Response paper

Are “Stand Your Ground” s an Effective way to Stop Violent Crime? by Hickey
59

Selected, Edited, and with Issue Framing Material by: Thomas J. Hickey, State
University of New York at Cobleskill

ISSUE

Are “Stand Your Ground” s an Effective Way
to Stop Violent Crime?

YES: Jorge Amselle, from “Why We Need ‘Stand Your Ground’ s,” The Daily Caller
(2014) NO: James Beckman, from “The Problem with Stand Your Ground s: A
Proven Detriment to Public Safety,” Original Work (2016)

| Learning Outcomes
After reading this issue, you will be able to:
• Discuss the role of the National Rifle Association (NRA) in supporting the
passage of “stand your
ground” laws in the United States.
• Discuss the early origins of “self-defense” laws and whether they are consistent
with the adoption of
“stand your ground” statutes.
• Discuss the “duty to retreat” doctrine.
• Present several arguments favoring the development of “stand your ground”
laws in the United States.
• How do “stand your ground” laws increase the rate of justifiable homicide findings in criminal
cases?
• Present several arguments opposing the development of “stand your ground” laws in
the United States.
• Discuss how “stand your ground” laws increase the rate of justifiable homicide findings in
criminal
cases.

• Discuss whether “stand your ground” laws do more harm than good to public safety.

ISSUE SUMMARY

YES: Writer and firearms instructor Jorge Amselle asserts that “stand your ground” laws are
needed for self-defense in the United States. Such laws provide those who use weapons
for self-defense and defense of personal property with an effective legal defense in these
cases. NO: Professor and author James Beckman, in contrast, argues that “stand your
ground” laws are an anachro nism in modern society. Moreover, Beckman believes that these
laws encourage situations wherein individu als will choose to escalate potentially violent
encounters rather than diffusing them.

1 he self-defense doctrine has a long history in the Anglo American legal tradition. Our courts
have held consistently that a person has a right to use self-defense to prevent an impending
attack on him/herself, in defense of personal property, or in defense of others. Black’s
Dictionary (1979), a classic legal treatise, defines self-defense as follows:
assailant. The right of a man to repel force by force even to the taking of life in defense of his
person, property, or habitation, or of a member of his family, against anyone who manifests, intends,
attempts or endeavors by violence of surprise, to commit a forcible felony,

An excuse for the use of force in resisting an attack on the person, and especially for killing an
To establish the traditional defense, a defendant must show that he/she did not provoke the incident
and that there must be imminent peril. It also required the

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Taking Sides: Clashing Views in Crime and Criminology, 13/e

The

person using self-defense to demonstrate that there was of physical, sexual, and
psychological abuse, and thus not no convenient or reasonable means of escape.
Moreover, murder, but only manslaughter. Their first trial resulted in a if an injury was
done by a defendant in self-defense, hel hung jury. The jury was unable to agree on a
degree of hom she could not be held liable in a criminal case or a result-
icide, landing all over the board with votes for first degree ing civil action. (Id.
1220-1221). The case law also makes murder, second degree murder, voluntary
manslaughter, clear that it is never reasonable to use deadly force in a dis- and
involuntary manslaughter. (Menendez v. Ca Terhune, proportionate manner-one is
not justified to use deadly 422 F.2d 1012). force to repel a non-deadly attack.
At their second murder trial (double jeopardy does There are two forms of legal
self-defense claims. Imper- not apply if a first trial results in a hung jury mistrial),
where fect self-defense occurs when someone kills another person they raised the
same self-defense claim, the Menendez and he/she honestly believed that
deadly force was needed brothers were convicted of first degree
premeditated to thwart the attack; however, it later turns out that the murder and
were sentenced to life imprisonment without belief that deadly force was necessary was
not a reasonable the possibility of parole. Their convictions and sentences one. For example,

