Saturday, July 27, 2013

The Story Of 'Stand Your Ground'

In the wake of the Zimmerman decision, the Obama administration- pursuing its usual strategy of race-baiting and rabble-rousing- has committed itself to a "national dialogue" on "Stand Your Ground" laws; ironically, exactly the sort of laws the President supported as a state senator in Illinois.

The claim against SYG goes something like this: a duty to retreat from a deadly confrontation deescalates deadly confrontations, which leads to fewer deaths. Personally, I wouldn't shed a tear over the deaths of violent criminals who are killed by their intended victims, but, the Obama administration does.

There is no question that the administration is pursuing an "all avenues" approach to gun control, and one of these avenues is the attempt to dismantle self-defense for individuals. This is nothing new: such attempts have been made throughout the history of our country, and have often been alarmingly successful. The most common means of accomplishing this is through the courts; prosecutorial and judicial abuse of people who lawfully use force. These abuses, cumulatively, are intended to create so much uncertainty about lawful self-defense that common citizens are afraid to defend themselves.

The mechanism used in most such cases is re-interpretation of the "duty to retreat", where such duty exists.

Background: The old common law "duty to retreat" was intended (and for centuries, it was faithfully interpreted this way) to require an individual to retreat under a very limited set of circumstances. Namely:

1) When the immediate need for deadly force became apparent (i.e. at the exact moment that the encounter turned deadly);
2) When retreat could be accomplished safely (i.e. turning to run wouldn't mean getting shot in the back);
3) When no other persons in the area would become potential victims of the aggressor.

This is a very sensible policy. It permits individuals to protect others in their vicinity, it doesn't create a dangerous requirement to retreat under all circumstances, and it doesn't require a person to exercise psychic powers to predict a future deadly encounter.

Unfortunately, this is not how "duty to retreat" is interpreted today. Today, when it is applied, it is often applied in a manner which is unthinkable to reasonable people.

The first SYG case was a U.S. Supreme Court case, Beard v. United States (1895). Beard confronted three men trespassing on his property; two of them menaced him with firearms and he responded by using the butt of his rifle to strike them. One died of the head injury Beard inflicted. Beard was denied a self-defense claim at trial, because the law in Arkansas at the time mandated a duty to retreat from all places, including one's own property. SCOTUS overturned his conviction, stating that no person could be reasonably held to a duty to retreat under his circumstances.

Consider the implication of this: Had Beard not successfully appealed his conviction, the precedent in Arkansas would've required him to a) abandon his own home, b) expose himself to being shot in the back, and c) psychically predict that his attempt to "knock out" his attacker- a relative of his wife, incidentally- would, by freak chance, kill him.

As a result of this decision, states started changing their self-defense laws to conform. The first was Virginia, in Jackson's Case (1898). This decision abolished all duty to retreat in cases where the defender was otherwise acting lawfully.

Other states, however, have not changed, and have continued to permit the persecution of law-abiding people. Although I could cite hundreds, perhaps thousands of examples, I'll use a few of the more illustrative cases.


State of West Virginia v. Tanya Harden (2009): During a "night of domestic terror", Harden was beaten and raped repeatedly by her husband, who also beat their son. When Harden said she was leaving the home, her husband beat her head with the buttstock of his shotgun, breaking bones in her face, and pressed the barrel of the loaded shotgun against her, telling her "nobody's leaving this place tonight". Harden, believing any attempt to leave the home would alert her husband, who would carry out his threat to shoot her, waited until he dozed off, then snatched the shotgun and killed him. The state's prosecutor argued Harden had a duty to retreat from her own home because her husband "had a legal right to be there" and that she wasn't justified in shooting because the husband was asleep and "didn't pose an imminent threat", and Harden was convicted of manslaughter in 2004. Mercifully, the West Virginia Supreme Court overturned her conviction; however, she spent more than four years in prison before this relief occurred.

Since she was denied a self-defense claim by the trial judge, her defense counsel resorted to a backup option: "Battered Spouse Syndrome". This case was the impetus for states to adopt "battered spouse" rules of evidence- as opposed to changing their self-defense laws.


In State of Hawaii v. Van Dyke on behalf of Montez (2003), Hawaii Supreme Court reversed the manslaughter conviction of Montez, an attorney who, while visiting the area, was forced to defend himself in his temporary lodgings. His conviction was based on the trial court denying his claim of self-defense (since his home was a "temporary" one), and allowing "character assassination" evidence to be used against him, such as an expert witness who testified that Montez was "predisposed to violence" because he was intoxicated at the time. Montez died in prison while awaiting appeal; his sister, Van Dyke, continued the appeal on his behalf.

Consider that: A man who lawfully defended himself died in prison because of a judge and prosecutor with a political agenda. His sister worked after his death to clear his name.


State of Indiana v. Richard Barnes (2011): This is a case I have covered extensively here, here, here, and the state legislature's solution here. Barnes' home was unlawfully entered by police, who subsequently arrested him for a violation of law which didn't occur. Barnes was, despite Indiana's SYG law, held to the standard of "retreating" (i.e., allowing the police to enter unlawfully) in his own home.


Occurrences of this nature aren't the exception in states without "duty to retreat", they are the norm. They occur more rarely in states with "Stand Your Ground", as in the Indiana case above.

And for those who succumb to the race-baiting, and believe that SYG laws "allow white people to shoot black people" or some such nonsense, consider this: Minorities benefit far more often from SYG than whites. Most cases of prosecutorial and judicial abuse of this nature are inflicted on minorities, and women defending themselves from an abusive spouse or partner.

Make no mistake: The current attempt from the left to strip away Stand Your Ground has nothing to do with "safety". It has everything to do with creating in the public a greater degree of fear and uncertainty in the legal system. As the saying goes, "a right not exercised..."

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