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Stand Your Ground

The WNYC/PRI program, The Takeaway, had a segment on July 26th, 2018, about so-called “Stand Your Ground” laws.  The event that precipitated the discussion was a shooting in Florida, self-characterized by the shooter as an act of “self-defense”, in which (at least so far) the local police and District Attorney have declined to press charges and have reportedly cited Florida’s “Stand Your Ground” law as their reason.

The discussion, despite the fact that it was broadcast on a Public Radio program originating in New York City, took a superficially neutral, “just the facts” tone.  But it undermined that tone by setting up a straw-man — that the incident in question was both typical and representative of “Stand Your Ground” jurisprudence — when it accepted at face-value, without either dispute or comment, the easily contestable assertion by the local Sheriff that the Florida “Stand Your Ground” law prevented him from bringing charges against the shooter; and the “expert” they chose to interview, Stanford Law Professor John Donohue, rather clearly started from a presumption that there is something both uncivilized and radically regressive about the whole notion of “Stand Your Ground” and, when asked about the origins of such laws, described — without offering any other historical, philosophical, or practical background — a self-conscious, cynical, and nefarious marketing effort on the part of the NRA to promote increased gun ownership by reducing the legal barriers that would prevent people using guns on each other.

I wrote this to Tanzina Vega, host of The Takeaway and of that particular segment, both to suggest that, perhaps, there was more to the history of and reasons behind “Stand Your Ground” than what Professor Donohue had so contemptuously asserted, and to dispute the notion that, properly understood and applied, “Stand Your Ground” necessarily either had or should have anything to do with this particular incident.

29 July 2018

Ref: Your segment, “Another ‘Stand Your Ground’ Shooting in Florida Draws Scrutiny,” on The Takeaway, 26 July 2018

Ms. Vega,

Your report on “Stand Your Ground” laws was, to all appearances, designed to convince your listeners that it was being reported fairly and neutrally, and that any conclusions one might draw from it followed naturally from the facts of the story.  Alas, that structure and tone belied the underlying bias inherent both in the assumptions from which the story flowed and in the “expert” opinions provided as explanations for them.

The setup and context for the report and the ensuing discussion was a presumption that an incident in Florida, in which one man shot another after an altercation over a parking space, was a typical and representative example of what is happening in America all the time because of “Stand Your Ground” laws in various states.  In the immediate aftermath of the event, the local sheriff asserted that he would not charge the shooter because Florida’s “Stand Your Ground” law prevented him from doing so and that, if that law were not on the books, the case “…probably would have a different outcome.”  You (and, to be fair, pretty much everyone else reporting on this) let that assertion — that this outcome was mandated by the “Stand Your Ground” law — stand without challenge, as if it were so self-evidently true that it wasn’t even worth the breath wasted in a follow-up question, never mind the effort required for actual research.  And, building on that, you launched into a discussion in which your designated-expert guest, Professor John Donohue of the Stanford Law School, explained for your listeners not only how radical such laws are but that the only reason we must live with them is because they were pushed through credulous legislatures after a nefarious and cynical high-pressure marketing campaign by the NRA intended to increase gun sales by making it easier for us all to shoot each other.

The problem is, neither of those assertions is actually, or even remotely, true.

To begin with, as Jacob Sullum, of Reaon.com, (and others) have tried to explain, to whoever was willing to listen in the days since the sheriff’s ill-considered pronouncement, there is nothing about “Stand Your Ground”, conceptually or as actually defined in the various state laws, that changes either the definition of “self-defense” or the standard of “reasonableness” by which it is to be adjudged.  “Stand Your Ground” — and the related “Castle Doctrine”, which applies specifically within your domicile rather than more generally in public spaces — define specific circumstances under which acts of self-defense may be legally justified but do not change the standard of what actions do or do not constitute self-defense in the first place.

It is true that Florida’s particular version of a “Stand Your Ground” law also shifts the burden of proof for purposes of prosecution — it requires a prosecutor to prove that an act was not reasonable, rather than requiring a defendant to prove that it was — but even so, it leaves the underlying meaning of “reasonableness” intact and leaves it to police, prosecutors, and juries to assess that meaning in the light of individual circumstances.  A prosecutor who believes that an act was unreasonable and unjustified — as has always been true, both before and after “Stand Your Ground” — has not only the right but the duty to prosecute it, even if a particular law makes that prosecution require somewhat more effort that it otherwise might have.  Hence, there is nothing in any “Stand Your Ground” law — in Florida, or anywhere else — that would preclude a sheriff or a prosecutor from concluding a claim of self-defense was unjustified and prosecutable unless the only reason for claiming so was that the claimant defended himself/herself rather than running away.

Because that is what “Stand Your Ground” laws say: not that there is some new standard for what constitutes an act of self-defense — and, most assuredly, not that you are now free to shoot someone at the slightest provocation — but that you are not required to retreat — or to prove that you tried to retreat — before you defend yourself.

“Stand Your Ground” might have applied to the current case in that limited sense: it stipulates someone in such a situation is no longer, as they once were, specifically and automatically required by the law first to attempt a retreat before they may defend themselves.  Hence, the merest fact that the shooter acted when he might, instead, have run away is no longer enough, on its own, to undermine a claim of self-defense.

But a claim of self-defense must, nonetheless, still be based on a reasonable fear of imminent harm.  In this case, the shooting, itself, can fairly clearly be argued to have been wholly unreasonable and, therefore, unjustified, if for no other reason than that, as shown in the video of the incident, the shooting victim was at least 15 feet away from the shooter and clearly backing away, diminishing rather than amplifying any threat, at the time he was shot.  That is, whether or not the shooter was “standing his ground” is irrelevant because there was no plausible reason for him to conclude that, at that moment, he was in any imminent and continuing danger.