suppose that you had recently received were later affirmed by the California Supreme
Court and online death threats due to your political activism and their petition for
post-conviction relief was denied by the someone walks toward you carrying a
blue plastic sledge U.S. Court of Appeals (9th Cir.). hammer that you honestly
believe is a real one. Suppose The Menendez case illustrates the difficulty of estab
further that he/she swings the hammer in your direc- lishing a self-defense claim in a
criminal trial. It also illus tion and you respond by shooting the individual with a
trates the highly subjective nature of these cases: The jury .9 mm handgun that
was concealed in your jacket and the at the first trial could not agree on a verdict:
Apparently assailant dies from the gunshot. If at trial you bring a self- while some
jurors did not believe the brothers’ self-defense defense claim, the question that
will arise is whether your claims, and voted to convict them of first degree
murder, honest belief that the hammer swinging individual’s con- others accepted their
claims and believed that voluntary duct actually threatened your life was a
reasonable one. If or involuntary manslaughter were the more appropriate the
court concludes that it was, the claim of self-defense verdicts. would be a
complete defense. If not, however, it could still Self-defense cases, then, often
present challenging mitigate your degree of criminal responsibility. In fact, in factual
issues. As noted earlier, in order to establish a self these circumstances it may well
result in the reduction of defense case in some states a defendant must show that
charges from murder to a lesser degree of homicide, such there was no convenient or
reasonable means to avoid a as manslaughter.
confrontation, a so-called “duty to retreat.” Other states, A claim of perfect
self-defense is established, in con- such as Florida, however, have eliminated the “duty
to trast, when a defendant’s belief that his/her life is threat- retreat.” Florida’s “Justifiable
Use of Force” statute (Title ened by an attacker is an objectively reasonable one.
For XLVI, Chapter 776.013) provides: example, if someone confronts you with a
real pistol and demands your wallet and threatens your life, responding
A person is presumed to have held a reasonable with deadly force may well be determined
to be an objec
fear of imminent peril of death or great bod

ily harm to himself or herself or another when tively reasonable course of action. In such
circumstances,
using or threatening to use defensive force that is a self-defense claim may establish a
complete defense and
intended or likely to cause death or great bodily no criminal (or even civil) charges would arise.
harm to another if: . . . (b) The person who uses An additional example may help to clarify

the nature
or threatens to use defensive force knew or had of self-defense claims in the real world. In a
now-famous reason to believe.., that an unlawful and forcible case that employed a
self-defense claim to murder charges act was occurring or had occurred. in the State of
California, Erik and Lyle Menendez shot and killed their parents, Jose and Kitty
Menendez, in the family’s Thus, Florida law does not require a duty to retreat Beverly
Hills home on August 20, 1989. The prosecution’s in order to establish
self-defense. A highly controversial theory supporting murder charges was that
the killings were Florida case, which presented a self-defense claim, motivated by
greed and the brothers’ desire to acquire by involved the 2012 shooting death of
Trayvon Martin, a early inheritance their parents’ considerable wealth. How-
17-year-old African American, by George Zimmerman , a ever, after abandoning a
story cooked up for police inves- self-declared neighborhood watch captain. At
trial, the tigators that the Mafia had killed their parents, Erik and evidence showed
that Martin was visiting his father, Tracy Lyle claimed at trial that the killings were the
result of years Martin, in the Twin Lakes gated community, in Sanford,
Are “Stand Your Ground” s an Effective way to Stop Violent Crime? by Hickey
6

Florida. On February 26, Zimmerman called 911 to report successfully
established the “SYG” defense, he could have a “suspicious person” in the
neighborhood. The dispatcher not been faced criminal or civil proceedings in this case.
instructed him not to get out of his SUV, or otherwise Is such a law a good social policy,
however? The authors engage the person. Zimmerman disregarded this directive of the
articles in this Chapter would have very different and moments later witnessed heard
gunfire. When police answers to this question. arrived, Zimmerman acknowledged
shooting Martin, who Jorge Amselle contends that “SYG” law opponents was
found bleeding from the nose and back of head and are trying to make the case that
these laws have turned later died from his injuries. The next day Zimmerman lawful
gun owners into a “shoot first ask questions later” went to his family doctor, who
testified that he had two people and that SYG has made this both acceptable and black
eyes, a fractured nose and two cuts on his head. Zim- legal. He contends, in response,

