Chairman Castro and distinguished commissioners, thank you for this opportunity to discuss “stand your ground” (SYG) laws and potential racial disparities in the application of various protections for the constitutional right to armed self-defense. It’s most appropriate that we have this hearing in Orlando, which is so close to the tragic incident—the death of Trayvon Martin—that ignited the current incarnation of this public policy debate.
Indeed, since George Zimmerman was found not guilty, SYG laws have been under attack. President Obama injected race into the discussion, referring to the “pain” the black community feels over the Zimmerman verdict, and claiming that the outcome would have been different had Martin been white.1 Speaking at the NAACP convention last year, Attorney General Eric Holder claimed SYG laws “undermine public safety” and “sow dangerous conflict in our neighborhoods.”2 Both want these enhanced self-defense laws “reviewed”—which of course means “repealed.”3
But before I get into my review of the laws vis-à-vis racial disparities, and since I’m a constitutional lawyer by training rather than a social scientist, let me provide you an overview of SYG laws so everyone’s on the same page.
The State of Stand Your Ground Laws in America4
SYG laws are a tremendously misunderstood aspect of the debate over firearms regulation and criminal-justice reform. Notwithstanding recent efforts to politicize the issue,5 there’s nothing particularly novel, partisan, ideological, racist, or otherwise nefarious about these laws. All they do is allow people to assert their right to self-defense in certain circumstances without having a so-called “duty to retreat.” The SYG principle has been enshrined in the law of a majority of U.S. states for over 150 years, originating as judge-made common law and eventually being codified by statute.6
At present, about 31 states—give or take, depending on how you count—have some type of SYG doctrine, a vast majority of which had it as part of their common law even before legislators took any action.7 So even if these statutes were repealed tomorrow, SYG would still be the law in most states because of preexisting judicial decisions. And, some states, like California and Virginia, maintain SYG judicially, without having passed any legislation.
It’s also worth noting that of the 15 states that have passed variations of the law since 2005, the year Florida’s model legislation was enacted, 8—a majority—had Democratic governors when the laws were enacted. None issued a veto. Democratic governors who signed SYG bills, or otherwise permitted them to become law, include Kathleen Blanco of Louisiana, Jennifer Granholm of Michigan, Brian Schweitzer of Montana, John Lynch of New Hampshire, Brad Henry of Oklahoma, Phil Bredesen of Tennessee, Joe Manchin of West Virginia, and Janet Napolitano of Arizona. The bills in Louisiana and West Virginia passed with Democratic control of both houses in the state legislatures, in 2006 and 2008, respectively. Even Florida’s supposedly controversial law passed the state senate unanimously and split Democrats in the state house. Conversely, many so-called “red states,” or those that have a significant gun culture—such as Arkansas, Missouri, Nebraska, and Wyoming—impose a duty to retreat. And even in the more restrictive states, such as New York, courts have held that retreat isn’t required before using deadly force in the home or to prevent a robbery, kidnapping, or rape.
Having outlined the current state of play, let’s step back and examine the development of the law regarding the right to self-defense and the use of deadly force, to see how SYG emerged and understand what it means.
The Law of Self-Defense
It’s a universal principle of law that a person is justified in using force to the extent that he or she reasonably believes that using force is necessary to defend him- or herself or someone else against an imminent use of unlawful force. Where there is no duty to retreat—as in most of the United States—a person is further justified in using deadly force if he or she reasonably believes it to be necessary to prevent imminent death or great bodily harm, or to prevent the imminent commission of a forcible felony (such as rape or armed robbery).8 That’s the norm throughout the country: deadly force may be used only in cases of “imminent death or great bodily harm” that someone “reasonably believes” can only be prevented by using such force.
It’s not an easy defense to assert, and it certainly doesn’t mean that whenever you’re afraid, you can shoot first and ask questions later. Every day, criminals assert flimsy self-defense claims that get rejected by judges and juries regardless of whether the given state has a SYG law. These laws are not a license to be a vigilante, commit murder, or otherwise behave recklessly or negligently with firearms and other deadly weapons. They simply protect law-abiding citizens from having to leave a place where they’re allowed to be simply because criminals show up and threaten them. In other words, in most states, victims (or would-be victims) of a violent crime don’t have to try to run away before defending themselves.
