proceeds. In addition, by allowing officers to determine if claims of immunity are applicable in cases such as these, it effectively enables the investigating officer to act as the judge and jury as that individual is determining the fate of the suspect during the course of the investigation. It removes the ability for the case to be tried in a court of law as the officer’s decision often remains unchallenged.22
The primary concern with the Stand Your Ground laws and the lack of cohesive guidance is the possibility that these laws provide a manner in which an individual may perceive fear due to racial differences. Historically, people of color, regardless of their heritage, have experienced a vast array of discrimination. African-Americans have been victimized repeatedly, beginning with slavery, and the accepted perceptions of blacks was filled with fear and distrust. While other demographic groups have also experienced various forms of discrimination, African-Americans have arguably been subjected to victimization on a continuous basis throughout the history of America. A review of demographic data provided through an analysis performed by the Mayors Against Illegal Guns reflects an increase in justifiable homicides in which the victims were African-American. As of 2013, the number of incidents which were determined to be justifiable homicide increased from 0.5 per 100,000 people to 1.2 per 100,000 in situations where the victims were African-Americans.23 According to the Urban Institute, 34 percent of the situations where the shooter and victim were strangers and the shooter was white while the victim was black were determined to be justifiable homicide. Conversely, when the shooter was black and the victim was white, only 3.3 percent of the cases were deemed as justifiable homicide.24 These statistics are not reflective of the increase in incidents where the shooter was a member of law enforcement and the victim was black.
Studies that have been performed to provide insight into racial disparities indicate that black people are often perceived to have weapons by white people even when factors, such as attire and behaviors, are similar in nature.25 Whites often perceive blacks to be poor, dangerous, and lazy. This reflects the perception that blacks are inherently prone to descend into a life of crime due to the color of their skin.26 Stand Your Ground laws do not define what constitutes reasonable fear which provides the basis to claim immunity from prosecution.27
Stand Your Ground laws also have the potential to provide a method of discrimination against women. A case in Florida demonstrated this. In 2010, Marissa Alexander was in the comfort of her home, showing her husband, Rico Gray, pictures of their newborn child. Alexander went to the bathroom and Gray began looking through Alexander’s cell phone. After seeing messages Alexander had received from her ex-husband, Gray would not allow her to leave the bathroom. Alexander attempted to leave the premises once she escaped from the bathroom; however, when she got into the garage, she was unable to open the outer door. She grabbed her gun from her vehicle and returned to the house. Once inside, she fired a warning shot into the ceiling and did not fire a single shot at Gray. She was charged with three counts of aggravated assault even though Gray verified Alexander’s claims of continued physical and mental abuse and his threats of killing her if she ever cheated on him. Alexander attempted to claim immunity provided by the Stand Your Ground laws. Her claims were denied. At trial, the jury returned a guilty verdict following eleven minutes of deliberations and she was sentenced to twenty years in prison. During the appeal process, Alexander was granted a new trial on the basis that the jury received improper instructions concerning self-defense. However, the appeals judge confirmed that Alexander’s motion for immunity under the Stand Your Ground law was correct.28
Further implications of the Stand Your Ground laws indicate the potential to violate the principle established by the Universal Declaration of Human Rights (UDHR), which was adopted in 1948 by a unanimous vote by the General Assembly of the United Nations and establishes that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.”29 This principle was established to ensure the rights to life, equal protection, non-discrimination, due process and access to the courts, and the rights to family unity, and the best interests of a child.9 Stand Your Ground laws violate these principles on the basis of right to life as the very nature of these laws provide ample opportunity for an individual to kill another on the basis of fear without requiring any attempts of diffusing the situation or escaping dangerous situations and has the potential to cause an unnecessary death.30