that SYG laws do not merman was later charged in Florida court with second change
the criteria for claiming legitimate self-defense or degree murder. A Florida jury
accepted Zimmerman’s self- the use of deadly force. Moreover, the use of force must
defense claim and found him not guilty. In 2015, the U.S. normally be
proportionate to the existing threat. Department of Justice declined to file civil rights
charges James Beckman, in contrast, argues that modern “SYG” against
Zimmerman. Moreover, in a recent and somewhat laws are a threat to public
safety. They encourage individuals macabre postscript to this case, George
Zimmerman has to escalate threating situations and have led to an
increase offered publicly to sell online the gun he used to kill Tray- in homicides in
states where they have been adopted. von Martin, The opening bid was set at
$100,000. (Reu- Which of these positions do you support? While ters, World, May
16, 2016).

reading the selections in this issue, think carefully about Zimmerman’s defense team
decided tactically to use the purposes and objectives of self-defense claims and the a

traditional self-defense strategy in this case and forego goals of the U.S. justice system? Do
SYG laws facilitate a “stand your ground” (SYG) law pretrial hearing. Had he

these goals?
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Taking Sides: Clashing Views in Crime and Criminology, 13/e

YES
Jorge Amselle

Why We Need “Stand Your Ground” s
Lithwick also makes it seem that SYG is a new phe It is no surprise that the lefty
media hates guns but nomenon, something states just started instituting in the ever
since the Travon Martin shooting in Florida they last decade. It is true that legislatures
started passing these have become especially apoplectic about Stand Your laws in a very
specific manner more recently but case law Ground (SYG) laws. In their continued criticism

they have questioning the Duty to retreat (which is the basis for SYG) brought up two
other Florida shooting incidents and one goes back well over 100 years. The best known
example of in Arizona. They conveniently ignore the fact that in all of this is Brown v. United
States (1921) where the U.S. Supreme these incidents, including the Travon Martin case
SYG was Court held that there was no duty to retreat in a legitimate either not a factor
or most likely doesn’t apply. …
self-defense case. Basically these laws make it clear that in a self- Here is an excerpt about this
case from Wikipedia defense situation you do not have a duty to retreat before “if a man
reasonably believes that he is in immediate using lethal force. They are the law in 22 states.
In the rest danger of death or grievous bodily harm from his assail of the country, at
least outside your home, you may have ant he may stand his ground and that if he kills
him he a duty to retreat.
has not exceed the bounds of lawful self-defense.” Wow, The most recent anti-SYG rant

comes from Dahlia they were using the term “stand your ground” in 1921. Lithwick over
at Slate.com. She is smart and an attorney Further, Justice Oliver Wendell Holmes wrote (also

from (who should know better) and occasionally makes good Wikipedia), “Detached
reflection cannot be demanded in points just not on guns. Using the aforementioned exam
the presence of an uplifted knife. Therefore, in this Court, ples she tried to make the case that

SYG has turned gun at least, it is not a condition of immunity that one in that owners into a
“shoot first ask questions later” type and situation should pause to consider whether a

reasonable that the law has actually made this both acceptable and man might not
think it possible to fly with safety or to legal.

disable his assailant rather than to kill him.” And there is Let’s start with the obvious. SYG
laws do not change that SOB the reasonable man again. the criteria for claiming
legitimate self-defense or the use In simple terms we need SYG laws because
too of lethal force. It is not enough to say you thought you saw often prosecutors in
self-defense cases ended up doing a gun or that you were in fear for your life. The
specifics exactly what Justice Holmes warns against, using their have to be such
that a reasonable person would feel the own detached reflection outside the
presence of that same way. Keep in mind that this reasonable person will uplifted knife to
judge the legitimacy of the actions of be sitting in a comfortable chair, far away from
danger, another. Grand juries go along and jurors are told how and dispassionately
considering your argument. Absent the state law says you have a duty to retreat if you can
clear physical evidence or witnesses it isn’t as easy to prove safely do so.
Twelve people sitting in perfect safety get self-defense as the media makes it out to be.
to decide if it was safe for you to retreat before they The use of force also has to be
proportional in most have to decide if it was OK for you to use lethal force to cases. If
someone is simply threatening you with their defend yourself. words and gestures,
you can’t shoot them no matter how Duty-to-retreat laws place an extra and unreasonable

scared you are. If you get in a fight with someone and are burden on those claiming legitimate
self-defense. That a participant in the altercation your ability to later claim is why so many states
have enacted specific legislation self-defense if you use lethal force will be severely compro- to
eliminate duty to retreat. Frankly, as an advocate of mised. SYG changes none of this.
self-defense and a firearms instructor, I think it is a good

