New York Law School

Stand Your Ground Laws: The Enshrinement of Racism Under the Guise of Self-Defense

The highly publicized murder trials of George Zimmerman and Michael Dunn have brought Stand Your Ground (SYG) laws to the forefront of public debate. In 2005, Florida was the first state to pass a SYG statute,[1] and two dozen other states have since followed suit. But the black and white nature of these laws had been largely overlooked by the public until the Florida killings of two teenage boys. The killings of Trayvon Martin and Jordan Davis are merely illustrative of how SYG laws have institutionally legitimized a fear rooted in racism.

Perhaps the most controversial aspect of SYG laws is the standard employed to determine whether a homicide is justified. The right created by SYG laws justifies the use of deadly force upon mere reasonable fear or perception of imminent danger.[2] There is no reason for why states should not provide some guidance to the factfinder as to what constitutes reasonable fear or perception of danger, if they are to create such a right at all. As Rev. Markel Hutchins aptly noted, “[f]ear, is oftentimes, based on one’s own bias, so when you have public policy that, literally lends itself to people being able to commit crimes or shootings under the color of law, because they’re reasonably afraid, it makes a bad public policy and puts the constitutional rights of so many people around the country in jeopardy.”[3] In other words, a bare standard of reasonable fear without any definition or specification of the circumstances that would warrant such a finding is effectively standardless. Given the widely held stereotype that young black men are threatening, a standard of reasonable fear justifies racially motivated killings under the guise of self defense. As a case in point: George Zimmerman escaped conviction for the murder of Trayvon Martin because the jury found that he possessed a reasonable fear of imminent danger at the time he killed his unarmed albeit black victim.[4]

Diluting an already porous standard, recent amendments to SYG laws place the burden of proof on the deceased. A 2012 amendment to Florida’s SYG law, already mirrored by other SYG jurisdictions, creates a presumption of reasonable fear of “death or great bodily harm.”[5] This means that the surviving party is presumed to be acting in self-defense. It is therefore up to the homicide victim to prove otherwise. But, of course, the presumption cannot meaningfully be rebutted because the party likely to possess the relevant evidence is at that point dead, and police officers and prosecutors, however well-intentioned, have only the “justifiable” killer’s word to go off of.

Proponents defend SYG laws on three principal grounds: (1) SYG laws do no more than codify the common law doctrine of self-defense; (2) SYG laws deter the commission of violent felonies such as burglary, robbery and aggravated assault; and (3) the killings of Trayvon Martin and Jordan Davis cannot be attributed to SYG laws because they are a function of the criminal process in general.

First, SYG laws greatly expand an individual’s right to use deadly force. The claim that the law merely codifies the common law doctrine of self-defense is baseless. By codifying a right to stand one’s ground based upon mere reasonable fear, SYG laws permit individuals to use deadly force without first requiring that one attempts to escape or avoid the perceived danger, and without regard to the proportionality of the response. At common law, by contrast, the right to self-defense strictly limits the use of deadly force to situations in which the defendant reasonably believed that the use of such force is “necessary to prevent imminent death or great bodily harm to himself or herself or another.”[6] Accordingly, before the passage of SYG laws, the common law doctrine of retreat precluded individuals from using deadly force if a perceived risk of harm or death could reasonably be avoided by retreat.[7] At common law, the “Castle doctrine” qualified the duty to retreat as one was under no obligation to retreat if present in his own house. But unless one was attacked in his own dwelling “by a person not having an equal right to be there,” one had a duty to retreat as far as one could before any defensive action may be deemed justified.[8] The scope of SYG laws is not so limited to the home insofar as the right to stand one’s ground may be exercised wherever one is lawfully present.[9] SYG thus abrogates the doctrine of retreat, which pre-dates the United States Constitution.

Second, the recent upsurge in Stand Your Ground (SYG) laws correlates with an increase in justifiable homicides and with no noticeable decrease in violent felonies. Studies have shown that the nationwide passage of SYG laws has been wholly ineffective in deterring the very crimes that those laws were thought to deter, namely burglary, robbery and aggravated assault. SYG laws have actually worsened the overall crime rate. The laws have been credited with an 8% increase in homicide rates, which effectively translates into 600 additional homicides every year across states with SYG statutes.[10] In Florida, for instance, the annual rate of justifiable homicides has tripled since 2005, the year Florida enacted its SYG statute.[11] Other SYG jurisdictions have witnessed comparable increases, FBI statistics reveal. Thus, there is a proven correlation between SYG laws and a higher incidence of justifiable homicides.

