Stand Your Ground

A young man was shot to death in Sanford, Florida (north of Orlando) in late February. The incident involved a man who was participating in a neighborhood watch program and had a permit to carry a gun. Diverse versions of what happened that day have been reported by the news media, with the shooter claiming self-defense, while those who see his actions as criminal note that the decedent was unarmed.

This has focused attention on a provision of Florida law known as "stand your ground." Many critics appear to be blaming the law for creating a Wild West mentality in the Sunshine State. But it seems a stretch to suggest that such laws encourage vigilantism or cause people to feel justified in shooting each other at the slightest provocation.

An understanding of the meaning of the phrase "stand your ground" in this context requires an awareness of the variety of legal treatments of self defense that may be found in different jurisdictions.

A series of laws enacted in England - including the Firearms Act (1920); the Prevention of Crime Act (1953); an omnibus revision of criminal law (1967); and a sweeping ban on handguns (1998) - has created a very different legal climate for self defense in Britain from what exists in the United States. In England, just about any implement may be judged an "offensive weapon" when used to injure another person; its possession will then be retrospectively treated as a crime. (In fact, police may stop and search a person and charge him with a crime for possession of an "offensive weapon" that has never been used.) When a person uses force in self defense, that use of force will be judged in retrospect. The standard is not whether a reasonable person placed in a situation would be fearful of serious harm from an assailant, but rather whether the fear turned out, when all was said and done, to have been warranted. Many observers have concluded that the right of self defense effectively no longer exists in England. Well publicized cases seem to substantiate this view. Published "Guidance" from the Crown Prosecution Service suggests that a decision to prosecute based on assessment of reasonableness of force will be strongly influenced by the consequences of the use of force and the use of a dangerous weapon. So you can be fairly certain that self defense involving a knife or firearm and serious harm to the assailant against whom you are acting in self defense will turn you into a criminal defendant.

Many Britons are quite unhappy with this situation, and Conservative Prime Minister David Cameron is on record as saying the right of self defense, long a feature of English Common Law, should be restored to its rightful place in statute.

The situation in the U.S. is a veritable crazy quilt. There are jurisdictions where one cannot lawfully possess a handgun in one's home, and many more where it is difficult or impossible to obtain a permit to carry a gun lawfully in public. On the other hand, in many other locales, a permit to carry must be issued to any citizen with a clean record. In two states (Vermont and Alaska) one does not even need a permit.

In some jurisdictions there is a duty to retreat. If you are threatened by a criminal assailant in your own home, you must try to escape. You may act in self defense only when you have reasonably concluded that death or grievous bodily injury is imminent and that there is no possibility of escape. Other jurisdictions have established what is commonly called the Castle Doctrine, meaning you have no legal duty to retreat from your own home and may use force (including lethal force) to prevent serious injury to yourself or your family.

But what if you have a permit to carry a handgun in public places, and you are attacked in a public place? A law such as Florida's says you may "stand your ground" - meaning you may use force in self defense if you are any place where you have a right to be.

As you can surely see, it is important to know what statute and case law say about your rights in the jurisdiction where you live and work and go about your daily business. The same is true if you routinely travel to other states. Does the state in which you are traveling recognize carry permits issued by your state? What are its legal requirements for acting in self defense?

What about defense of property? Some states authorize the use of force, even lethal force, in defense of property under some circumstances. So you can lawfully shoot a burglar in your home. Whether it is ethical to use lethal force in defense of property is another question entirely, and surely a more important one. I can imagine using lethal force in defense of property only under extreme circumstances, such as stopping an arsonist from burning down my house (because that could pose a danger to human life, including neighbors and firefighters).

Notice that none of this, even a "stand your ground" law, says you can go out looking for trouble. If you go out and pick a fistfight, find yourself on the losing end, even to the point of being in danger of serious injury, and then react by using a gun to bring the conflict to an end in your favor, you will have a very difficult case to make.

Science fiction author Robert Heinlein once said, "An armed society is a polite society." By this he meant that when people go about in public carrying guns, they tend to be more circumspect in their behavior, knowing that the presence of a gun raises the ceiling on escalation of any interpersonal conflict. They therefore feel obligated to avoid conflict and to de-escalate conflict when it occurs.

Unfortunately, many people who obtain permits to carry guns do not take the time and make the effort to familiarize themselves with the legal and ethical principles governing the use of lethal force in self defense. I have many times recommended the excellent book by Massad Ayoob titled In the Gravest Extreme: the Role of the Firearm in Personal Protection. I believe it should be required reading.

None of this answers the question of whether people should be able to use lethal force in self defense or under what circumstances. Should the Castle Doctrine be the law? What about "stand your ground" laws? These are questions on which we all have our own opinions. The record suggests that persons who own and carry lethal weapons lawfully rarely use them to commit crimes. Ardent advocates on either side of the gun rights issue cite statistics, often saying things that directly contradict each other.

I would encourage those who are interested to do a bit of serious research into the validity of claims and counter-claims about whether the private ownership of firearms by law-abiding citizens is good or bad for our society. I could try to convince you that my own views on this question are correct, but that would take a very long essay. If you know me, ask my opinion when you have plenty of time. If you approach the subject in a spirit of intellectual inquiry, I'll buy the beer.