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Proliferation of "Stand your ground" laws

Following the lead of a 2005 Florida law (which I blogged about last year), many states are considering "stand your ground" laws regarding self-defense. Although the details vary, the fundamental premise of all these laws is that a person attacked by a violent felon need not retreat before using justifiable force, even when the attack takes place in a public space. A new article from the Christian Science Monitor looks at the debate over the new laws, and includes a quote from me:

"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, [research] director of the Independence Institute in Golden, Colo.

For historical perspective on the debate, see my article "The Self-Defense Cases: How the United States Supreme Court Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for Jurisprudence in the Twenty-first," from the American Journal of Criminal Law, which discusses, inter alia, how the Supreme Court addressed the "no duty to retreat" issue in the late 19th and early 20th centuries.

30yearProf:
The proposed statute in Kentucky appears to be more restrictive than the current caselaw. That's what happens when out-of-state (NRA in DC) lawyers try to write local laws.
A member of the Kentucky bar points out the unintended consequences: http://www.glocktalk.com/showthread.php?s=&threadid=506673
2.27.2006 1:08am
Defending the Indefensible:
It seems to me that if I can practice self-defense by avoiding a threat, it is preferable to killing someone. If a single police officer observes an armed and dangerous person, too, he or she will usually call for backup before confronting and attempting to make an arrest. The objective is to have sufficient force to subdue without the necessity of lethal force. To kill pre-emptively and without necessity is not defense.

This does not speak to the circumstance where a reasonable person would believe lethal force necessary to defend life, but otherwise I think the "duty to retreat" is incumbent.
2.27.2006 1:13am
Eugene Volokh (www):
Defending: Unless I'm mistaken, no state imposes a duty to retreat if you're in your own home, even if you can indeed protect yourself by running out of the house. In those situations, killing without "necessity" -- in the sense that you could avoid the threat by leaving your home -- is indeed quite permissible.

Do you think this view is wrong, and a person should indeed be barred from using lethal self-defense in his home if he could avoid the threat by running away from the home? Or do you think it's "necessary" to use lethal self-defense in the home but not outside the home, even when in either case one can avoid the threat by escaping?
2.27.2006 1:44am
Defending the Indefensible:
Prof. Volokh,

No, I don't think this view is wrong, and I would distinguish a home invasion from a threat encountered in a public space. To be ousted from one's home is to be deprived of its safety. You could not know if someone else might be lying in wait for you to be flushed out, for that matter. You should never be compelled to retreat away from safety.
2.27.2006 2:06am
Defending the Indefensible:
In reading the exchange above, I'm struck by the relationship to what could be considered a foreign policy preference as well.
2.27.2006 2:18am
Eugene Volokh (www):
Even in a public place, you may not know if someone else might be lying in wait for you. If you run away from a parking lot where you're being mugged, you might run into the mugger's confederate in the alley outside (and be less able to defend against him because you'll be running, and because you might be more surprised by him than you were by the mugger). Conversely, if you run away from the home that someone has just invaded, you're hardly retreating away from safety -- the home is unsafe, whereas the outdoors where "you could not know if someone else might be lying in wait for you" just might conceivably be unsafe.

Even as a rough generalization, I don't really see the argument that standing your ground at home is -- as an empirical matter -- significantly more likely to be "necessary" than standing your ground outside the home. Rather, the likely justification underlying the home/away distinction is that it's legitimate for you to stand your ground at home (even if flight would likely be relatively safe), but to stand your ground elsewhere (unless flight would be provably risky). That's the distinction that I don't buy, and that the backers of the "stand your ground" laws that Dave describes don't buy.
2.27.2006 2:29am
Defending the Indefensible:
Prof. Volokh,

I'm not sure what case law is most on point to this question, and I hope to be educated if you can cite some authority. I do think there is a general presumption that someone that does not want to fight should take reasonable steps to avoid fighting. So in the public space where retreat can be considered a reasonable possibility, some effort to retreat would be expected.