That’s why the core of the debate over SYG—the real one, not the phony war we’ve been having lately—is really one about the duty to retreat. This is not a new debate, but something that’s been going back-and-forth in Anglo-American law for centuries. In ancient Britain, when the deadliest weapons were swords, a duty to retreat made sense and greatly reduced everything from violent incidents to blood feuds.9 Firearms and especially handguns were also not as widespread in modern Britain until fairly recently, and British law continues to reflect the historic “deference to the constabulary,” by which the King owed a duty of protection to his subjects. That deference to the sovereign was never part of the American tradition, for understandable reasons. In this country, at any given time about half the states may have had SYG laws, and today’s split is well within historical norms.
Indeed, despite what gun prohibitionists and others claim, the no-retreat rule has deep roots in traditional American law. At the Supreme Court, SYG dates back to the 1895 case of Beard v. United States, in which the great Justice John Harlan wrote for a unanimous Court that the victim “was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.”10
In jurisdictions that do have a duty to retreat, people who were at genuine risk of death or grievous bodily harm can be prosecuted and sent to prison for very long terms, even if they were doing nothing but defending themselves. That’s controversial for any number of reasons, one of which is that the law never demands any other type of duty of people who face imminent violence. You don’t have to give up your wallet. You don’t have to reason or call for help. You don’t have to say “uncle” or apologize. But you do have to retreat. That’s odd. A mugger doesn’t have the right to demand someone’s wallet, so why should he have the right to demand something else to which he has no right?—that you leave or retreat from a place where you have every right to be.
The old “duty to retreat” rule made it hard to invoke self defense even if you had faced an immediate threat of assault: “you could have run away,” the state would argue, and conviction would follow. Among those who often lost out under that old rule were domestic violence victims who turned on their assailants. Feminists pointed out that “you could have run away” may not work well when faced with a stalker or vengeful ex.
SYG laws are thus designed to clarify the law in order to protect the law-abiding citizen who is under attack by a criminal. It’s slightly less controversial in the case of a home: It’s bad enough to have your home burglarized and your life threatened, but to have to hire a lawyer and fend off a misguided prosecutor or personal-injury lawyer defending an injured criminal was considered too much for many lawmakers. That’s how we have the Castle Doctrine, which holds that you don’t need to retreat when your home is attacked. Nearly all states recognize some version of the Castle Doctrine, such that modern laws presume that someone forcing entry into a house is doing so with the intent to commit a felony and that the use of defensive force by residents is due to a reasonable fear of bodily harm or death.
When you extend that doctrine to public spaces—as most states do—you get SYG. What’s been overlooked in the current debate about these laws is that they only apply to people under attack. Again, the rationale is that it’s bad enough for an innocent person to find him- or herself threatened by a criminal, but to then have to worry about whether he or she should retreat, lest he or she face prosecution or lawsuits for hurting the criminal, is simply too much to ask. As the great progressive Justice Oliver Wendell Holmes wrote for a unanimous Supreme Court in the 1921 case of Brown v. United States, “detached reflection cannot be demanded in the presence of an uplifted knife.”11 Nearly a century later—and regardless of one’s views on the scope of the Second Amendment or appropriate types of gun regulations—I don’t think we can demand more of crime victims trying to defend themselves.
Of course, any self-defense rule bears the potential for injustice or unfairness. For example, there can be an altercation between two people, one of whom is left dead and the other whose invocation of self-defense is dubious—but there aren’t any witnesses or other evidence to contravene it beyond the standard required for criminal conviction. That’s the Trayvon Martin case, where only George Zimmerman knows what actually happened. These sorts of cases implicate the availability of a self-defense justification for taking someone’s life rather than the existence of a duty to retreat.12 If Zimmerman was the aggressor, shooting and killing Martin for no lawful reason, then he committed murder and has no self-defense rights at all, whether the incident had taken place in a SYG jurisdiction or not. If Martin attacked Zimmerman, then the only question is whether Zimmerman reasonably believed that his life was in danger, not whether he could’ve retreated. And if Zimmerman provoked their confrontation, even if Martin eventually overpowered him, he lost the protections of the SYG law.
