Law & the Courts

The Mainstream Media Gets ‘Stand Your Ground’ Laws Wrong — Again

Target practice at a gun range in Bridgeton, Mo., 2014 (Reuters photo: Jim Young)
Why is it so hard for reporters to understand basic legal concepts?

I’ll give the mainstream media this much: It’s absolutely consistent in its inability to understand or explain use-of-force law generally and “Stand-Your-Ground” laws in particular.

The most recent example comes out of Tulsa, Okla., where this past Monday a 23-year-old staying at his father’s home encountered three armed assailants who had forcibly entered by kicking in the back door.

Unfortunately for these home invaders, the 23-year-old possessed a loaded AR-15 rifle, and he knew how to use it. All three suspects ended up dead. A fourth, the getaway driver, would later turn herself into police. The shooter immediately called 911 to report the incident, a call which is remarkable in its own right. (Seriously, go listen to it.)

As seems inevitable in any media coverage of a self-defense shooting, news reports of the incident routinely made reference to “Stand-Your-Ground”:

“The homeowner’s son who shot them has not been arrested while police investigate whether he acted in self-defense under the state’s “Stand Your Ground” law.” — CBS News

“[Assistant District Attorney Jack ] Thorp told reporters that investigators will help his office determine whether Oklahoma’s “Stand Your Ground” law applies in the case of the triple shooting.” — Fox News

“Killing of 3 teens during burglary may test Oklahoma ’stand your ground’ law” — Yahoo News

As also seems inevitable, these references to “Stand Your Ground” laws betrayed a shocking inability to understand what such laws actually mean.

The first thing to know about “Stand Your Ground” is that traditional self-defense law often imposed a legal duty to retreat before using defensive force if a safe avenue of retreat was available. “Stand Your Ground” serves to relieve a defender of that duty to retreat in cases where it would previously have existed — and that is all that “Stand Your Ground” does.

This means, of course, that in circumstances in which no legal duty to retreat exists, “Stand Your Ground” is entirely irrelevant, because no one needs to be relieved of a legal duty he never had in the first place.

If no safe avenue of retreat is available, then there is no legal duty to retreat, even in the absence of a “Stand Your Ground” law. If there exists a safe avenue of retreat for the defender, but that path of retreat is not safe for a person accompanying the defender (e.g. a small child or elderly parent), the defender is not required to leave the other behind, and thus there is no legal duty to retreat, again rendering any “Stand Your Ground” law irrelevant.

And then there is the universal exception to any legal duty to retreat: the so-called Castle Doctrine, which holds that even in cases when one would otherwise have a legal duty to retreat, that legal duty doesn’t apply if they are in their “castle” — meaning their home and sometimes their business or vehicle — and they are facing armed intruders who have forcibly entered. In such a home-invasion, there is no legal duty to retreat, so “Stand Your Ground” laws do not apply.

This last circumstance is precisely what that 23-year-old Oklahoman faced on Monday, and there is no state in the country where he would have had a legal duty to retreat, meaning his actions were not governed by “Stand Your Ground” law. Instead, he found himself in a very straightforward defense of dwelling scenario. Under Oklahoma law, as in many states, a home defender in this situation is also favored by the creation of certain legal presumptions that strengthen the legal defense for their use of force.

The relevant Oklahoma law is easily found in Oklahoma Statute §1289.25, “Physical or Deadly Force Against Intruder,” which creates two legal presumptions in defense of dwelling cases.

The first is that the defender had a reasonable fear of death or grave bodily harm:

“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 defensive force that is intended or likely to cause death or great bodily harm to another if . . . the person against whom the defensive force was used . . . had unlawfully and forcibly entered, a dwelling, residence, occupied vehicle, or a place of business . . . ”

The second legal presumption created by the statute is that the home invader intends to commit an act of violence:

“A person who unlawfully and by force enters or attempts to enter the dwelling, residence, occupied vehicle of another person, or a place of business is presumed to be doing so with the intent to commit an unlawful act involving force or violence.”

It is true that §1289.25 elsewhere contains references to “Stand Your Ground,” self-defense immunity, and reimbursement of a defender’s legal expenses in a civil suit. But each of these is an entirely distinct legal concept, and may or may not apply to a particular defensive force event depending on the facts of the case. As explained above, the statute’s “Stand Your Ground” provisions don’t remotely apply to the Tulsa shooting, as the long-standing provisions of the Castle Doctrine already relieved the defender of any legal duty to retreat even if such a duty existed under Oklahoma law.

In short, this was a defense of dwelling scenario which raised a legal presumption of reasonable fear on the part of the defender and of intent to commit violence on the part of the home invader. “Stand Your Ground” has nothing whatsoever to do with this case — but no one should hold their breath waiting for the mainstream media to realize it.

— Andrew F. Branca is an attorney and the author of The Law of Self Defense: The Indispensable Guide for the Armed Citizen.

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