Amselle, Jorge, “Why We Need ‘Stand Your Ground,’ s” The Daily Caller, March 11, 2014.
Copyright ©2014 The Daily Caller. Used with permission.
Are “Stand Your Ground” s an Effective way to Stop Violent Crime? by Hickey
6

le
idea to retreat if you can but I don’t feel qualified to sit in
JORGE AMSELLE is a certified firearms instructor and writer Judgment of another
person’s decisions when in mortal
covering all aspects of the gun industry from military and danger. Liberals seem
to have no qualms about judging
148mg law enforcement firearms and training to the shooting sports.
low others, it seems.
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Taking Sides: Clashing Views in Crime and Criminology, 13/e

James Beckman

The Problem with Stand Your Ground s: A

Proven Detriment to Public Safety

Introduction
self-defense rules through its promulgation of its famous/
infamous SYG law of 2005—both as to what the revisions The passage of the Florida
“Stand Your Ground” (SYG)
entail, why changes to the law were purportedly needed, legislation in 2005 was truly like
the proverbial gun shot and the alleged chief arguments in favor of these laws; and heard
round the world. Immediately upon passage of the
(3) the chief arguments today in opposition of SYG laws law, visitors from around the
globe were advised to be and this author’s conclusions as to the efficacy and value careful when
visiting Florida because of this new law, and of SYG laws (as currently formulated) in ultimately
serv leaflets were even handed out at the Florida airports advis- ing as a detriment to public
safety in instances involve ing incoming tourists of this potentially life-threatening self-defense or
in active shooter scenarios. To be clear, this change to Florida’s laws. The passage of this state
law in
author is not proposing that one may not use deadly force 2005 was the result of
very heavy lobbying by the influ- to repel attacks where one is imminent fear of grave
harm ential National Rifle Association (NRA). Since that time, or death. Rather, it will be
argued that the recent SYG laws thirty-three additional states have revised their deadly use are
actually superfluous to the state of the law for victims of self-defense laws to emulate Florida’s
2005 legislation. before 2005 (even in “duty to retreat” states) and that the As such, the NRA’s
successful campaign in this area can laws since 2005 have been shown to do more harm than
rightly be described as one of its more successful efforts in good to public safety. recent
history at implementing laws relating to gun own ership (or more accurately, the
protection of gun owners Classic Rules Pertaining to Use of Deadly and right to
carry laws) throughout the United States. Yet,
Force and the Duty to Retreat Rule the debate over the use of deadly force in
self-defense has existed for centuries, and certainly long before Florida’s The
concept of lawful self-defense permeates every 2005 alternations to the classical
rules of the use of deadly aspect of human existence, from one-on-one interac force in
self-defense in cases when one was in imminent tions between two individuals on a street
corner to inter fear of great bodily harm or death, or the protection of actions between
nation-states under international law. another in such legitimate imminent fear.

In fact, Article 51 of the United Nations Charter speaks Thus, the often misunderstood and
misquoted of a nation’s “inherent right” of self-defense against underlying history of
SYG laws goes back well before Flor- the armed attacks of other countries, or even

threats of ida in 2005 and is relevant to understanding why such such armed attacks. In

