Self Defense Laws

The extent to which a person can legally defend himself or herself from an attacker has been a subject of great controversy throughout U.S. history. Legal scholars and lawmakers have long debated the most accurate way to differentiate assault from self-defense. For example, if a man is attacked by a mugger on a city street, should he be allowed to combat that attack with force, or should he first attempt to retreat? If retreat is impossible, how much force should he be permitted to use? What if he winds up killing his assailant? Is that an example of self-defense, in which the man is legally protected? Or could the man be charged with manslaughter, or even murder?

During the late 19th and early 20th centuries, the Supreme Court grappled with questions such as these. In a series of cases, it examined an attack victim's "duty to retreat" as a primary option: Should a person have to attempt to retreat before forceful self-defense could be legally justified? Eventually, in a 1921 decision, the court ruled that there should be no duty to retreat; victims of attack almost always should be allowed to defend themselves. Many states, however, continued to enforce a duty to retreat, with some making an exception for those attacked while in their own homes.

But starting in 2005, more than a dozen states began to pass expanded self-defense laws that loosened many of the restrictions regarding attack victims' right to defend themselves. The new laws--which were heavily promoted by the gun rights group the National Rifle Association (NRA)--make it possible for residents of those states to use deadly force to combat any attack or threat, eliminating the duty to retreat, even in a public place.

Those new laws have caused a stir among many gun control advocates, who argue that they will create a "Wild West" mentality in which people will settle disputes with gunfire and bloodshed. However, supporters of the new laws maintain that they provide vital legal protections for those who cause injury and even death in the name of self-defense.

Are the new self-defense measures necessary to help would-be victims defend themselves? Or do they go too far in awarding extra legal protection to those who resort to the use of force in defending themselves?

Proponents of armed self-defense say that the duty-to-retreat laws still in place in many states are too friendly to criminals and inadequately protect law-abiding Americans. Self-defense should be legal in all cases, in all environments and at all times, and the new laws ensure that right, they contend. Supporters further assert that the laws are based on common sense: If a criminal attacks a person, that person should be able to respond in kind without having to retreat first, proponents maintain.

Opponents, however, say the new laws could instill in Americans a "shoot first, ask questions later" frame of mind when it comes to self-defense. Without the duty to retreat, public in- stances of violence will likely increase, and as long as that violence can be classified as self-defense, they will all be perfectly legal, critics maintain. Finally, critics say that there was no need to expand the self-defense laws so drastically, since the old ones worked just fine.

Supreme Court Grapples with 'Duty to Retreat'

The history of self-defense laws in the U.S. is tied to the continually evolving notion of a victim's "duty to retreat." The duty to retreat is a legal idea that is rooted in British common law, which the U.S.'s founding fathers used as a template in the design of their own legal code following their Declaration of Independence from Britain in 1776. In essence, it states that if a person is attacked or threatened, that person is not legally protected if he or she decides to fight back. Instead, that person must first attempt to retreat from the situation. If retreat is impossible, or if the person under attack is vulnerable to immediate, grievous bodily harm, then that person can fight back, but only at a level commensurate with the initial threat.

In the late 19th and early 20th centuries, several rulings by the Supreme Court attempted to define a victim's duty to retreat. The 1895 case Beard v. U.S. centered on an Arkansas man identified only as Beard and his three nephews, who publicly boasted of their plan to steal a cow from Beard's farm and kill Beard if necessary. One afternoon, the nephews were sneaking onto the farm to carry out their plan when Beard spotted them. He pointed a rifle at his nephews and ordered them to leave his property. Will Jones, the oldest of Beard's nephews, began to draw a pistol from his pocket, but before he could withdraw it completely, Beard hit him on the head with his own gun, killing him.

An Arkansas court convicted Beard of manslaughter and sentenced him to eight years in prison. The judge in that case maintained that Beard had a duty to retreat from the three nephews, even though they were trespassing on his property. Beard appealed, however, and eventually the Supreme Court heard the case. In a unanimous opinion overturning the eight-year sentence, the Supreme Court ruled in favor of Beard's right to defend his property without the duty to retreat. According to the court, Beard was "entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as...were necessary to save his own life, or to protect himself from great bodily injury."