For all that you may say on some rational analysis of the situation that it might also be safer to retreat from your home, I don't think that in the circumstance most reasonable people would feel safer running, even putting aside, of course, the issue of other family members that may be in the home and requiring protection.
2.27.2006 2:44am
Fishbane (mail):
Eugene: Rather, the likely justification underlying the home/away distinction is that it's legitimate for you to stand your ground at home (even if flight would likely be relatively safe), but to stand your ground elsewhere (unless flight would be provably risky). That's the distinction that I don't buy, and that the backers of the "stand your ground" laws that Dave describes don't buy.

That's interesting. It seems to me that these proposals -- not that I disagree with them, in general -- are much more intended to advance a more subtle policy.

As far as the home/away distinction, I doubt you'd say that one had more rights away than one does at home. I also doubt that you'd find they were identical; I admit that I don't have case law on hand, but in terms of 4th amendment law, the home is much more "sacred" than, say, cars.

This, in fact, is a policy choice; we as a nation have decided that cars are not equal to domiciles, in terms of the rights of police power to intrude. (BTW, I find that wrong, from both a rights perspectice and a public policy perspective.)

So I guess I'd ask why, in terms of outstanding problems to be solved, lethal force over bar fights are the most interesting problem of the day?

/me, who once ran a mugger down and got my partner's wallet back, although it was not done with a gun. (And I do, in fact, have a different take on risk management these days... that was a long time ago.)
2.27.2006 2:55am
Visitor Again:
Anyone attacked anywhere should have the right to defend himelf by using reasonable force. One under attack can never be sure retreat is a safe or safer option, regardless of whether the attacker has confederates or not. It is the attacker who puts the burden on the victim of making critical decisions under pressure, and all benefit of doubt ought to be given by the law to the one attacked wherever he is.

Twelve years ago, when I was about 50, I was approached by a young man as I opened my car door in my Los Angeles aparrtment building's driveway. He said, Give it up, cuz. I didn't see any weapon on him; he had one hand in his pocket as if to indicate he had a weapon there. I amS slight, BUT so was he, and so I slugged him in the face, CATCHING HIM BY SURPRISE AND connecting hard enough to knock him down. As he got up to come at me, I opened the door of my car, which formed a barrier between us since another car was parked right next to mine, and yelled for help. At that point, he gave up and fled. If I[d had a weapon I would have used it on him, although I may have tried to avoid kiling him.

The cops told me I was well within my rights even though I could have retreated in the first place. If I had, I bet he would have gotten me from behind.
2.27.2006 5:42am
logicnazi (mail) (www):
Volokh, Defending: I think you are talking past each other.

Obviously in situations where one might be justified in using the stand your ground law any place where you are is unsafe (perhaps modulo justified beliefs that turn out to be mistaken). The argument that one should never be required to run from safety hence one shouldn't be required to run from home just doesn't make sense. As Volokh pointed out of course you are unsafe, otherwise the issue wouldn't come up. I think the implication of the original argument is not that the in fact the home is safe so one shouldn't run from it but rather that the home should be safe.

Defending: No it is not obvious that avoiding a threat is preferable to killing someone. This is the reason that the police are allowed to arrest criminals even though they know that the criminal is more likely to shoot them if they try to arrest him then if not. The police reinforcement argument just suggests that it is usually a good idea to try and have lots of firepower when you have to face the threat. However, it is surely not always preferable to wait until you have overwhelming firepower to face a threat. I personally think it is better that a single policeofficer who runs into a knifeweilding suspect in a alley don't have to run away just because they have no backup.

Also are the commenters in favor of these laws really claiming that there is some fundamental human right to shoot people who enter their home? So for instance if the only gun technology we had furnished guns that blew up destroying everyone in the room 1 out of 5 times and home defenders often ended up blowing up their wives and children as a result would you still think the government ought to guarantee this right? Could we move the percent of times the gun blows up arbitrarily close to 100 and we would still retain that right? If not then wouldn't studies who show that home defenders and their families are more likely to be shot undermine any claim of a right to home defense?
2.27.2006 7:13am
Kevin P. (mail) (www):
logicnazi: Interesting argument, but much better technology has always been available for several hundred years, so I fail to see how it is relevant. Are you trying to bring up the nuclear weapon strawman?

