Thoughts on self-defense and “Stand Your Ground”

This post is a follow-up to a brief conversation that took place on Twitter. 140-character chunks are really not a suitable venue for such a touchy topic.

Before I go into my take on this topic, let me put out the standard disclaimer: I am not a lawyer, a cop, or any sort of legal expert. However, for several years when I lived in Ohio, I did have a Concealed Handgun License, and have spent many, many hours on classes, training, and personal reflection regarding different situations where I might use (or not use) deadly force, and whether it would have been legally justifiable as self-defense. My statements in this post will be based on Ohio law that was current as of around 2008. Different State laws may have different details, even if the overall picture is fairly close to what Ohio had. My memory of the details might also be a bit hazy, since I’ve been living in Canada for quite a while now, and no longer own any guns.

First, the legal stuff. If you use deadly force, you’re almost certainly going to face criminal charges and wind up on trial. Self-defense is an “affirmative defense”, which carries a nasty meaning: Instead of “innocent until proven guilty”, you’ve just confessed to committing murder (and entered a Guilty plea, if I remember correctly), and the burden of proof is on YOU to convince a jury that it was justified as self-defense. Reasonable doubt is now against you, and if you fail, there’s no second chance (other than through the appeals process.)

There are several requirements for a self-defense claim:

  • You must not have helped to create or escalate the situation that led to the use of deadly force. If, for example, you get into an argument, then it moves to pushing, fists, and so on… back the hell off. Even if the other person introduces deadly force first, and you’re technically defending yourself at that point, you’re still guilty, legally speaking. I have no idea how George Zimmerman got off in the face of this point, but maybe Florida’s laws were different. There was a ton of evidence showing that the police told him to back off, and he pursued Trayvon anyway. George should be in prison right now, based on that alone.
  • You must be in reasonable fear of death or serious harm (rape, critical injury, etc.) You don’t have to wait for someone to shoot first, so to speak, but you can’t just employ deadly force against someone who is yelling at you, either. The “reasonable” part is tricky, because it’s different for every person, taking into account things like disparity of size and strength between the attacker and defender, number of people involved, how things escalated, etc.
  • You cannot have been commiting a crime at the time that the situation broke out. If you’re in an illegal gambling house, dealing drugs, breaking and entering, or whatever, you no longer have a right to a legal self-defense claim. Even if you are forced to defend yourself with deadly force, you’re probably going to be convicted as a result.
  • Duty to retreat. Here’s where the various “Stand your Ground” or “Castle Doctrine” laws come into play; they remove the duty to retreat in some or all situations. However, where duty to retreat still applies, you have to make an effort to remove yourself from the area before employing deadly force. You’re only justified in a self-defense claim if you tried to leave, and the attacker pursued you anyway. In a state with full “Stand your Ground” laws, this requirement doesn’t exist. Anywhere you have a legal right to be, you also have a legal right to defend yourself IF all of the other conditions apply. That’s not to say that you shouldn’t try to remove yourself from the situation, if you can safely do so, but it’s no longer a legal requirement. If a situation develops / escalates quickly, you may not have an opportunity to leave without putting yourself in further danger, and that’s the reasoning behind removing the duty to retreat.

It’s also permissible to act in defense of another person, so long as they would have been justified in using deadly force themselves, according to all of these same requirements. However, where strangers are involved, you have no way of knowing whether they escalated the situation or were committing a crime, which makes it very risky (legally) to intervene in an attack on someone else.

Because a jury trial is involved, many of these points are subjective. Depending on what other evidence is available, it may literally come down to how convincing your story is, and whether the jury believes you. That’s scary as hell, and should make anyone think twice before they start shooting. Don’t overreact to mild, potential threats. Think through scenarios in advance to train yourself to react correctly when the adrenaline hits. Practice your awareness and avoidance so you have plenty of time to see a potential threat coming. Don’t put yourself in dangerous positions in the first place, if they can be at all avoided. Be noisy as hell; attract attention before the situation explodes, if you can. If the attacker continues to pursue you, at least there will be witnesses to help back up your story later. None of this changes, regardless of whether guns are involved.

There is one point legal point which I feel is ridiculous in some states, Florida included, and that’s an “immunity from prosecution” clause. Zimmerman was originally not even arrested after his shooting because of such a law. It’s a chicken or egg problem, though: If you use legally justified deadly force, you can’t be put on trial. How the hell do you prove legal justification without a trial? Everyone should have to prove self-defense in a courtroom, if they’ve used deadly force on a person (whether it’s a shooting, or any other type of situation.)

I’ve seen some people make glib comments like “I was afraid, so I stood my ground and started shooting”, which makes light of a very serious topic. Regardless of your feelings about guns and their owners, deadly force is no joking matter.

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About Dave Wyatt

Microsoft MVP (PowerShell), IT professional.
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