One of the most misunderstood—and maligned—elements of a self-defense shooting are the so-called “Stand Your Ground” laws. Any time a person is attacked by a criminal thug, and said thug gets killed in the process, many in the media will go on a rant about the evils of Stand Your Ground laws and how it enabled the victim to get away with murder. Yes, they typically make the victim the guilty party.
Stand Your Ground is in the headlines again recently due to a shooting in Florida. Short version of events:
- Guy A verbally accosts the girlfriend of Guy B while Guy B is in a convenience store.
- Guy B notices the escalating verbal confrontation, comes out of the store and body-checks A to the ground.
- A pulls a gun. B begins to back up. A shoots B in the chest, B dies.
I find a number of things troubling about this case; not the least of which the Sheriff of the county has said he cannot arrest and charge Guy A because of Stand Your Ground laws. This is ridiculous. It’s not even a Stand Your Ground case. It’s debatable that it’s a self-defense shooting, as we’ll get to in a moment. I find it disturbing that the Sheriff of this county doesn’t know how the law works.
There are five elements that must be in play to claim self-defense in a deadly force confrontation (it makes no difference how the deadly force is applied). Let’s consider them one at a time. We’ll not go fully in-depth on any of these because it would make this post a book. Thankfully, Andrew Branca already wrote the book, The Law of Self-Defense from which these points were drawn. If you carry a gun, or even own one for self protection, I highly recommend you read the book.
In order for a person to claim self-defense, the person must be innocent. This means the person claiming self-defense must not be the aggressor in a confrontation. If you are sitting on the couch and someone kicks down your door and barges in, you are innocent. If you are pumping gas and a guy pulls a gun on you and demands your keys, you are innocent. If a guy bumps into your wife in a bar and you knock him to the ground, you are not innocent when he gets back up and comes at you. In the above case, innocence is murky at best.
In order for a self-defense claim to be valid, the threat must be imminent, as in happening right now. Threats in the future are not imminent. If someone threatens to go get a gun and kill you, and then leaves to do so, you can’t shoot them as they leave. That is not an imminent threat. If someone assaults you, then leaves, you cannot go after them. The event is now in the past; it is no longer imminent.
The concept of imminence is based on Ability, Opportunity and Jeopardy. First, the attacker must have the ability to hurt me. If my attacker is a 6-year old, we probably don’t have ability. Unless of course he’s pointing an AK at me. Next, the able attacker must have the opportunity to hurt me. If he is close and has a gun, he has opportunity. If he is close and has a knife, he has opportunity. If he’s standing across the street with a baseball bat yelling obscenities at me, he may be able, but lacks opportunity—at least for the moment.
Finally, there is jeopardy. Jeopardy exists when someone has both opportunity and ability and intends to use both. If you and I are having lunch, there is an excellent chance I am armed, and I am close to you. However, you are not in jeopardy, so imminence is not in play. In the Florida case, imminence does not seem to be a factor.
Basically, this means you cannot use more force than your attacker used against you. If I’m walking down the street and someone is offended by my NRA hat and steals my hat, I am not justified in shooting him. Deadly force is not allowed against a non-deadly force threat. This is where Guy A above is on shaky ground in my view. Being shoved to the ground is unpleasant, but not likely deadly. If Guy B went down with him and began beating the crap out of Guy A, then it’s a different story. But according to reports, B simply knocked A to the ground.
Now, if B came out of the store waving a gun and knocked A to the ground, A has suffered a deadly force assault and would be justified in drawing and shooting. But there must be a deadly force threat to be able to claim self-defense.
This is where it gets sticky. In sixteen states, you have a “Duty to Retreat” before you can use deadly force, if it is safe to do so. The problem lies with “if it is safe to do so.” Many states—thirty-four—have passed so-called “Stand Your Ground” laws to prevent overly aggressive prosecutors trying to make their bones by sending good people to prison for defending themselves.