The following year, the Supreme Court upheld the life imprisonment of a 14-year-old boy named Alexander Allen who had killed a fellow teenager during a dispute. Because the dispute occurred while they were on public property, a trial court ruled that Allen had a duty to retreat when confronted by the other teenager. In Allen v. U.S., the Supreme Court agreed with that ruling. The distinction between the Supreme Court's Beard ruling and its Allen ruling is that the events of Beard took place on private property, nullifying the duty to retreat.

In 1921, the Supreme Court in another major self-defense case, Brown v. U.S., overruled the notion that a victim has a duty to retreat if attacked in a public place. The case involved an altercation between two men--one identified as Brown, the other as Hermis--with a previous history of violence towards each other. During their final altercation, Hermis drew a knife and attacked Brown, who responded by firing four pistol shots at his assailant, killing him.

The Supreme Court ruled that the shooting was in self-defense and therefore did not qualify as murder. Because Brown was threatened with grievous bodily harm--even though he was in a public place and not on his own property--he did not have a duty to retreat. Rather, the court ruled, Brown had the right to stand his ground and fight off his assailant.

Indeed, Justice Oliver Wendell Holmes, writing for the 7-2 majority, called into question the entire idea of a duty to retreat. "Detached reflection cannot be demanded in the presence of an upturned knife," Holmes wrote in what has become one of his most famous legal opinions. "Therefore," he continued, "it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him." In other words, according to Holmes, victims of assault should be allowed to fight back, regardless of the situation.

The 'Castle Doctrine'

Although the Supreme Court's decision in Brown v. U.S. would seem to have clearly defined the parameters of the "duty to retreat," most states still define that duty in different ways. Some states continue to uphold the duty to retreat with laws that require victims of an attack to consider retreat as their primary mode of defense. In those states, it is permissible to fight back only against a potentially lethal attack if escape is not easily and safely possible.

In at least 17 states, however, there are laws that make an exception to the duty to retreat if the attack occurs in the victim's home. Such laws are commonly referred to as the "castle doctrine," based on the common saying, "A man's home is his castle." If a state's laws include a version of the castle doctrine, a person who is confronted by an intruder while inside his or her own dwelling can legally use deadly force in the name of self-defense. In certain states, that right is expanded to include a person's vehicle and, in some cases, even his or her place of business.

In July 2006, Michigan became the latest state to adopt a version of the castle doctrine, which will go into effect in October 2006. After that date, anyone whose home is broken into does not have a duty to retreat from the intruder. Homeowners are permitted to react by using deadly force if they reasonably believe that the intruder has an intention to cause harm to someone within the dwelling. In other words, the duty to retreat in such a scenario is eliminated.

he law did not pass without controversy. Pro-gun control groups such as the Brady Campaign to Prevent Gun Violence publicly stated their opposition to the bill during each step of the legislative process. Indeed, the bill's language was toned down considerably before it received approval in Michigan's House and Senate. According to David Gorcyca of the Prosecuting Attorneys Association of Michigan, the bill as originally conceived was "too expansive." He continues, "It was like, if someone is on your property, and you feel you needed to defend your property or person without a reasonable fear of apprehension, bodily harm or death, you could literally shoot first and ask questions later." His organization opposed that version of the bill, but supported the version that was eventually signed into law by Gov. Jennifer Granholm (D).

Expanded Self-Defense Laws in Florida and Elsewhere

In April 2005, Florida Gov. Jeb Bush (R) signed an expanded self-defense law which, according to observers, surpasses even the castle doctrine in scope. Alternately dubbed the "stand your ground" law by supporters and "shoot first" law by opponents, Florida's new law gives unprecedented, broad legal protection to attack victims who use deadly force in the name of self-defense.

