Politics & Policy

‘Stand Your Ground’ Continues to Gain Ground

(Reuters photo: Joshua Lott)
Iowa becomes the 35th state to adopt this sensible legal principle.

The phrase “stand your ground” entered popular parlance following the trial of George Zimmerman, who in 2013 was acquitted of murder charges after he successfully defended himself against a deadly-force attack by Trayvon Martin. Political activists whom today we would call the Black Lives Matter movement saw the Zimmerman trial as an opportunity to push their narrative of a racist and murderous white society intent on keeping down minorities generally and on killing young black men in particular.

Unfortunately for the activists, the facts of the Zimmerman case in no way supported their desired narrative, so they launched an intensive propaganda effort. The sheer scale of it is beyond the scope of this post, but those who are interested in an overview can look to my writings on the subject here.

A key component of the propaganda campaign was the effort to demonize the phrase “stand your ground.” The legal definition of it is rather innocuous, as I’ll explain below, so it became necessary to redefine the phrase to mean something nefarious.

The goal of the activists was to create in the public’s mind the misunderstanding that stand-your-ground law was a grant of, in effect, a racist “license to murder,” granted to angry white people eager to hunt down and kill minorities. To the extent that stand-your-ground could be marginalized, portrayed as a law unique to Florida and therefore an aberration, so much the better.

Enjoying the benefit of the complicity of most of the mainstream media and, in some cases, of their ignorance, the activists have achieved their propaganda goals. The reality of stand-your-ground is, of course, quite different from what they would have us think.

Stand-your-ground is not a legal aberration. At the time of the Zimmerman trial, only 18 states did not adhere to the “stand your ground” doctrine. The other 32 imposed no legal duty on victims of unlawful attacks to retreat before they could use deadly force in self-defense.

Stand-your-ground serves the interests of innocent victims of violent criminal predation — including minorities, who are disproportionately likely to be victims of violent crime.

Despite the years-long campaign to demonize the phrase “stand your ground,” the legal principle has only become more common. Since Zimmerman’s acquittal, three more states have joined the ranks of the stand-your-ground majority. Alaska adopted stand-your-ground in 2013, and Missouri did so early this year. And last week, Iowa’s governor signed stand-your-ground into law for the Hawkeye State. (The stand-your-ground portion of the signed legislation will not take actual effect until July 1, according to Iowa’s usual practice.)

Could it be that the large majority of states where stand-your-ground is the law — including, notably, California, which has been a stand-your-ground state since the 19th century — have all adopted a murderous and racist legal doctrine? Of course not. The reality is that stand-your-ground serves the interests of innocent victims of violent criminal predation — including, and perhaps especially, minorities, who are disproportionately likely to be victims of violent crime. This is apparent when one understands what stand-your-ground means and what it doesn’t mean.

The general model of the legal defense of self-defense is consistent across all 50 states. It can consist of up to five elements. They are cumulative: All required elements must be present or your claim of self-defense fails. They’re straightforward.

Innocence: You must not have been the aggressor or have provoked the fight.

Imminence: The threat against which you acted in self-defense must have been about to happen right now. It must not have been just some speculative future threat.

Proportionality: You must have used no more force than necessary.

Avoidance: You must take advantage of any safe avenue of retreat before using deadly force in defense against a deadly-force attack.

Reasonableness: Your conduct must have been both subjectively and objectively reasonable.

Note, however, that it is possible for one of these normally required elements to be waived as a matter of law. What stand-your-ground states have done is waive the element of avoidance from their self-defense requirements, leaving in place the remaining four elements. In contrast, the 15 “duty to retreat” states continue to impose the element of avoidance. They require all five elements.

In the 35 stand-your-ground states,you will not be put in jail for the rest of your life if other people decide after the fact, while sitting in safety and considering the matter in 20/20 hindsight, that some purportedly safe avenue of retreat was available to you. Under these exact same circumstances, the 15 duty-to-retreat states reserve the right to send you to jail, perhaps for life.

Understanding what stand-your-ground is makes clear what it isn’t. Stand-your-ground does not allow you to be the aggressor or to provoke a fight. It does not allow you to act in self-defense before the threat against you is imminent. It does not allow you to use more defensive force than necessary. And it does not allow you to act unreasonably in self-defense. Should you fail on any of those criteria, you lose your claim of self-defense, regardless of whether the state is stand-your-ground or duty-to-retreat.

In closing, I present a list of the 15 remaining duty-to-retreat states. May their number continue to dwindle: Arkansas, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Wyoming.

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

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