Dave K: Are the self-defense cases applicable to and binding upon the states?
2.27.2006 7:35am
Jim Barnes (mail):

Could we move the percent of times the gun blows up arbitrarily close to 100 and we would still retain that right?

No, we'd make better weapons.
2.27.2006 8:09am
PersonFromPorlock:
How about a more general rule, that anyone in the act of committing a felony (or maybe a violent felony) is rejecting the authority, and so the protection, of the law while doing so.
2.27.2006 8:17am
Anonymous Jim (mail):
I am generally in favor of people being allowed to protect themselves. Even absent laws like Florida's, I suspect that a jury would acquit in some cases based on the facts (e.g. "he had a gun and said he was going to shoot me so I shot and killed him"). My concern with such laws is that the average person with a weapon does not have the training that police officer's have in terms of making sure there are no bystanders. Further, most of them lack training to ascertain when the threat has passed and what do do in those instances. For example, if I am being mugged and I pull a gun and the assailant runs away, I do not have the right under these laws (do I?) to use deadly force on the assailant.
2.27.2006 8:21am
AppSocRes (mail):
Some Massachusetts history is relevant here, although I am not sure of the precise details. Within the last twenty-five years, the Supreme Court in the Commonwealth essentially eliminated the self-defense defense in homicide cases. As a result, in a very highly publicized case, a battered wife with a restraining order against her ex-husband, had her home invaded by the ex who eventually cornered her in the basement. She shot and killed him and was eventually found guilty of murder. The public revulsion at this miscarriage of justice was such that the General Court (our legislature) stepped in and legislated a self-defense justification that was pretty much a return to the very-reasonable Common Law standard (Except I'm not sure whether I could justifiably shoot a man who was trying to burn my house down under current Massachusetts law.) I believe the woman was released from prison, either with an early parole or a Governor's pardon. Someone more knowledgable than I about Massachusetts's legal history could probably provide details and rectify any errors in my account.
2.27.2006 8:44am
Huh:
Inevitably someone using deadly force against an assailant in a public place will harm an innocent bystander. Obviously, this won't happen every time or even most of the time. Given the fact that criminals generally don't attack others in crowded spaces, it could be exceedingly rare.

But I'm interested in what the law would be in a state that has a "stand your ground" law. How would the defender be treated if he seriously injured or killed another person while defending himself in a public area? Where there's no duty to retreat, is there a duty to safely defend oneself? To avoid harming others when defending yourself with deadly force? How would such a defender be prosecuted if at all? Or does the innocent victim have a tort claim against one who "negligently" defends oneself (I imagine any award would be difficult to collect, given the lack of insurance).
2.27.2006 9:19am
Andy Freeman (mail):
> I do think there is a general presumption that someone that does not want to fight should take reasonable steps to avoid fighting.

Hmm - another person who seems to believe that it takes two people to fight. It doesn't.

Why should I run to avoid an attacker? A legit answer is to get to a better defensive position. An illegit answer is to help the attacker.

The "presumption" helps attackers. What legit goal does it accomplish?
2.27.2006 9:26am
Bottomfish (mail):
Nonlawyer's question: "Battery is the remedy for an intentional and unpermitted physical contact with plaintiff's person by defendent...It reflects a basic right to have one's body left alone by others." (From an elementary book on torts.)

Well! We recognize a tort of battery. So if someone is coming towards me in a menacing fashion, so that battery (and probably assault) is imminent, why is it my responsibility to forestall battery by running away?
2.27.2006 9:31am
Ken Arromdee (mail):
Even absent laws like Florida's, I suspect that a jury would acquit in some cases based on the facts (e.g. "he had a gun and said he was going to shoot me so I shot and killed him").