The controversial law--which was passed overwhelmingly in the state's House and unanimously in its Senate--eliminates the duty to retreat in all cases of an attack or threat, even if that attack or threat happens in a public place. Instead, a person threatened with attack in public "has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony." Furthermore, people acting in self-defense are not liable if they accidentally injure or kill a bystander in the act of defending themselves.

According to the law, if a person is physically attacked, prosecutors must presume that the person under attack feared for his or her life, therefore justifying any type of violence used in self-defense, including deadly force. The attacker need not be armed to be considered a threat; and the person acting in self-defense cannot be arrested, prosecuted or otherwise detained for his or her actions, and also cannot be charged in a civil suit.

Finally, the new self-defense law in Florida expands the parameters of the castle doctrine itself. Floridians now have the right to use deadly force on anyone who unlawfully and forcefully intrudes into their homes or vehicles. Previously, self-defenders had to prove that they feared for their safety in such a situation before the use of force became justified as self-defense.

Florida's new law was heavily supported by the NRA, the U.S.'s largest gun rights nonprofit organization, and one of the most powerful lobbying groups in the country. The NRA holds the official position that Americans have a right to bear arms as defined by the Second Amendment to the Constitution. It argues that Florida's new self-defense law protects responsible gun owners who use their weapons responsibly, with the sole intent of protecting themselves and their families. The NRA's Florida lobbyist, Marion Hammer, heavily promoted the expanded self-defense bill among Florida lawmakers, and was standing by Bush's side when he signed the bill into law.

Since the Florida law passed, the NRA has worked to promote similar legislation in many other states. According to the NRA's executive vice president, Wayne LaPierre, the organization has thus far largely targeted politically conservative states in its drive to spread the law across the country. "There's a big tailwind we have, moving from state legislature to state legislature," he said. "The south, the midwest, everything they call 'flyover land'--if John Kerry held a shotgun in that state, we can pass this law in that state," LaPierre continued, referring to the Democratic senator from Massachusetts who lost the 2004 presidential election to President Bush (R).

Since Florida's law took effect in October 2005, the NRA has facilitated the creation of similar self-defense laws in 13 other states, of which all but one (Michigan) voted for Bush in the 2004 presidential election. Additionally, a 14th state, Alaska, passed an expanded self-defense bill, which Gov. Frank Murkowski (R) is expected to sign into law before his term ends in November 2006.

Additionally, the NRA says it has been promoting a version of the law in eight other states. Included among those states are Minnesota and Pennsylvania, which voted Democratic in the 2004 election, as well as Ohio, which was a "swing" state and the site of a particularly heated battle between Bush and Kerry in 2004, with Bush eventually winning by a slim margin.

The law has been a source of controversy in most states in which it has been introduced, however. In Michigan, a group of demonstrators, arguing that the new self-defense law would increase gun violence, protested the law by wearing orange T-shirts that read "Innocent Bystander." A Kentucky judge, reviewing the terms of the newly signed law, publicly stated that the law was confusing and ill-written. "I'm not quite sure that the drafters had even a marginal knowledge of criminal law or Kentucky law," circuit judge Sheila Isaac said. And in Florida, where the self-defense law was initially passed, a rash of shooting deaths in 2006 has been partially blamed on the new law, and some who originally supported the law have said they are reconsidering their stance.

There Should Be No Duty to Retreat, Supporters Argue

Supporters of the expanded self-defense laws typically refer to them as "stand your ground" laws. By eliminating the duty to retreat, supporters say, Americans can better defend themselves and their loved ones in potential crises. The duty to retreat is particularly ridiculous, proponents maintain, in cases involving an intruder breaking into a person's house. "A person's home is their castle," says Michigan State Rep. Shelley Goodman Taub (R). "I have a tremendous problem with people who are in their own home and have no way of defending themselves. It's not shoot first. It's protecting your home and family."

Supporters argue that states that require victims to retreat first rather than defend themselves are unfairly protecting criminals at the expense of their victims. Many proponents label the duty-to-retreat laws as too "criminal-friendly," arguing that they take the right of self-defense away from decent Americans. The new laws "make it very clear that the good guy has the advantage, not the bad guy," says the NRA's LaPierre. "If you're going to empower someone, empower the crime victim." The expanded self-defense laws restore that power to law-abiding Americans, backers assert.