Of course, the Martin-Zimmerman altercation is but one case—a high-profile incident where SYG didn’t actually play a part—so we shouldn’t draw any policy conclusions from it alone. Let’s look at a broad swath of cases where SYG was invoked.
Are Stand Your Ground Laws Racist?13
In August 2012, John Roman of the Urban Institute published an article entitled “Do Stand Your Ground Laws Worsen Racial Disparities?”14 After examining the FBI’s Supplemental Homicide data for the years 2005-2009, he concluded that when white defenders kill black attackers, “the justifiable homicide rate is 34 percent.” If the defender is black and the attacker white, however, the “justifiable homicide rate” is only 3 percent. Roman concluded that SYG laws make racial disparities “more pronounced” and are “bad laws.”
Considering that Supplemental Homicide data for the years 2000-2011 were available at the time of Roman’s study, it’s telling that he chose only a limited dataset. Researchers call this sampling error, where an abridged dataset contradicts the findings from all available data. The entire Supplemental Homicide dataset for the years 2000-2011 clearly shows, like most laws liberalizing the civil right of self-defense, that blacks benefit from SYG at least as much as whites.
Then, in February 2013, the Tampa Bay Times examined more than 200 Florida court cases involving SYG, concluding: “Defendants claiming ‘stand your ground’ are more likely to prevail if the victim is black.”15 Second Amendment scholar David Hardy analyzed the Times dataset, however, and found that Florida courts applied SYG without racial bias: Two-thirds of white and black defendants claiming SYG protection were exonerated.16
To determine if SYG laws create racial disparities, we must address certain questions:
- Did justifiable homicides by black defenders increase, remain the same, or decrease after states enacted SYG?
- Did changes in interracial justifiable homicides benefit only white defenders?
- Are there other contextual issues that may explain any changes in justifiable homicide trends? (For example, if law enforcement also committed more justifiable homicides, this may indicate a general increase in violent attacks.)
To answer these questions, one could collate the 17 states enacting SYG since 2005, plus the 19 states that enacted no enhanced self-defense laws. Indeed, independent researcher Howard Nemerov compared these two state groupings to determine if old-fashioned self-defense laws make blacks safer.17 Dividing SYG states into two time periods, pre- and post-enactment, is the first step. Since 14 of the 17 recent SYG states enacted their laws in 2006, Nemerov split the non-enacting states into two groupings that paralleled the Stand Your Ground group: 2000-2005 and 2006-2011. For each period, he examined the rates of justifiable homicides by the race of the defender and attacker.18
This study—which really isn’t all that complicated to review—reveals that there’s really no difference race-wise between SYG and non-SYG states. Since the percent of black defenders killing white attackers is equivalent, SYG states aren’t any more “racist” than non-enacting states (see table below). In other words, it’s relatively uncommon for a black defender to shoot a white attacker, period.
There’s a reasonable explanation for this: Black victims get killed by whites only 7% of the time, while white victims are killed by blacks about twice as often (14%). Murders are mostly intra-racial (blacks, 91%; whites 83%). This is also how Tampa Bay Times manipulated its data to claim that SYG defendants were “more likely to prevail if the victim is black”: They failed to mention that most of the defenders were black, too!
But are blacks also free to defend themselves? If not, that would indicate another kind of racial disparity. It turns out that SYG states are far more racially egalitarian than non-enacting states, because black defenders account for nearly as many justifiable homicides as whites—46% and 49%, respectively. In non-SYG states exhibit racial disparity, because blacks account for 35% of all justifiable homicides while whites account for 58%, disproving the conclusions of the flawed anti-self-defense studies.
Black defenders in SYG states accounted for 2.2% more justifiable homicides after enactment, experiencing an increase in justifiable homicides in 11 of 17 states. Six SYG states experienced increased justifiable homicides against white attackers after enactment, compared to only two non-enacting states. This clearly shows that SYG laws resulted in more law-abiding black citizens defending themselves. Indeed, if fewer black defenders killing white attackers indicates racism, then it’s the non-enacting states that are “racist” because black defense against white attackers declined 4% between 2006 and 2011, while increasing slightly (0.3%) in SYG states.