Third, proponents downplay the effect of SYG laws by claiming that those homicides deemed justifiable at the end of a murder trial, like the killings of Trayvon Martin and Jordan Davis, are not actually defended under SYG statutes, which would require a separate hearing to precede any criminal trial.[12] SYG Laws, the argument runs, had nothing to do with the acquittal of George Zimmerman and Michael Dunn because both defendants were acquitted at trial by the jury, and not in a separate pre-trial proceeding. However, this claim underestimates the nature and scope of SYG laws; particularly how these laws permeate the trial phase of all criminal homicides, whether or not the defendant invokes their statutory immunity. In other words, it is irrelevant whether or not the homicide defendant invokes the stand your ground defense because the mere presence of a SYG statute in the state’s penal code fundamentally changes the prosecution’s burden of proof in every murder trial where the killing is claimed to be justified.

Whether a state has enacted a SYG statute determines which of two instructions the jury will receive. Instead of getting the following instruction…

“The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force. The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force.”

. . . the jury in George Zimmerman’s case and Michael Dunn’s received this instruction:

“If [the defendant] was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.”[13]

Thus, under the instruction the jury receives in non-SYG jurisdictions, the definition of self-defense excludes the willful taking of human life if the killing could have been avoided, even if the victim was the initial aggressor. In SYG jurisdictions, on the other hand, a killing is justified as self-defense so long as the killer, in interacting with his victim, experienced a reasonable fear or perception of danger; whatever that means. Thus, even when the defendant is not directly immunized from liability under the state’s SYG statute, the law still shapes the legal framework within which the jury deliberates and ultimately renders its verdict. Put simply, SYG laws justify otherwise culpable killings. This arguably explains why states with SYG laws on the books have witnessed a substantial increase in the rate of justifiable homicides post-enactment. That increase has been anything but racially neutral.

The rate of White-on-Black justifiable homicides increased drastically from 2005 to 2010, the time period in which two dozen states passed SYG laws.[14] Numerous studies show that in those states with SYG laws, homicides committed by whites where the victim is black are far more likely to be deemed justified than homicides committed by blacks where the victim is white.[15] Indeed, one study found that in SYG jurisdictions, defendants are 354% more likely to have their killing deemed justified if their victim is black than if their victim were white.[16] Whereas in non-SYG states, that percentage is halved. In light of these disturbing figures, the U.S. Civil Rights Commission has initiated the first official investigation into the racially skewed operation of SYG laws.[17]

Moreover, even when the victim is shot while attempting to flee, the homicide is no less justified so long as the shooter, portrayed as defender, possessed a reasonable fear. As one court put it, “[t]he statute makes no exception from the immunity when the victim is in retreat at the time the defensive force is employed.”[18] Pursuant to the FBI’s Supplemental Homicide Report (SHR), which accounts for all reported homicides in the country, the type of killing with the highest probability of being found justified is “a single, White civilian handgun shooter who is a stranger to (and older than) the Black victim.”[19]

Accordingly, SYG laws have in operation, if not by design, allowed more Whites to kill Blacks with impunity. Under a standard as porous as “reasonable fear,” that result seems pre-ordained. While race may not, as a constitutional matter, factor into the most commonplace of government decisions, let alone the determination of which killings are justifiable, SYG laws have simply transferred that decision from the courtroom to the streets, evading the scrutiny of the Equal Protection Clause in the process. In a society where young black men are often perceived as dangerous solely for being black, state legislatures should not be able to brush off a racially discriminatory effect as an unintended side effect. As long as an individual’s skin color continues to inform the public’s perception of “danger,” SYG laws are bound to legitimate the killing of unarmed, at times even fleeing young black men.

The United States, far from a post-racial world, is devolving under the administration of SYG laws. In a very real sense, what those laws do is endow Whites with lethal power to protect white space. Is it a mere coincidence that those states with SYG laws are the very same states whose history is tarnished by slavery, Jim Crow laws, and Black lynchings? One certainly cannot blame Rinku Sen for lamenting that “fighting ‘stand your ground’ laws [has become] the anti-lynching movement of our time.”[20]

 

[1] Fla. Stat. § 776.032 (2005).

