Commentary

Why the Washington Post Is Wrong about Stand Your Ground Laws

The Washington Post has made clear its opposition to — and persistent misunderstanding of — the set of self-defense laws known as Stand Your Ground. Its March 29 editorial was headlined “A rise in homicides after ‘Stand Your Ground,’” even though homicides per capita in Florida have dropped, not risen, since that state enacted its law. The editorial claimed that the law “immunizes an individual from criminal charges if he asserts he had a ‘reasonable’ fear of grave harm.” This grossly misstates the law: individuals may assert anything they please, but it is up to legal finders of fact, such as a judge or jury, to ascertain whether a claimed fear was in fact reasonable.

On Sunday the Post ran a front-page piece by Marc Fisher and Dan Eggen pursuing its case against Stand Your Ground. The casual reader might well nod along with the piece in its thesis that the laws are costing innocent lives. Look more closely, and you’ll realize things are more complicated.

Fisher and Eggen’s core assertion is that “justifiable homicides” — we’ll get to how that category is constructed in a moment — have jumped since the law’s enactment. Interestingly, the paper is now relying on a different and much lower set of numbers than it used when it made the same assertion in its March 29 editorial. Back then, it cited calculations from the Tampa Bay Times that the annual average of justifiable homicides in Florida jumped from 34 before the law to more than 100 afterward. Now it turns out the actual numbers are more like 12 and 36. The new and lower number apparently excludes shootings by police, which aren’t at issue in the current debate. It also excludes unsuccessful assertions of self-defense, which some higher tabulations have included.

In neither report does the Post come to grips with what those numbers actually mean. They represent not a rise in the rate at which some group is getting killed — as mentioned, homicide rates per capita in Florida are down from 2005, not up, and violent crime rates in the state are sharply down — but rather successful assertions of self-defense, in other words, a shift from one category of homicide to another. Of course the whole idea of the law was to make the self-defense justification more available where a homicide had occurred. Many casual Post readers will assume that dozens of persons a year now die in Florida who would have lived otherwise, but they will be wrong in that assumption.

Fisher and Eggen also struggle with keeping straight the different provisions in Florida’s law. They lead with a dramatic anecdote arising from the law’s defense-of-the-home “Castle” provisions, although George Zimmerman’s shooting of Trayvon Martin had nothing to do with those provisions. (As I and others have been arguing for a while, the calculation of Zimmerman’s guilt or innocence is unlikely to be affected one way or the other by the terms of the 2005 Florida law, which lays out separate rules regarding self-defense in public places. )

And oh, how Fisher and Eggen do stack their lead anecdote. Their opening paragraphs tell of a youth who innocently “knocked at the wrong door” and was greeted by an irate homeowner who, seemingly without reason or provocation, blasted him in the chest, only to be set free by the police, since in Florida, the victim’s father sorrowfully avers, it seems “the shooter’s word is the law.”

Pretty horrifying, right? It takes 17 paragraphs of unrelated matter before the first scraps of the other side of the story emerge: it was 4 a.m. and the youth, bipolar and “blitzed” on alcohol that night, was ignoring repeated pleas to leave a property with a young mother and baby inside; the husband/shooter (whom the Post never managed to reach for his side of the story) told police that he had asked his wife to call 911, which hadn’t shown up; that he had warned the intruder many times, and fired only after being “lurched” at; he was then arrested, “but Assistant State Attorney Manny Garcia concluded that his actions were ‘justified.’”

Maybe that all adds up to a case for reforming the Castle law, but it’s an even clearer case for reserving judgment on a grabby Post lead until one learns what has been omitted from it.

And that’s even more true of the statistics that the Post relies on about a supposed national spike in justifiable homicides. Why choose 2005 as a baseline? Supposedly because Florida enacted its law in that year (though most of the other states to expand their self-defense laws acted more recently, and as Dan Kahan of Yale points out in an interesting post, “stand your ground” has long been the majority rule in American jurisdictions, having indeed already prevailed in many states that acted formally to endorse the doctrine in recent years.)

But the Post’s own graphic makes it clear that 2005 is a misleading year to pick as a base, since that one year happened to see a pronounced dip (to 192 from a range 10-20 percent higher than that) in the number of annual homicides deemed justifiable. To use that as a base year thus ensures that the number of such homicides in later years will show an apparently impressive spike, while using (say) 2003 or 2007 as the base would show a not-so-impressive rise. Again, check out the graphic:

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Strip away the layers of advocacy disguised as news — and at a place like the Post, which really should know better — and it becomes apparent that we are still a long way from being able to state with assurance how, and in which direction, “Stand Your Ground” may affect violence rates.

Walter Olson is a senior fellow at the Cato Institute and writes often on disabilities law.