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How Do Stand Your Ground Laws Change Existing Law?

ALECs model Stand Your Ground law and the Florida law on which it was based contain seven key components that distinguish them from traditional self-defense doctrine. Some states have adopted all seven elements, while others have adopted varying combinations of them. For the purposes of this report, a state is only considered a Stand Your Ground state if its statute allows a person to use deadly force e.g., shoot someone anywhere the shooter has a right to be, even when there is a clear and safe opportunity to avoid a dangerous situation.

Allowing People to Stand Their Ground in Public

Stand Your Ground states give shooters the right to use deadly force even when there is a safe opportunity to retreat, as long as they are in any place they have a right to be. An additional three states which are not classified as Stand Your Ground states for the purposes of this report expand the Castle Doctrine only to the shooters vehicle,Missouri: 2007 Mo. SB 62; Ohio: 2007 Ohio SB 184; Wisconsin: 2011 Wis. ALS 94. allowing a driver to shoot someone when threatened in his or her car instead of simply driving away.

Permitting Deadly Force in Defense of Property

At least nine Stand Your Ground statesAlabama: Code of Ala. 13A-3-23(a)(3); Arizona: A.R.S. 13-411(A); Florida: Fla. Stat 776.031, 776.08; Georgia: O.C.G.A. 16-3-23(3); Kansas: K.S.A. 21-3212, 21-3213; Kentucky: KRS 503.080(2)(b); Nevada: Nev. Rev. Stat. Ann. 200.120(1); Oklahoma: 21 Okl. St. 643(3); Texas: Tex. Penal Code 9.42. have statutes that allow a shooter to kill a person to defend property, even if no one is in physical danger and, in at least one state, even if the perpetrator is fleeing.Texas: Tex. Penal Code 9.42(2)(B)

The statutes that allow deadly force to be used to defend property fall into two broad categories. Four states allow deadly force to be used to protect personal property, such as money, cell phones, and cameras.Kansas: K.S.A. 21-3212, 21-3213; Nevada: Nev. Rev. Stat. Ann. 200.120(1); Oklahoma: 21 Okl. St. 643(3); Texas: Tex. Penal Code 9.42 This can result in the legally justified killing of people even when the compromised property is of very little value.For example, in June 2012, Benito Pantoja stole $20.29 from the tip jar of a taco truck in Houston, Texas. The owner of the business chased Pantoja and shot him in the back, killing him. Pantojas death was ruled a justifiable homicide. See Yang Wang and Dane Schiller, Texas Justifiable Homicides Rise with Castle Doctrine, Houston Chronicle, July 2, 2012, http://www.chron.com/news/houston-texas/article/Killings-deemed-justified-are-on-therise-in-Texas-3676412.php#page-1. Six states permit the use of deadly force to prevent the burglary of an unoccupied building, even if the shooter does not own or control the building, and even if the shooter knows that no one is inside or otherwise in danger.Alabama: Code of Ala. 13A-3-23(a)(3); Arizona: A.R.S. 13-411(A); Florida: Fla. Stat 776.031, 776.08; Georgia: O.C.G.A. 16-3-23(3); Kentucky: KRS 503.080(2)(b)

Though proponents of these laws claim that they deter criminals, the evidence indicates otherwise. A recent study by Texas A&M University economists found that rates of burglary and robbery are unaffected by the passage of Stand Your Ground laws.C. Cheng and M. Hoekstra, Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine, Texas A&M Department of Economics, 29 May 2012, available at http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf. Meanwhile, as this report explains, states that have passed these laws have experienced increased homicide rates.

Creating Presumptions that Shootings are Lawful

Beyond expanding the Castle Doctrine to apply outside the home, the Stand Your Ground laws in 14 states also alter traditional doctrine by creating a legal presumption that shooters in certain locations, such as their home or vehicle, are justified in their use of deadly force.Alabama: Code of Ala. 13A-3-23(a)(4); Arizona: A.R.S. 13-411(C); Florida: Fla. Stat. 776.013; Kansas: K.S.A. 21-3212a; Kentucky: KRS 503.055; Louisiana: La. Rev. Stat. Ann. 14:19(B); Michigan: MCLS 780.951; Mississippi: Miss. Code. Ann. 97-3-15(3); North Carolina: N.C. Gen. Stat. 14-51.2(b); Oklahoma: 21 Okla. Stat. 1289.25(B); Pennsylvania: 18 Pa.C.S.A. 505(b)(2.1); South Carolina: S.C. Code Ann. 16-11-440; Tennessee: Tenn. Code Ann. 39-11-611(c); Texas: Tex. Penal Code 9.31. In two states Arizona and Texas these presumptions apply everywhere.

Under traditional American legal principles, a defendant is presumed innocent and the governments prosecutors are required to convince a jury beyond a reasonable doubt that the defendant committed the crime in question.