In the Zimmerman case, many feel the use of Stand Your Ground was unjustified when taking into consideration facts that have been widely spread throughout media outlets and the Internet. Zimmerman willingly took it upon himself to follow Martin even though Martin was doing nothing more than walking through the neighborhood. Zimmerman was speaking with local law enforcement on his cell phone and was told to stop following Martin, yet he continued. Once the confrontation between the two began, the sequence of events is unclear as there were no witnesses physically present. However, Martin was mortally wounded and Zimmerman was eventually arrested and tried. In what is considered to a controversial verdict, he was acquitted by a jury of his peers.31
Alexander was denied the opportunity to claim immunity based on the Stand Your Ground laws based primarily on the retrieval of the gun from her vehicle that was parked in the garage. This was interpreted as Alexander lacking “genuine fear”, even though there was a documented history of abuse by Gray and at one point, Alexander had an order of protection from Gray.32 This is indicative of a violation of the right to equality and non-discrimination as disparity is also apparent in statistics concerning incidents in which the offender is female. In the review of 119 cases where the offender is a white female and the victim is black, regardless of gender, Stand Your Ground laws have been applied successfully in 13.5 percent of the cases. In 1,398 cases where the offender is a black female and the victim is also black, the rate of success is reduced by more than fifty percent and accounts for 5.7 percent of the cases. The 102 recorded cases in which the offender is a black female and the offender is white, this percentage drops to 2.9. Lastly, if the offender is a white female and the victim is also white, Stand Your Ground is applied as a successful defense in 2.6 percent as demonstrated in1,440 cases.33
While it should be apparent that the Stand Your Ground laws provide the guidelines for justifiable homicide, these laws are also flawed at best as clarification is not provided to provide adequate guidelines. The vagueness with which these laws were written ensures that. As a result of the Zimmerman case, many states are working to modify the existing laws to provide the necessary clarification to ensure that Stand Your Ground is not applied in a discriminatory manner against minorities.34 After all, America is the home of the free and guarantees equal rights for all. However, Stand Your Ground does not appear to uphold that premise while providing the basis for justified homicide, providing the suspect adheres to the preferred demographics.
1 National Urban League, Mayors Against Illegal Guns, VoteVets.org, Shoot First ‘Stand Your Ground’ Laws and Their Effect on Violent Crime and the Criminal Justice System, (2013).
5 ABA Nat. Task Force on Stand Your Ground Laws, Preliminary Report and Recommendations, (2014).
7 Khalil El Assaad, Stand Your Ground Laws: The Enshrinement of Racism Under the Guise of Self-Defense, NY Law School, Racial Justice Project (2014).
13 FLA. STAT. ANN. § 776.012, § 776.013, & § 776.031, West (2012).
14 FLA. STAT. ANN. § 776.032, West (2012).
15 Jennifer Randolph, How to Get Away with Murder: Criminal and Civil Immunity Provisions in “Stand Your Ground” Legislation, Seton Hall Law Review, Vol. 44:599 (2014).
17 Reagan v. Mallory, 429 Fed. App’x 918, 920, 11th Cir. (2011).
18 Jennifer Randolph, How to Get Away with Murder: Criminal and Civil Immunity Provisions in “Stand Your Ground” Legislation, Seton Hall Law Review, Vol. 44:599 (2014).
23 National Urban League, Mayors Against Illegal Guns, VoteVets.org, Shoot First ‘Stand Your Ground’ Laws and Their Effect on Violent Crime and the Criminal Justice System, (2013).
25 ABA Nat. Task Force on Stand Your Ground Laws, Preliminary Report and Recommendations, (2014).
28 Mary Anne Franks, Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women’s Syndrome, and Violence as Male Privilege, University of Miami School of Law (2014).
29 Ahmad Abuznaid, Caroline Bettinger-Lopez, Charlotte Cassel, and Meena Jagannath, “Stand Your Ground” Laws: International Human Rights Law Implications, University of Miami School of Law (2014).
34 ABA Nat. Task Force on Stand Your Ground Laws, Preliminary Report and Recommendations, (2014).