Even if the jury acquits most of the time, the rest of the time you've ruined a man's life because he defended himself. And someone faced with a difficult self-defense situation isn't going to have it any easier with 'well, if I defend myself I have to take a gamble on the jury acquitting'. The stakes in losing the gamble are just too big.
2.27.2006 9:50am
dunno:

If you run away from a parking lot where you've been mugged, you might run into the mugger's confederate in the alley outside

Or you might run into David Bowie, or William Buckley, our your great aunt Betty. Is this really the likely contingent we're defending against with this law? Is there possibly a better remedy, then? (An autograph book?)
2.27.2006 10:25am
Houston Lawyer:
These laws primarily reflect a loss in confidence of the judiciary. People no longer trust the courts to apply reasonable standards in self-defense cases. People also don't trust prosecutors to exercise common sense, especially in cases where the perpetrator, now deceased, belonged to a protected class. Many times on TV I have seen that a man was shot and killed during an attempted burglary. When I see that the shooter and the burglar are of the same race, I am generally relieved, because I know there will be no prosecution for political purposes.
2.27.2006 10:46am
SteveW:
Put aside the legal issues. That's an exciting article. Consider this sentence from the article discussing Beard v. U.S.: "The three brothers attacked Beard, but in the struggle Beard disarmed them all without firing a shot." The three brothers, by the way, had pistols. That sounds like something from a modern movie with Matrix-like fight choreography.
2.27.2006 11:18am
Defending the Indefensible:
Ken Arromdee makes a very interesting point which I think partially bears on the distinction between defending the home and standing ground in public:

Even if the jury acquits most of the time, the rest of the time you've ruined a man's life because he defended himself. And someone faced with a difficult self-defense situation isn't going to have it any easier with 'well, if I defend myself I have to take a gamble on the jury acquitting'. The stakes in losing the gamble are just too big.

Consider that if a man breaks into your home and you shoot him, prosecutorial discretion or a reasonable jury should say that the shooter was not seeking a fight by being at home and being armed. But in a public space a higher level of scrutiny seems necessary at the very least because it is not to be assumed who was the aggressor, this must be established by evidence. An attempt to retreat does evidence innocence of intent to use violence, where standing your ground becomes a lot more ambiguous. What if it wasn't an attempted mugging by a stranger, what if it was a gang confrontation?

The travails of the court system are much to be concerned about, but if the circumstances are not so obvious to the police and prosecutor, what can you do? Should we just assume it was a righteous shooting without further investigation?
2.27.2006 11:27am
guest from TX:
The problem is that it is much harder to tell who is the aggressor in public confrontations. People who carry walk around with a more aggressive attitude than those who do not. (Studies? don't need no stinkin' studies) Anyone who has ever worked in a bar knows that aggressive people find trouble.

Ex. Bernie Goetz. Hero or zero - he admitted that he went out looking for trouble.

I would submit that this is the real reason people do not have the duty to retreat in their own homes.
2.27.2006 11:45am
Gordo:
logicnazi peripherally stated the real reason why we should discourage aggressive self-defense in public places, a reason Professor Volokh and Mr. Kopel are ignoring: a public place has other people in it, who might be collaterally harmed by the act. Obviously being attacked in a deserted parking garage is one thing, but should an individual have the ability to start firing away if he is mugged in the back of a municipal bus with lots of passengers in the front? I think not.

Any response, Professor Volokh? Mr. Kopel?
2.27.2006 11:52am
Joshua:
DtI and Ken Arromdee: In the end it all comes back to the old saying "Better to be judged by twelve men than to be carried by six."

On the other hand, DtI brought up a pretty big unintended consequence that may stem from SYG laws: Unless these laws expressly exclude the presence of rival gang members as a legitimate indication of an imminent threat, they would probably complicate prosecutions stemming from gang fights.
2.27.2006 11:58am
Jake:
guest from TX: I don't think the "asking for it" principle really works. Goetz might have been "looking for trouble" by riding the subway, but I don't think that gave anybody the right to rob him.

Similarly, I don't think that somebody who swaggers around in public places automatically forfeits their right not to be mugged.
2.27.2006 12:11pm
Jake:
Oh, and for what is probably a more accurate summary of the non-lawyer perspective on these laws, see here.