Layered on top of this exacting beyond a reasonable doubt standard, Stand Your Ground presumptions are often effectively irrefutable. If the victim is dead, and there are no other witnesses to contradict the shooters claims, the presumption forces authorities to take the shooter at his or her word, regardless of how unlikely and unsubstantiated the shooters version of events may be. Additional evidence may be impossible to obtain if the victim was killed and there were no eyewitnesses to or video recordings of the shooting.

Criminal Immunity, Part 1: Preventing the Arrest of Shooters

Typically, police can arrest a person if they have probable cause essentially, a reasonable belief that he or she has committed a crime, such as shooting another person.See, e.g., F. Andrew Hessick III & Reshma Saujani, Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. Pub. L. 189, 200 (2002); Elise Bjorkan Clare et. al., Twenty-Fifth Annual Review of Criminal Procedure: I. Investigation and Police Practices. 84 Geo. L.J. 717, 759-760 (1996). However, Stand Your Ground laws in six states forbid police from arresting a shooter who claims self-defense unless they find evidence to disprove the shooters claim.Alabama: Code of Ala. 13A-3-23(d); Florida: Fla. Stat. 776.032(2); Kansas: K.S.A. 21-5231(a); Kentucky: KRS 503.085(1); Oklahoma: 21 Okl. St. 1289.25(G); South Carolina: S.C. Code Ann. 16-11-450(B). This heightened standard for making an arrest and, in three states, for even detaining a suspectFlorida: Fla. Stat. 776.032(2); Kansas: K.S.A. 21-5231(a); Kentucky: KRS 503.085(1). puts a significant roadblock in front of law enforcement because police often start accumulating evidence by interviewing the shooter, and a shooter who is presumed to have acted lawfully has little incentive to cooperate with an investigation. If the victim is dead and there are no other witnesses, it may be impossible for the police to proceed with the investigation.

Stand Your Ground laws provide law enforcement with little guidance for how to evaluate the validity of a suspects self-defense claim,Reagan v. Mallory, 429 Fed. Appx. 918 (11th Cir. 2011) (Under Florida law, law enforcement officers have a duty to assess the validity of this defense, but they are provided minimal, if any, guidance on how to make this assessment.). and instead expose officers to the prospect of a wrongful arrest lawsuit for improperly detaining a suspect who has claimed self-defense.See, e.g., Reagan v. Mallory, 429 Fed. Appx. 918 (11th Cir. 2011). Additionally, as a recent Tampa Bay Times study demonstrated, courts have difficulty determining when arrests and prosecutions are proper, leading to confusion and inconsistent decisions.Floridas Stand Your Ground Law, Tampa Bay Times at http://www.tampabay.com/stand-your-ground-law/. This uncertainty creates a chilling effect, making police less likely to arrest, and prosecutors less likely to prosecute, shooters who claim self-defense.

Criminal Immunity, Part 2: Immunity Hearings

Stand Your Ground laws in eight states shield a shooter from criminal prosecution even after an arrest is made.Alabama: Code of Ala. 13A-3-23(e); Florida: Fla. Stat. 776.032(1); Georgia: O.C.G.A. 16-3-24.2, Kansas: K.S.A. 21-5231(a); Kentucky: KRS 503.085(1); North Carolina: N.C. Gen. Stat. 14-51.3(b); Oklahoma: 21 Okl. St. 1289.25(F); South Carolina: S.C. Code Ann. 16-11-450(A). State courts have interpreted these criminal immunity provisions to entitle a shooter to a pretrial immunity hearing a procedure during which each party presents evidence to a judge who determines if the shooter acted in self-defense. If the judge finds it more likely than not that the defendant acted in self-defense, the case is dismissed. Otherwise, the case proceeds to trial.See, e.g. Dennis v. State, 51 So. 3d 456 (Fla. 2010); Bunn v. State, 667 S.E.2d 605 (Ga. 2008); Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009); State v. Duncan, 392 S.C. 404 (S.C. 2011). Such immunity hearings alter traditional criminal procedure by requiring a judge to make factual determinations usually left to a panel of jurors.

The distinction between judge and jury can be significant. The jury with its breadth and diversity of opinions, experiences, and backgrounds generally determines what evidence to believe and disbelieve. Self-defense cases, in particular, often turn on only a few crucial facts.Jean K. Gilles Phillips & Elizabeth Cateforis, Self-Defense: Whats a Jury Got to Do with It?, 57 Kan. L. Rev. 1143 , 1168-1174 (2009). In most states, a jury must decide those facts. The immunity provisions found in Stand Your Ground laws effectively overturn this rule in self-defense cases by requiring factual disputes to be decided by a judge instead of by the people a jury of ones peers.In doing so, Stand Your Ground laws grant a unique status to claims of self-defense. There are many defenses e.g., necessity, entrapment, insanity that a defendant can raise at trial that would relieve him or her of criminal responsibility for actions that would otherwise constitute a crime. Until the advent of Stand Your Ground laws, self defense ranked among them, but these provisions single out self-defense and create a new type of procedural mechanism to determine whether self-defense applies.