In states that have duty-to-retreat laws, people who cause injury or death while defending themselves against a criminal are too often charged with crimes themselves, supporters say. In other words, in a duty-to-retreat state, a situation could arise in which "[s]omeone breaks into your house, you shoot them and they sue you" says law enforcement instructor Jerry Wrage. Supporters say that such cases happen all too frequently in states that retain the duty-to-retreat law. The expanded self-defense laws prevent those unfair scenarios from occurring, they maintain.

Proponents also often point to the 1921 Supreme Court decision Brown as proof that states have a legal obligation to eliminate the duty to retreat. Supporters often quote Holmes's famous "upturned knife" statement to emphasize that the duty to retreat is a poorly reasoned legal principle that should be abandoned. Many supporters also note that gun ownership is legal in the U.S., yet in many states, restrictive self-defense laws severely limit their responsible use as a method of protection against criminals.

The duty to retreat should also not be required in public places, backers assert, and they applaud the new state laws that eliminate that requirement. "These laws send a more general message to society that public spaces belong to the public--and the public will protect [public places] rather than trying to run into the bathroom of the nearest Starbucks and hope the police show up," says David Kopel, the director of the conservative think tank the Independence Institute. People should have the right to defend themselves at all times, without having to worry first about the duty to retreat, backers maintain.

Supporters also dispute critics' assertions that the laws will create a culture in which people have the right to "shoot first and ask questions later." Self-defense is a far more serious matter than that, supporters say, and the new laws in no way promote reckless gunslinging. "If you use your pistol to shoot

Finally, backers of the new laws argue that they simply make sense; in fact, while signing Florida's new law in 2005, Gov. Bush said that the duty to retreat "defies common sense." If someone threatens you with violence, you should be legally able to respond in kind, without having to worry about retreat, they argue. "Why are we even having this debate?" asks Pittsburgh Tribune-Review columnist Dimitri Vassilaros. "How could anyone actually believe that you should not defend yourself until you've run out of room to flee? A duty-to-retreat law is the ultimate abasement of man."

Opponents Call New Laws Flawed, Unnecessary

Opponents of the new laws usually refer to them as "shoot first" legislation rather than use the term "stand your ground" to describe them. They also have other terms for them: The editorial board of the Daytona Beach News-Journal called Florida's self-defense law a "virtual get-out-of-jail-free card," and many other opponents use the phrase "license to kill" to describe the laws.

Florida State Rep. Dan Gelber (D) says that the new law is "almost like a duel clause" that will allow anyone who feels threatened, at home or in public, to whip out a pistol and shoot someone without fearing any legal repercussions. Many opponents of the new self-defense laws argue that they could instill a "Wild West" mentality throughout the U.S., one in which people would be more prone to use deadly force in situations that do not necessarily warrant it.

Opponents of the expanded self-defense laws maintain that they give too much legal protection to people who use deadly force in self-defense. "Any time you use deadly force, you have to realize the enormity of the consequences," says John Peck, the district attorney of Westmoreland County, Pa. "When a person kills a person, they're acting as a police officer, the judge and the jury."

Other critics of the new self-defense laws argue that the law could instill in the public a tendency to respond to any perceived threat with violence, when the best possible way to respond to such a threat is still to retreat, if at all possible. Those critics maintain that people could easily use the new self-defense laws irresponsibly or carelessly, since many gunowners are not trained to respond to threats in a proper manner. "What bothers me [is], if I see a shadow, I...may shoot it," says Florida State Rep. Tommie Brown (D). "Citizens are not law enforcement officers; we have not been trained; no one has checked our psychological profile. It raises a number of questions."

Additionally, many of the new laws are poorly written and reasoned, critics say. Legal scholars have reserved particularly harsh criticism for the expanded self-defense laws in Georgia, Florida and Kentucky. The laws suffer from a lack of concrete language, such as an exact definition of what a "fear of grievous bodily harm" entails, opponents allege. Proving that someone feared for his or her life when acting in self-defense is tricky to do in court, critics say, making the laws as written nearly useless.