(sorry about the double post, but I couldn't edit my comment to get this in there).
2.27.2006 12:14pm
countertop (mail):
Gordo:

Whenever you fire your gun, you are responsible for each and every bullet. If you fire and miss your intended target, hitting instead an innocent bystander - you are no less guilty than if you randomly shot that person without any other justification.

A more complicated situation might arise if you were to shoot an assailant and the bullet passed through them eventually striking an innocent bystander behind them. That scenario, of course, is mostly the reason people use hollow point bullets: to expand and slow the bullet. I would argue that the shooter is still liable (certainly in a civil sense and most likely in a criminal sense) for shooting the innocent bystander. One of the four rules of gun safety is to "Know your target and what is behind it."
2.27.2006 12:15pm
AtackDuck (mail):
I see most of the posters have not bothered to read the Stand-Your-Ground laws. They all state that IF you reasonably fear for your life, or great bodily injury (or another person's) you may meet force with force, including deadly force. They do not say you may use deadly force indiscriminately (how does a bad guy "BG" running away present a danger to you?).

guest from TX: "People who carry walk around with a more aggressive attitude than those who do not. (Studies? don't need no stinkin' studies)."

Prove it. I carry most of the time and of the the others I know, we ALL are more careful to avoid confrontation and are more passive than those who do not carry, because we don't want to have to use the last option.
2.27.2006 12:17pm
Freder Frederson (mail):
If there is anything this country needs, it is another excuse for the "armed citizenry" to start blasting away in public places. You have amply demonstrated yourselves to be paranoid beyond belief by defending an absolutely indefensible assault on free speech under the absolutely ridiculous fantasy that the government is going to start hunting for gun owners by interrogating doctors and combing through their medical records.

The last thing we need is for people who are so afraid of the world around them that they think they need to carry a gun that they don't have to back down from a confrontation and will have a valid defense if the drop their "assailant".


[DK: Comments like this are going to be deleted. To start with, the comment offers nothing to advance the discussion, but simply states the writer's view in a highly emotional way. Second, and much worse, the comment is personally insulting and vituperative. Third, the comment is stupid because it claims that "You have amply demonstrated yourselves to be paranoid beyond belief by defending an absolutely indefensible assault on free speech..." To the contary, Prof. Volokh has criticized that particular assault on free speech (a Virginia propoal to bar doctors from pestering patients about gun ownership), while I've never written or said anything for or against that proposal. If the "you" to whom the commenter is referring is someone else, then the comment should say so, and in any case, the tone is utterly inappropriate, regardless of to whom the comment is directed. The appropriate tone for commenters is the civil, respectful, "agree-to-disagree" tone which attorneys are supposed to model for the public at large. Non-conforming comments will be deleted.]
2.27.2006 12:17pm
countertop (mail):
I guess I should add a finishing thought that if you can't control your weapon and that there is the risk innocent bystanders will be hit, it is entirely inappropriate to use a firearm.
2.27.2006 12:18pm
Joshua:
Slightly OT: The case of Starr vs. United States (cited by Mr. Kopel in his article that he linked in the original post) sounds like it would be perfect for the Cory Maye defense in their appeal of his murder conviction.
2.27.2006 12:19pm
Gordo:
That's nice, countertop. If I die because you started blazing away at a would-be-mugger on the subway, you'll get prosecuted.

But I'll still be dead. And no amount of prison time you get is worth that, or your wallet.

Your response will probably be "the threat of jail time will deter me from firing my gun at an assailant when the public might be in jeopardy."

Two problems with that. First, you might not know if there is "public" around in harms way. And, more importantly, people with guns in their pockets tend not to act in a dispassionate manner when confronted with hostility, unless they're robocop, I suppose. The evidence of this fact is too voluminous to need documentation, and you know it.
2.27.2006 12:20pm
Gordo:
Atackduck: If you are threatened by a mugger with a gun or a knife on a city bus, or on the New York Subway, do you have a right to start firing away in self-defense and possibly kill or injure bystanders?