It’s very easy to sit in an air conditioned office and claim that the defender could have just “run away” when she was attacked. The prosecutor wasn’t there, and neither were those in the jury. But it’s easy to fabricate all manner of escape plans when you have days, weeks and months to come up with them. But when you are violently attacked, you have literally seconds to do something or face grave bodily injury or death.
Most reasonable people would agree that a single mom finishing up a late night in the office should not go to jail for 30 years because she shot and killed the criminal who attacked her as she walked to her car in the parking garage. This is what Stand Your Ground provides for. It’s not a loophole to “get away with murder,” or a “license to kill.” It simply removes the requirement for someone to flee a violent attack before using deadly force. However—and this is important—all of the other four elements of self-defense must be in place for the self-defense claim to be valid.
In the above case, Guy A had no duty to retreat—he was already on the ground. Where else would he go? And, based on the details as I understand them, he fails on Imminence, Proportionality, Reasonableness and possibly Innocence. It’s really hard to see how Stand Your Ground applies in this case.
Andrew Branca calls Reasonableness the umbrella that covers all the other four elements of a self-defense claim. This gets a bit technical (and I really encourage you to get the book), but there are two standards of reasonableness; Objective Reasonableness and Subjective Reasonableness.
In the Objective Reasonableness test, your actions will be compared to a hypothetical, reasonable person. Would this reasonable person act in the manner that you did? Let’s say you’re sitting on your couch and two people brandishing weapons kick down your door and enter wearing ski masks. Because you take your security seriously, you draw the handgun from your belt holster, fire two rounds into each attacker, ending the attack. Would a reasonable person have acted in that way? It’s pretty clear to any reasonable person that those guys weren’t there to sell you a magazine subscription. No one breaks into a house wearing ski masks and carrying guns without evil intent. Therefore it’s perfectly reasonable that you shot them.
Subjective Reasonableness is a little trickier. Whereas Objective Reasonableness is based on someone else—the Reasonable Man—Subjective Reasonableness is based on what you believed at the time. Did you believe you were actually in fear for your life and thus your actions were reasonable? This often comes into play when a victim shoots an unarmed attacker. Initially, this might look like it fails the proportionality test, but if the attacker is a 6’-5”, 275 pound muscle bound graduate of the Federal prison system and the victim is a 5’-2” 95 pound woman, it’s very easy to see how she could genuinely be in fear for her life and shoot.
That’s actually a pretty cut and dried case; but let’s say I was the victim. I’m a guy, and I’m 5’-9”, maybe 180, but I’m certainly not going to be much of a match for our hardened criminal. I could maybe outrun him, but if he catches me, he’d beat me to a pulp. Subjectively, it would be reasonably for me to use deadly force. But again, all the other elements must be in place.
Why Write This Post?
I decided to write this post because nearly every article I see on the above Florida case is very sloppy journalism. It’s not a secret that most journalists fall to the left of center, and many oppose private firearm ownership. These biases make them lazy and they don’t generally bother to even question it when someone throws around “Stand Your Ground.”
My hope is that there might be a few people who previously though Stand Your Ground provisions were bad and should be repealed prior to reading this. You probably had no idea what SYG even meant, because it is so rarely reported properly. Most of the reporting I see on the subject borders on criminal. They make the criminal attacker the “victim,” and demonize the actual victim. They’ll report that SYG laws allow people to get away with murder. This is absurd. But the truth doesn’t seem to matter when there’s an agenda to advance.
Retreat If At All Possible
I’ll leave you with this—if you ever find yourself in a potential deadly force encounter and you have even the slightest chance to get away from it, do it! It has been said that the best gunfight is the one you don’t have to be in. Even if it’s justified, shooting someone will alter the course of your life forever. If there is any way you can get out of there without pulling the trigger, that’s a win. Many times, simply producing your gun will set the actual bad guy to flight (of course, you don’t pull the gun out unless you have every intention of using it—hopefully you won’t have to). If that’s the case, retreat to a safe place and call the police. If you don’t have to shoot, don’t.