On Monday, the prestigious Journal of the American Medical Association (JAMA) published a paper on American self-defense law so fundamentally flawed that it is hard to view its publication as anything other than an act of propaganda.
The paper’s title describes its purported purpose: “Evaluating the Impact of Florida’s ‘Stand Your Ground’ Self-defense Law on Homicide and Suicide by Firearm” — and its implicit conclusion is that “Stand Your Ground” is bad public policy because it fosters unlawful killing. Indeed, one of the paper’s authors, Antonio Gasparrini, makes this conclusion explicit in telling the U.K.’s Daily Mail that “this study highlights how Stand Your Ground is likely to be a cause of the rise in Florida murders” (emphasis added).
First, the paper conflates “homicide” and “murder,” and thus cannot result in valid findings with respect to “murder” in particular or with public safety in general. Second, the study contrasts Florida’s Stand Your Ground law with a set of four purportedly non–Stand Your Ground states. One of the four states in the control set, however, routinely applies Stand Your Ground doctrine in much the same manner as does Florida. This failure of methodology substantively invalidates the paper’s findings, and should have been identified in peer review long before publication in JAMA. (The widespread defects in the peer-review process of even, or perhaps especially, premier scientific journals are another subject entirely).
‘Homicide’ and ‘Murder’ Are Not Synonyms
“Homicide” merely means the killing of a person by a person. “Murder” refers to the subset of homicides that are unlawful. This distinction is vital for public-policy discussion, because homicides that do not qualify as murder are not only lawful but are in many cases a social good. A few hypotheticals illustrate clearly why this is so.
An intended rape victim who shoots and kills her rapist to stop his sexual assault has committed a homicide. She has not, however, committed a murder. Her homicide of the rapist is lawful self-defense and by any reasonable moral standard is preferable to the alternative of compelling her to allow herself to be raped. Similarly, a homeowner who shoots and kills an armed felony intruder has committed a homicide but not a murder. In both cases, the killings qualify as lawful self-defense.
By failing to distinguish between ‘murder’ and ‘homicide,’ the JAMA paper conflates unlawful and lawful killings.
As a final example, and to draw an analogy to a recent well-publicized event, if a lawfully armed citizen shoots and kills a terrorist ruthlessly gunning down unarmed gay people in a Florida nightclub, he has stopped a murderous act of terrorism, not committed a murder. This to-be-wished-for outcome was prevented at the Pulse massacre by laws that prohibit firearms in locations that serve alcohol, a prohibition ignored by ISIS-allegiant Omar Mateen. (Criminals ignoring the law is a common mechanism of failure for preemptive gun-control laws generally, and is perhaps a matter worthy for a paper published in JAMA.)
By failing to distinguish between “murder” and “homicide,” the JAMA paper conflates unlawful and lawful killings. Indeed, it is quite possible that fully 100 percent of the increase in Florida homicides, which the paper attributes to the Stand Your Ground law, were in fact lawful acts of self-defense, the alternative to which would have been the murder, maiming, and rape of innocent victims. If so, the effect of the Stand Your Ground law has been to reduce the murder, maiming, and rape of innocent victims, arguably the very social good intended by its passage. For some reason, however, I see a remarkable absence of press coverage of this paper headlined, “Stand Your Ground Law Shown to Safeguard Innocent Life.” Odd, that.
It’s Hard to Effectively Study What You Don’t Actually Understand
The second fundamental error in this paper is that the authors have a basic ignorance of the legal principles they are purporting to study. This is perhaps not surprising given that their listed associated academic departments include “Social Policy and Intervention,” “Hygiene and Tropical Medicine,” and “Biostatistics and Epidemiology,” but nothing actually related to law. (Incidentally, I extend an open invitation to researchers desiring insight on these legal issues.)
A key facet of the paper’s methodology is a contrast of Stand Your Ground in Florida to four purportedly non–Stand Your Ground states: New York, New Jersey, Ohio, and Virginia. Although it is true that New York, New Jersey, and Ohio impose a legal duty to retreat on all defenders who have the safe means to do so before they are permitted to resort to deadly force in self-defense, this is not the case for Virginia.
In fact, Virginia takes a unique approach on whether a defender has a legal duty to retreat or has the right to stand his ground. Under Virginia law, a defender who has made a “contribution to the affray” — that is, someone who is not an entirely innocent party in the conflict — does indeed have a legal duty to retreat before using deadly force in self-defense. In that subset of self-defense scenarios, Virginia acts much like the duty-to-retreat states of New York, New Jersey, and Ohio.
A defender who has not made a “contribution to the affray,” however — someone who is in every sense the innocent victim of an act of criminal predation — has absolutely no legal duty under Virginia law to retreat before they may use deadly force in self-defense. Because of this, to include Virginia among the set of non–Stand Your Ground states used as a contrast for Florida is to fundamentally undermine the study’s methodological validity on this point.
My reading of the paper’s methodology suggests that the authors fell into this error because they mistakenly believe that America’s Stand Your Ground laws are to be found only in statutes, the laws created by the state legislatures. This is a grave error. America also recognizes case law, the laws created by decisions of courts. That this is the cause of the authors’ error here is suggested by the fact that the paper claims that Stand Your Ground doctrine is the law in a minority of 23 of the 50 states. In fact, 35 states impose no legal duty on a defender to retreat. The states the authors missed largely enacted Stand Your Ground not through statute but through case law, and generally many decades before Florida adopted its Stand Your Ground statute in 2005.
For example, California instructs its juries in self-defense cases that a defender may not only stand his ground, he may even pursue his attacker if necessary for his safety. This position makes California one of the most aggressive Stand Your Ground states in America, and its stance is based on its case law dating back to 1898. At the same time, California has not a single Stand Your Ground statute on the books. It is noteworthy that the authors erroneously fail to include California as among the Stand Your Ground states.
This second error strongly suggests that not only did the authors either not understand or choose to conceal the vital distinction between “murder” and “homicide,” they fundamentally don’t understand how the legal doctrine of Stand Your Ground is implemented or created in American law.
Research or Propaganda?
In closing, I note that in the third-to-last sentence of the paper the authors write: “Our study examined the effect of the Florida law on homicide and homicide by firearm, not on crime and public safety.” Wait, what? And you waited until the very end of the paper to explicitly disclose this highly relevant fact?
Then, pray tell, what was the purpose of writing the paper in the first place? Indeed, the same question must be raised with respect to JAMA’s decision to publish the paper. If the paper is not informative or useful for public-policy purposes, given that it explicitly concedes that it does not address “crime and public safety,” then exactly what is its purpose? Surely the purpose could not have been to serve merely as propagandistic raw materials for anti–Stand Your Ground headlines by a naïve popular press eager to uncritically accept JAMA’s prestige? Surely not.
The paper’s conflation of murder and homicide and its basic ignorance of the legal principles in question are only the beginning of its authors’ errors. The two described above, however, should be more than sufficient to compel JAMA to immediately retract this paper because of its fundamental flaws in methodology and frank lack of utility.
— Andrew F. Branca is an attorney and the author of The Law of Self Defense: The Indispensable Guide for the Armed Citizen.