Many have also criticized the laws for expanding the elimination of the duty to retreat into public places. Some of those opponents say that there should not be a duty to retreat while in one's own home; however, the extended version of that law becomes untenable when it widens its scope "to include pretty much anywhere a person might happen to wander," writes Michelle Cottle in Time. "Some drunk spoiling for a fight at your favorite bar? Don't 'retreat' to another barstool. Flash the .44 Magnum in your shoulder holster and ask the punk if he feels lucky," she continues.

Other say the new laws go too far in other ways. For example, critics have cited the provision in many of the new laws that waives a self-defender's liability if he or she inadvertently injures a bystander while responding to a threat. "If a person is aiming his gun at a potential assailant but hits a 5-year-old girl instead, he still can't be arrested or prosecuted--no matter how reckless he was," writes the editorial board of the Daytona Beach News-Journal.

Finally, opponents have deemed the laws unnecessary. Americans have always had the right to use deadly force if they are threatened with an immediate and realistic threat to their own lives, supporters note. Additionally, many states had some version of the castle doctrine already in place before the wave of new laws began being passed. And the idea that jails are filled with people who were charged with assault or manslaughter simply for defending themselves from attack is not true, critics maintain. In short, says Zach Ragbourn of the Brady Campaign to End Gun Violence, the expanded self-defense laws are attempting to "fix a system that isn't broken. People aren't being thrown into jail for legitimate self-defense. There's no crisis here."

Spreading the New Self-Defense Laws Across the U.S.

Representatives from the NRA say they plan on lobbying at least eight states in 2007 to adopt an expanded version of the self-defense law, with the eventual goal of reaching all 50 states. Observers say that the goal is potentially attainable due to the NRA's current status as perhaps the most powerful lobbying organization in the country. "With Republicans running Washington, cowed Democrats are afraid to utter the words gun control even in the privacy of their homes," Cottle writes.

Meanwhile, many of the expanded self-defense laws face legal challenges and popular opposition. Observers say that formal legal reviews of the laws are likely in several states. Meanwhile, the Brady Campaign to Prevent Gun Violence is actively opposing the laws through its Web site and in other media.

In mid-2005, the Brady Campaign launched an advertising campaign warning tourists about the potential dangers of Florida's expanded self-defense bill. "Thinking about a Florida vacation?" the advertisement reads. "A new law in the Sunshine State authorizes nervous or frightened residents to use deadly force." Florida makes a lot of money from its tourism industry.

Meanwhile, people on both sides of the debate have proffered different statistics to attempt to prove that the new law has either worked or failed. Supporters of the law note that Florida's crime rate is at one of its lowest points in several decades. Opponents, meanwhile, say that Florida still has a high rate of violent crime, ranking among the top states in the U.S. in that category.

Of course, according to some legal experts, the new self-defense laws in Florida and elsewhere might be largely symbolic, part of the ideological battle between the gun control and gun rights crowds. Indeed, in the southern states in which the new laws have made the greatest headway, legal experts assert that nothing has really changed. "In the south," says Gary Kleck, a professor of criminology at Florida State University in Tallahassee, "they more or less gave the benefit of the doubt to the alleged victim's account" even before the new laws passed. "It's inconceivable to me that one in 100 Floridians could tell you how the law has changed."

Sources:

Bousquet, Steve. "The Shoot First State? Ads Warn About Law." St. Petersburg Times, September 29, 2005, www.sptimes.com.

Cottle, Michelle. "Shoot First, Regret Legislation Later." Time, May 9, 2006, 80.

Elvin, Al. "Senate Bill Creates Self-Defense Debate." Oakland Press, April 16, 2006, theoaklandpress.com.

Hunt, David. " 'Stand Your Ground' Proposal Triggers Gun-Law Debate." Pittsburgh Tribune-Review, May 30, 2006, www.pittsburghlive.com.