English Common , there have laws were initially passed, the current climate and status
been rules on the individual use of deadly force in self of SYG laws, and whether such laws

are ultimately good defense for centuries, and certainly since the thirteenth or bad for public
safety in the United States. In ultimately century (Levin, 2010, p. 528). Interestingly,

even in the advocating that the SYG laws as currently formulated do early middle ages, the
killing of another human being, not constitute wise public policy, I would like to divide even
if in self-defense, was still considered homicide by and discuss my comments into three

interrelated areas, the Crown. Phrased another way, early English Common namely:
(1) the historical and classic rules pertaining to did not permit one to “stand one’s ground”

and kill the use of deadly force and the proper rules of the so-called in
self-defense, and only permitted the killing of another “duty to retreat” doctrine

that existed in many states if one was attempting to apprehend a so-called “flee before
2005; (2) Florida’s revisions to classic deadly force ing felon,” if you need to kill to protect

yourself from a

Beckman, James, “The Problem with Stand Your Ground s: A Proven Detriment to Public Safety.” Copyright ©
2016 by James Beckman, J.D., LL.M. Reprinted by permission.
Are “Stand Your Ground” s an Effective way to Stop Violent Crime? by Hickey
65

robbery attempt or were acting under special permission in order to spare the life of the
one who precipitated the a writ) from the Crown (Mischke, 1981, pp. 1002-1003).
difficulty in the first place” (Loewy, 2003, p. 76). The idea The origins of the ability
to kill in self-defense ironically behind this retreat rule (beyond its centuries old
mooring initially developed as almost a post-trial mitigating factor in the
law) is that one should not needlessly shed blood in sentencing, by showing
that one tried to retreat as far (even an alleged criminal’s blood) “when a person
can as possible and only killed as a last resort. If a defendant avoid danger by running
away” (Loewy, 2003, p. 76). could prove that he or she attempted to flee and retreat
The “duty to retreat” rule began to gain traction and only killed as a last resort, the jury
could enter a spe- and was adopted by more and more jurisdictions between cial finding of
guilty. This enabled the Crown to intervene 1962 and 2005. Indeed, a variety of well accepted
crimi in the case and possibly commute or pardon the defend- nal law textbooks

asserted that “duty to retreat” states ant’s sentence, based upon any unique case
circumstances actually outnumbered “no retreat” states for many years (Brown, 1991, p. 3).
Thus, ironically, for hundreds and after the completion of the MPC and prior to the
passage hundreds of years before the United States became a sepa- of Florida’s SYG law in
2005 (see, for e.g., Schmalleger, rate country in 1783, English Common disfavored
2002, p. 163; Loewy, 1987, p. 68). Indeed, as late as 2002, the so-called
modern-day right to stand one’s ground in one prominent scholar (Dr. Frank
Schmalleger, Professor self-defense. The requirement that a convicted defendant
Emeritus at the University of North Carolina) asserted that could have the Crown
intercede on his or her behalf by “most jurisdictions impose a retreat rule upon those
who showing that he or she retreated to the wall and did eve- would claim
self-defense” (Schmalleger, 2002, p. 163). rything possible to avoid bloodshed was
the legal require- Another prominent law professor similarly asserted sey ment for
hundreds of years and was the genesis of the eral decades earlier that “the ‘retreat’ rule … is
adopted by “duty to retreat” rules that gain a prominent foothold many jurisdictions
and the M.P.C. [Model Penal Code] …” in the United States centuries and
centuries later. As one (Loewy, 1987, p. 68). While somewhat speculative, the rea
law scholar has written, for centuries at common law, the son why many states
adopted this rule was because requir Crown made clear through its laws and
“communicated ing victims of crime to retreat when they safely could do to the
citizens that the right to defend one’s self against so clearly had the tendency to
reduce the loss of life (and an attack was not an automatic license to kill” (Glinton, not
increase it) and de-escalate violent situations (and 2013, p. 1), arguably unlike the
mentality of many in the not increase them). Further, as will be explained below, United
States today under modern SYG laws.
the “duty to retreat” rule, while much maligned by the Yet, early on in the American
experience, states (par- NRA, actually did not actually preclude victims of poten ticularly
those in the South and West) allowed for the use tial crimes from utilizing deadly force if
the victim had of deadly force to defend against deadly force and refused any
subjective doubt whatsoever that he or she could not to impose the “duty to retreat”
that had existed for cen- escape completely and safely without harm. If the poten turies in
England (Catafalmo, 2007, p. 507). These states tial victim had any doubts, he or
she could utilize deadly become known as “no retreat” jurisdictions. These states force to
defend themselves. constituted a majority of states well into the 1960s. Particu-
Thus, one of the most deliberately overlooked aspects larly after the drafting the
influential Model Penal Code of the “duty to retreat” rule during political debates
was (MPC) in 1962 (which advocated for a “duty to retreat” the fact that victims need

