“Stand Your Ground” Laws – Issue Backgrounder

(See also Cheryl Cheatham’s post from earlier this week.)

Since the Florida shooting death of Trayvon Martin rose to public attention, that state’s law of self-defense has attracted much attention. Florida was one of the first states to enact a ‘Stand Your Ground’ statute. (One of the tangential controversies attached to the Florida law has to do with the role ALEC, the American Legislative Exchange Council, played in drafting related legislation in nearly half the states.)

Florida’s Stand Your Ground law, and the other laws that have followed it in enacting “Castle Doctrine”-like presumptions for individuals employing allegedly defensive force outside of their own homes, is at least several steps removed from the conception of self-defense as requiring an imminent threat of deadly force; reasonable belief in the necessity for force; and generally imposing a duty to retreat instead of use force, where possible. That view of self-defense came under attack first from a series of critiques related to battered women who attacked violent spouses when the threat being defended against may not have been imminent, and then by the current wave of statutory ‘Castle Doctrine’ or ‘Stand your Ground’ legislation.

While the new genre of “Castle Doctrine” legislation takes its name from the traditional common law doctrine excluding those attacked in their own homes from the duty to retreat, the tendency is to include one or both of the following additional characteristics: to remove the duty to retreat from other places, besides the home, that one can lawfully occupy; and/or to presume reasonable force-justifying fear of death, rather than requiring those who use deadly force in self-defense to provide proof of that reasonable fear. The Florida law also includes an immunity provision, that, in essence, frequently switches the burden to the police/prosecution to find evidence that a use of deadly force was not self-defense.

Links to Laws

A post on The Atlantic Wire by ProPublica’s Cora Currier lists 23 states with “Stand Your Ground” laws and includes links to statutes from those states. The link selection is a little uneven, in that they are mostly links to sessional enactments, but some are Code links, etc.

Law Review Articles

Florida’s “Stand Your Ground” Law, Specifically

• Elizabeth B. Megale, Deadly Combinations: How Self-Defense Laws Pairing Immunity with a Presumption of Fear Allow Criminals to “Get Away with Murder,” 34 American Journal of Trial Advocacy 105 (2010).
  This article predicts difficulties from the interaction of two aspects of the Florida statute: its creation of a presumption of reasonable fear and its grant of immunity from prosecution for justifiable use of force (which allows investigation, but permits arrest only where probably cause can be found that the use of force was not justified).
• Christine Catalfamo, Stand Your Ground: Florida’s Castle Doctrine for the Twenty-First Century, 4 Rutgers Journal of Law & Public Policy 504 (2007).
  Provides detailed history of Florida’s common law castle doctrine, and describes the ways in which Florida’s ‘Stand Your Ground’ law (which purported to codify common law) departed from it: namely the broader removal of the duty to retreat when outside the home and the presumption of a reasonable fear of harm.
• Zachary L. Weaver, note, Florida’s ‘Stand Your Ground’ Law: The Actual Effects and the Need for Clarification, 63 University of Miami Law Review 395 (2008).
  The background section of this article identifies many of the states that have enacted Florida-like statutes, and identifies several that pointedly have not.

“Castle Doctrine” in General

• Jeannie Suk, The True Woman: Scenes From the Law of Self-Defense, 31 Harvard Journal of Law & Gender 237 (2008).
  Evaluates the doctrinal developments in self-defense law as they embed concepts of gender, the home, and criminality. Background in the article usefully ties the current laws to the earlier attacks on the duty to retreat emerging from concerns about battered women.
• Benjamin Levin, note, A Defensible Defense?: Reexamining Castle Doctrine Statutes, 47 Harvard Journal on Legislation 523 (2010).
• David Kaplan and Sue Wimmershoff-Caplan, Postmodernism and the Modern Penal Code v. the Fourth, Fifth, and Fourteenth Amendments — And the Castle Privacy Doctrine in the Twenty-first Century, 73 UMKC Law Review 1073 (2005).
  A rather fervent defense of the castle doctrine, at least in the home-bound arena.