Another important factor to consider is the racial makeup of the people who commit the violence that requires defenders to take such dramatic action to defend themselves. Along those lines, each year the FBI compiles the number of homicide offenders by race, where the offender’s race is known.19 Between 2006 and 2011, blacks have accounted for a slightly greater share of all homicides, trending from 48% to 50% of all offenders, while white attackers trended slightly down from 48% to 46%. This coincides with the national increase in justifiable homicides involving black attackers and may explain why black attackers account for a larger percentage of all justifiable homicides in recent years.
In other words, if the Obama administration wants to “review” SYG laws for racial disparities, it should control for relative rates of violent attacks and not manipulate datasets to create disparities that aren’t there. Indeed, using partial datasets to justify an anti-SYG agenda may itself be racist, especially when restrictive self-defense laws may inhibit blacks’ civil right to protect themselves against aggression. Using a complete dataset from the same source shows that, whatever racial problems exist in law enforcement or other areas of government or society, racism isn’t an issue with SYG.20
Conclusion
Hard, emotionally wrenching cases make not only for bad law, but for skewed policy debates. While race hustlers and anti-gun lobbyists have used Trayvon Martin’s death to pitch all sorts of legislative changes, what they really seem to be targeting, as it were, is the right to armed self-defense. With SYG laws, yes, prosecutors may need to take more care to marshal actual evidence to counter claims of self-defense rather than simply arguing that the shooter could’ve retreated. For those who value due process in criminal justice—which should emphatically include members of historically mistreated minority groups—that should count as a feature, not a bug.
Finally, I should note as a sort of lagniappe that threats to constitutional criminal procedure come not just from domestic lobbies but also from abroad. Just over a year ago, in September 2013, the United Nations latched onto Trayvon Martin’s death to call on the United States to review its criminal laws, citing our international treaty obligations. The press release from the so-called independent human rights experts was characteristically short on specifics, but if the UN claim is that we have some obligation to change our SYG laws, reduce the burden of proof for criminal convictions, or dilute our prohibition against double-jeopardy—which Article 14, Section 7 of the International Covenant on Civil and Political Rights actually forbids—then I agree with UCLA law professor Eugene Volokh’s suggestion that the UN “go take a hike.”21
Thank you again for having me. I welcome your questions.
Notes
1Obama Enters Martin Debate with Personal Remarks, Questions ‘Stand-Your-Ground,’ Fox News (July 19, 2013), available at http://www.foxnews.com/politics/2013/07/19/obama-addresses-trayvon-martin-case-in-briefing-room.
2Holder Wades Deeper into Zimmerman Battle, Calls for Review of ‘Stand-Your-Ground,’ Fox News (July 16, 2013), available at http://www.foxnews.com/politics/2013/07/16/holder-wades-deeper-into-zimmerman-battle-calls-for-review-stand-your-ground.
3Tom Brown, Florida Lawmakers Agree to Hearings on ‘Stand Your Ground’ law, Reuters (Aug. 2, 2013), available at http://www.reuters.com/article/2013/08/03/us-usa-florida-law-idUSBRE97201220130803.
4The first two sections are based on my testimony to the U.S. Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Human Rights, in a hearing entitled “‘Stand Your Ground’ Laws: Civil Rights and Public Safety Implications of the Expanded Use of Deadly Force,” 113th Cong. (Oct. 29, 2013), available at http://www.judiciary.senate.gov/imo/media/doc/10-29-13ShapiroTestimony.pdf.
5See, e.g., Walter Olson, Sen. Durbin’s ‘Stand Your Ground’ Intimidation, Overlawyered, Cato Institute (Aug. 9, 2013), http://overlawyered.com/2013/08/sen-durbins-stand-your-ground-intimidation.
6David Kopel, Kopel: Debunking the ‘Stand Your Ground’ Myth, Wash. Times (Apr. 2, 2012), available at http://www.washingtontimes.com/news/2012/apr/2/debunking-the-stand-your-ground-myth.