Moreover, in this case the altercation that led to the shooting was initiated by the shooter and self-defense claims have historically, justly, and commonly been rejected when made on behalf of an aggressor  — that is, under any version of self-defense laws, whether they include “Stand Your Ground” or not, you don’t get to pick a fight and then claim self-defense when it escalates to the point of danger.

And, in any event, under the particular circumstances of this case, “Stand Your Ground” was probably moot, anyway due to the simple fact that the shooter was both disabled and had already been knocked to the ground by the time he started shooting.  It is a near certainty that any realistic opportunity for retreat had already been lost and that, as a result, having exhausted his opportunities for retreat, even under the laws of self-defense in place prior to the advent of “Stand Your Ground”, he would have been in a position that justified an act of self-defense had there been an actual, ongoing, and imminent threat.

In other words, in pretty much every way possible, the Sheriff’s assertion that, but for the “Stand Your Ground” law, this case “…probably would have a different outcomewas and is demonstrably wrong!  If there are no charges filed as a result of this incident, it is not because of any requirement of the “Stand Your Ground” law.  It is because the sheriff and the prosecutor are, for some reason, using a patently incorrect interpretation of the law as an excuse for shirking their responsibilities.

 

Nonetheless, even if this particular case was not an actual example of the ills ascribed to “Stand Your Ground” laws, it is still worth having an honest and level-headed conversation about what the consequences of those laws actually are and about why they exist.  Alas, that is not what you, through the testimony of Professor Donohue, provided.

Professor Donohue’s description of a cynical NRA campaign to increase gun ownership may have some minor correspondence with reality — that is, the NRA, as do most activist organizations, may have exploited contemporary events and emotions to advance its cause — but it is simply incorrect to explain the entire “Stand Your Ground” movement as an NRA-initiated plot rather than as a reflection of real and powerful forces within the American body politic.

There is, and has been for centuries, a genuine and earnest debate in this country about the requirements and limits of deference to the State when it comes to matters of personal well-being.  People who value their right to protect themselves from the burdens of parenthood by having an abortion assert the same principle of personal autonomy as those who value their right to protect themselves from being the victims of predators by bearing weapons; and both assertions come from the same moral and spiritual sources.

We all acknowledge that government exists, wholly or in part, to protect us from those who would do us harm.  The American Declaration of Independence declares that “…governments are instituted among men…” specifically “…to secure these rights…” — to secure the God-given rights of human beings to “…life, liberty, and the pursuit of happiness.”  When others threaten our rights — and, in particular, when others use violence or the threat of violence against us — we can turn to the government for protection and, in the event that protection proves to be neither timely nor adequate, for redress.  And, in return for that opportunity for protection and redress, we agree to delegate certain personal authority and surrender certain liberties to the government, in turn.

But, surrendering certain authority and liberties to the government does not mean surrendering all authority and liberties to the government.  Which authority and liberties are and are not to be surrendered in the interest of security has been a subject of fundamental debate since the founding of the country.

Benjamin Franklin, reflecting one view on the subject, famously declared that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.1  But his view is by no means universal and, in the modern world, seems to be increasingly controversial.  The history of the evolution of 20’th and 21’st century political development in America is written in the erosion of individual liberties and prerogatives in deference to an ever more powerful and ever more intrusive government.  Whether you think that is a bad thing or a good thing — whether you think that is a sign of creeping despotism or an acquiescence to the necessity for coping with an increasingly complex and interconnected society — you must acknowledge that governments, at all levels, now claim authority to regulate, prescribe, proscribe and manage activities that had historically been viewed as the purview, privilege, and responsibility of the individual.  And you must, also, acknowledge that there is a fundamental philosophical and emotional disagreement over whether that is, in fact, a change for the better or for the worse.

In particular, there is a primal disagreement about whether, and to what extent, individuals do or do not retain a sacred right to protect themselves when they also claim protection from the State.  One view, typically associated with the American political right, asserts that individuals do retain such a right, that the government’s duty to protect augments, but does not replace, that individual prerogative.  The other view, typically associated more with the American political left, asserts that the individual prerogative to protect oneself is, and must be, significantly diminished — if not fully subjugated– in order for government to maintain the civil order required to make its protections meaningful and effective.

The true motivation for “Stand Your Ground” laws was not an NRA plot but the moral imperative that the right to self-protection be respected and preserved.  And the driving impetus for creating those laws now, despite centuries of common-law practice which did not include them, was the perception that the right to self-protection — or more generally, the right to autonomy in a great many aspects of our lives — has been and is continuing to be systematically emasculated both in law and by the condescending social attitudes of an increasingly communal culture.

To be clear, the legal imperative that you must retreat, rather than defend yourself, in the face of a threat is an explicit mandate that you must affirmatively participate in your own victimization.  It reflects a political philosophy that assigns responsibility for and authority over personal well-being strictly to the State and it requires that everyone depend solely on the State for that function — it requires that, if the State can’t act in the moment to protect you against such victimization, then your responsibility as a citizen is to avoid fighting back, to accept being a victim now in the hope that you can attain some form of redress later.  In effect, it transforms the role of individuals within such a polity from that of sovereign citizen to that of ward and supplicant, from autonomous and self-directed moral agent to just another drone playing his or her assigned role in the human hive.

Hyperbole?  Of course.  But these arguments go beyond philosophy to the moral and emotional core of what it means to exist as a human individual embedded within a larger society and, so, they invite a correspondingly moral and emotional response.

You may disagree with those who value autonomy so highly, but please don’t dismiss them as deluded or ignore their arguments as if they were merely a manufactured phantom of the NRA’s publicity machine.

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© Copyright 2018, Augustus P. Lowell

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