The purpose of granting criminal immunity, according to Representative Dennis Baxley, who sponsored Floridas Stand Your Ground law in the Florida House of Representatives, was to protect law-abiding citizens from uncertainty while they wait for the government to decide whether to prosecute them for shootings they claimed were in self-defense.See, e.g., Ann ONeill, NRAs Marion Hammer stands her ground, CNN, April 15, 2012, http://www.cnn.com/2012/04/15/us/marion-hammer-profile/index.html. In practice, however, immunity provisions do not accomplish this goal. Shooters continue to wait sometimes years for a decision.For example, in one Florida case, Dennis Sosa Palma, who had fatally stabbed his brother during a 2010 brawl, waited more than two years for a favorable determination on immunity. David Ovalle, Miami-Dade judge tosses murder charge based on self-defense, The Miami Herald, August 17, 2012 at http://www.miamiherald.com/2012/08/17/2956670/miami-dade-judge-tosses-murder.html. In fact, if the shooter is prosecuted, the case may take even longer to resolve than under the traditional regime: If the judge decides the shooter is not entitled to criminal immunity, the case then proceeds to a jury trial, effectively lengthening the process and giving the shooter two trials instead of one. The difference is often not in the time spent awaiting a decision, but in whether the case is decided by a judge or a jury.

Civil Immunity: Prohibiting Civil Lawsuits

Our civil justice system provides avenues for injured parties to seek redress for harms they have suffered. Shooting victims and their families traditionally have the ability to file a civil lawsuit for monetary damages to compensate for injuries like lost wages, medical costs, and pain and suffering. To prevail, the injured party must generally show by a preponderance of the evidence (i.e., that it is more likely than not) that the defendants actions violated the law and caused harm. This standard of proof is much easier to meet than the exacting beyond a reasonable doubt standard in criminal cases and provides some measure of justice where the proof of guilt was substantial, but not strong enough to satisfy the criminal standard. Of the 22 Stand Your Ground states examined in this report, 19 effectively bar civil lawsuits against shooters protected by Stand Your Ground laws.

These so-called civil immunity laws take different forms. Eleven states have statutes that create immunity from all civil suits arising from the lawful use of force.Alabama: Code of Ala. 13A-3-23(d); Arizona: A.R.S. 13-413; Florida: Fla. Stat. 776.032; Kansas: K.S.A. 21-3219; Kentucky: KRS 503.085; Louisiana: La. Rev. Stat. Ann. 9:2800.19; Mississippi: Miss. Code. Ann. 97-3-15(5); North Carolina: N.C. Gen. Stat. 14-51.2(b), 14-51.3(b); Oklahoma: 21 Okla. Stat. 1289.25(F); South Carolina: S.C. Code Ann. 16-11-450(A); Texas: V.T.C.A. 83.001. Often referred to as blanket immunity, these provisions prevent all suits against the shooter, including suits brought by innocent bystanders who may have been injured. Eight states have more limited civil immunity provisions that shield the shooter only from suits brought by the intended victim and his or her survivors, implicitly allowing innocent bystanders to sue.Alaska: Alaska Stat. 09.65.330; Georgia: O.C.G.A. 51-11-9; Michigan: Mich. Comp. Laws 600.2922b; Montana: Mont. Code. Ann. 27-1-722; New Hampshire: N.H. Rev. Stat. Ann. 627:1-a; Pennsylvania: 42 Pa.C.S.A. 8340.2(a); Tennessee: Tenn. Code Ann. 39-11-622; West Virginia: W. Va. Code 55-7-22(d).

In addition, 12 states award attorneys fees and litigation costs to a shooter who prevails in a civil suit, creating a strong disincentive for a shooting victim to pursue justice in the civil system.Alaska: Alaska Stat. 09.65.330(b); Florida: Fla. Stat. 776.032 (3); Kentucky: KRS 503.085; Louisiana: La. R.S. 9:2800.19; Michigan: Mich. Comp. Laws 600.2922c; Mississippi: Miss. Code. Ann. 97-3-15(5); Montana: Mont. Code. Ann. 27-1-722(4); New Hampshire: N.H. Rev. Stat. Ann. 627:1-a; Oklahoma: 21 Okla. Stat. 1289.25(H); Pennsylvania: 42 Pa.C.S.A. 8340.2(b); South Carolina: S.C. Code Ann. 16-11-450(C); Tennessee: Tenn. Code Ann. 39-11-622(b). These cost-shifting provisions only work in one direction: They award attorneys fees if the shooter prevails, but not if the injured party prevails.

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