7Eugene Volokh, Duty to Retreat and Stand Your Ground: Counting the States, Volokh Conspiracy (Wash. Post) (July 17, 2013), http://www.volokh.com/2013/07/17/duty-to-retreat.
8Eugene Volokh, What ‘Stand Your Ground’ Laws Actually Mean, Volokh Conspiracy (Wash. Post) (June 27, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/27/what-stand-your-ground-laws-actually-mean.
9See, e.g., Patrik Jonsson, Racial Bias and “Stand Your Ground” Laws: What the Data Show, Alaska Dispatch News (Aug. 6, 2013), available at http://www.adn.com/article/20130806/racial-bias-and-stand-your-ground-laws-what-data-show (quoting Robert Cottrol, a law professor at George Washington University).
10Beard v. United States, 158 U.S. 550, 564 (1895). For longer discussion in the context of Florida’s SYG law, see David Kopel, Florida’s Self-Defense Laws, Volokh Conspiracy (Wash. Post) (Mar. 27, 2012), http://www.volokh.com/2012/03/27/floridas-self-defense-laws.
11Brown v. United States, 256 U.S. 335, 343 (1921).
12See, e.g., David Kopel, Stand Your Ground Had Nothing to Do with the Dunn Verdict in Florida, The Volokh Conspiracy, Wash. Post (Feb. 17, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/17/stand-your-ground-had-nothing-to-do-with-the-dunn-verdict-in-florida/.
13I’m indebted to Howard Nemerov for having brought to my attention the work he’s already done to answer this question, on which this section of testimony is based. Howard Nemerov, Let’s Use All the Data This Time: Are Stand Your Ground Laws Racist?, PJ Media (Sep. 10, 2013), http://pjmedia.com/blog/lets-use-all-the-data-this-time-are-stand-your-ground-laws-racist.
14John Roman, Do Stand Your Ground Laws Worsen Racial Disparities?, MetroTrends Blog (Urban Institute) (Aug. 8, 2012), https://www.nyccriminallawyer.com/stand-ground-laws-worsen-racial-disparities/.
15Darla Cameron & William M. Higgins, Florida’s Stand Your Ground Law: Those Who Stood, Those Who Fell: Fatal Cases, Tampa Bay Times (last updated Dec. 21, 2013), available at http://www.tampabay.com/stand-your-ground-law/fatal-cases.
16David Hardy, No Retreat Laws as a Racial Issue, Of Arms & the Law (July 25, 2013), http://armsandthelaw.com/archives/2013/07/no_retreat_laws_1.php.
17Howard Nemerov, Let’s Use All the Data This Time: Are Stand Your Ground Laws Racist?, PJ Media (Sep. 10, 2013), http://pjmedia.com/blog/lets-use-all-the-data-this-time-are-stand-your-ground-laws-racist.
18One drawback with using justifiable homicide data is that the number of incidents is relatively small, and varies annually. Also, some states may go for years without reporting an incident. Totaling five or six years together into these before/after pictures helps average out year-to-year variations.
19Crime Statistics, Federal Bureau of Investigation, available at http://www.fbi.gov/stats-services/crimestats.
20For further analysis along these lines, see the testimony of John R. Lott, Jr., Ph.D., before the U.S. Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Human Rights, in a hearing entitled “‘Stand Your Ground’ Laws: Civil Rights and PublicSafety Implications of the Expanded Use of Deadly Force,” 113th Cong. (Oct. 29, 2013), available at http://www.judiciary.senate.gov/imo/media/doc/10-29-13LottTestimony.pdf.
21Eugene Volokh, The U.N. Weighing in on the Zimmerman/Martin Investigation, Volokh Conspiracy (Wash. Post) (Sep. 6, 2013), http://www.volokh.com/2013/09/06/u-n-weghing-zimmermanmartin-investigation (quoting UN Experts Urge United States to Wrap Up Review of Trayvon Martin Case, Examine Laws, UN News Centre (Sep. 3, 2013), http://www.un.org/apps/news/story.asp?NewsID=45762).