not retreat at all unless that per before utilizing deadly force in self-defense), more
and son subjectively believes and knows that he or she could more states began
imposing a “duty to retreat” require- retreat with complete and utter safety
(Loewy, 2003, p. 77). ment before using deadly force in self-defense (when out.
Thus, as one law professor has written, “even though a rea side of one’s home). Simply
put, in jurisdictions adopting sonable person might have known that he could retreat in this rule,
the victim must retreat if outside the home (if he complete safety, if this [victim] did not
know it, he would or she could do so safely) before utilizing deadly force. For be
under no duty to retreat rather than use deadly force” those states that refused to
adopt the “duty to retreat” rule (Loewy, 2003, p. 77). Likewise Professor Emeritus Frank
(which MPC acknowledged was still a majority of states Schmalleger has acknowledged
that a victim’s retreat is when the MPC was finalized in 1962), one could already
only required “if [the] retreat can be accomplished with stand one’s ground, and
utilize deadly force if one was ‘complete safety!” (Schmalleger, 2002, p. 163). Yet, this
in imminent fear of grave bodily harm or death. Phrased salient and important element
of the “duty to retreat” another way, at least in the 1960s, a majority of jurisdic-
requirement was conveniently left out (or unintention tions had laws that specified
that “a person should not ally or deliberately downplayed) in the political discus
be required to resort to what some might deem cowardice sions leading up to the
promulgation of Florida’s SYG law
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Taking Sides: Clashing Views in Crime and Criminology, 13/e

of 2005, and the passage of similar laws in other states run and be chased down by the
perpetrator before thereafter. Thus, put simply, if a victim did not subjectively she could
then use force to protect herself. (Center believe he or she could extract themselves out
of the situa
for Individual Freedom, 2005) tion with complete safety, a potential victim could lawfully
use deadly force to repel an attack when he or she was in
Roughly seven years later (in 2012), in the aftermath imminent fear of grave
bodily harm or death regardless of of the George Zimmerman shooting of
Trayvon Martin, the jurisdiction wherein the potential attack took place.
and when many were protesting Florida’s SYG law, two

other Florida politicians attempted to defend the law on The Florida SYG Revolution
the same erroneous arguments made by Hammer seven
years prior by setting forth an equally erroneous applica On April 26, 2005,
then-Florida Governor Jeb Bush signed
tion of what “duty to retreat” laws actually entailed. The Florida Senate Bill 436 into
law, amending Florida’s statu
politicians stated: tory laws on the use of deadly force in self-defense. What did these
revisions do to the existing standards discussed
Consider an elderly woman in a dimly lit parking above? First, the law eliminated
entirely any duty to lot or a college girl walking to her dorm at night. retreat for a potential
victim in any place the potential If either was attacked, her duty was to turn her victim was
entitled to be (street corner, movie theatre, car, back and try to flee, probably be
overcome and shopping mall, etc.)—basically making any public space raped or killed.
Prior to ‘Stand Your Ground,’ that a person’s “castle” for self-defense laws, even
though the
victim didn’t have the choice to defend herself, potential victim could have escaped the
situation with
to meet force with force. (Schorsch, Gaetz, and complete and utter safety. Second, the
law eliminated civil
Gaetz, 2012; also, Franks, 2016, p. 145) liability for those who utilized their concealed
weapons in self-defense. Third, the revised law created a presumption
Thus, if the only premise for a revision to Florida’s of reasonable fear for the
individual claiming self-defense,
law to eliminate any duty to retreat was based upon the meaning the potential
victim no longer needed to claim
above type scenarios, the justification for such revisions and offer some evidence that
he or she was in imminent
were quite weak indeed as one could always use deadly fear of grave bodily harm or
death (Cheng and Hoekstra,
force (regardless of jurisdiction—whether it was a “retreat” 2012, p. 1). These
changes prompted one of the twenty
or “no retreat” jurisdiction if one did not subjectively Florida legislators (Dan Gerber)
who voted against the …