 

[2] Peterson v. State, 983 So. 2d 27, 29 (Fla. Dist. Ct. App. 1st Dist. 2008).

 

[3] Top Criminal Justice Degrees, The Black and White of Stand Your Ground, http://www.topcriminaljusticedegrees.org/stand-your-ground/ (last visited June 18, 2014).

 

[4] Jim Wallis, Stand Your Ground Has No Moral Ground, Sojourners, http://sojo.net/blogs/2014/02/18/stand-your-ground-has-no-moral-ground.

 

[5] Fla. Stat. § 776.013(1)(a) (2012).

 

[6] Fla. Stat. § 776.012 (2004).

 

[7] Cannon v. State, 464 So. 2d 149, 150 (Fla. Dist. Ct. App. 1985).

 

[8] Baker v. State, 506 So. 2d 1056, 1059 (Fla. Dist. Ct. App. 1987).

 

[9] Fla. Stat. § 776.013(3) (2005).

 

[10] Cheng Cheng & Mark Hoekstra, Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Expansions to Castle Doctrine, 42 pp., presented in the Testimony of Mark Hoekstra, Associate Professor of Economics, Texas A&M University, Before the American Bar Association National Task Force on Stand Your Ground Laws, February 8, 2013, available at http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf.

 

[11] Mark Fisher & Dan Eggen, “Stand Your Ground” Laws Coincide with Jump in Justifiable-Homicide Cases, Wash. Post (Apr. 7, 2012), http://www.washingtonpost.com/national/stand-your-ground-laws-coincide-with-jump-in-justifiable-homicide-cases/2012/04/07/gIQAS2v51S_story.html.

 

[12] Erin Fuchs, Don’t Blame The George Zimmerman Verdict On “Stand Your Ground, Business Insider, http://www.businessinsider.com/stand-your-ground-not-used-in-florida-2013-7.

 

[13] Dan Gelber, Florida Defense Law Change Encourages Recklessness, SunSentinel (July 17, 2013), http://articles.sun-sentinel.com/2013-07-17/news/fl-dgcol-zimmerman-trayvon-oped0717-20130717_1_zimmerman-jury-ground-law-george-zimmerman.

 

[14] John K. Norman, Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report Data, Urban Institute, July 2013, 14 pp., available at http://www.urban.org/UploadedPDF/412873-stand-your-ground.pdf.

 

[15] Kris Hundley et al., Florida “stand your ground” law yields some shocking outcomes depending on how law is applied, Tampa Bay Times (last modified February 17, 2013 1:09 PM), http://www.tampabay.com/news/publicsafety/crime/florida-stand-your-ground-law-yields-some-shocking-outcomes-depending-on/1233133

 

[16] Sarah Childress, Is There Racial Bias in “Stand Your Ground” Laws?, Pbs.org (July 31, 2012, 12:40 PM), http://www.pbs.org/wgbh/pages/frontline/criminal-justice/is-there-racial-bias-in-stand-your-ground-laws/.

 

 

[17] Nicole Flatow, Civil Rights Commission Approves Rare Investigation To Probe Stand Your Ground’s Racial Bias, ThinkProgress (June 3, 2013, 9:00 AM), http://thinkprogress.org/justice/2013/06/03/2088491/civil-rights-commission-approves-rare-investigation-to-probe-stand-your-grounds-racial-bias/.

 

 

[18] Hair v State, 17 So. 3d 804, 806 (Fla. Dist. Ct. App. 1st Dist. 2009).

 

[19] John Roman & Mitchell Downey, Stand Your Ground Laws and Miscarriages of Justice, Urban Institute (Mar. 29, 2012), http://blog.metrotrends.org/2012/03/stand-ground-laws-miscarriages-justice/

 

[20] Rinku Sen, Jordan Davis Murder Trial, Stand Your Ground and the Anti-lynching Movement of Our Time, WordPress.com (Feb. 17 2014), http://millermps.wordpress.com/2014/02/17/jordan-davis-murder-trial-stand-your-ground-and-the-anti-lynching-movement-of-our-time/.

 

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