That's why there is a distinction between defense in a public place and defense in one's home. It's very obvious.
2.27.2006 12:22pm
Gordo:
Atackduck: I'm glad you are so dispassionate. Tell that to the people who shoot guns off at drivers who cut them off on the L.A. freeways.

Most pit bull owners are quite responsible, and their dogs are safe. But pit bulls attract dog nuts.

Most gun owners are quite responsible, and use their guns safely. But guns attract gun nuts.
2.27.2006 12:26pm
PersonFromPorlock:
guest from TX:

People who carry walk around with a more aggressive attitude than those who do not.

Not true, at least in my case. When carrying, I find I'm much more careful not to be irritable than when I'm not. When the consequences are greater, so is the self-restraint.
2.27.2006 12:50pm
countertop (mail):
Gordo,

Aren't you a snarky one.


Your response will probably be "the threat of jail time will deter me from firing my gun at an assailant when the public might be in jeopardy."


Your also a wrong one.

My response would be the same as any other responsible and law abiding gun owner - I wouldn't fire my gun unless I was assure it was safe to and knew my target and what lay beyond it.



Two problems with that. First, you might not know if there is "public" around in harms way. And, more importantly, people with guns in their pockets tend not to act in a dispassionate manner when confronted with hostility, unless they're robocop, I suppose. The evidence of this fact is too voluminous to need documentation, and you know it.


Know your target and what is beyond it. Thats a pretty clear rule. If you can't follow it, you shouldn't be shooting your gun.

And, I would argue that beyond hollyowood movies 99.9999% of lawful gun owners are rather dispassionate and controlled when carrying a gun. My guess is you've never actually carried one, cause if you did you would have a difficult time not fully understanding the responsibility it places on you.


As to your "evidence of this fact is too voluminous to need documentation" statement:

Yes, I am perfectly aware of the facts. What they show -what I know - is that gun owners who legally own and carry guns are by and large one of the safest, most law abiding segments of society. In fact, the instances of them actually committing crimes while in possession of their guns is so low it borders on zero (I won't say its zero, cause you can always find a statistical outlier, but its awfully close to zero).

If you have evidence to the contrary, I would suggest it probably does need documentation.

Gordo, If your really so scared I suggest you direct your anger and concern at the average police officer who stands a much greater chance of going off half cocked and randomly committing an unjustified shooting, as we have seen with alarm regularity here in DC area the last few weeks (Never mind the epidemic of shootings over the last few years in Prince Georges County, MD).
2.27.2006 1:10pm
countertop (mail):
Gordo, your reliance on the actions of criminals to inform your opinion on the likely action of law abiding and responsible citizens strikes me as misplaced.


Tell that to the people who shoot guns off at drivers who cut them off on the L.A. freeways.


Not having ever been to LA, my impression is that this has been a phenomena solely limited to the actions of people who otherwise did not obey the law or own or possess their guns in any even remotly legal fashion?

If it was the opposite, if any of these idiots had a carry permit or even minimal firearms training (or simply had guns they pruchased legally) I would expect that the gun ban crowd would be standing from rooftops shouting that fact.

They don't, cause these are criminals with little regard for the law (brought on, in my mind, at least partly by a hopelessly corrupt police force).
2.27.2006 1:17pm
Gordo:
Most pit bull owners know the aewsome power of their dogs, and control it.

But pit bulls attract people who think dirfferently.

Most gun owners know the awesome power of their guns, and control it.

But guns attact people who think differently.

There'a fundamental difference between defending yourself with a gun in your home and defending yourself with a gun in public. It's called THE PUBLIC.
2.27.2006 1:37pm
AtackDuck:
GORDO: "Atackduck: If you are threatened by a mugger with a gun or a knife on a city bus, or on the New York Subway, do you have a right to start firing away in self-defense and possibly kill or injure bystanders?

That's why there is a distinction between defense in a public place and defense in one's home. It's very obvious."

For some reason you think that the first reaction to any situation is "SHOOT"! In fact, I have been trained to react exactly to this situation. It is called "proper reaction to the situation". If shooting is necessary, all shots must be absorbed by the target. If there is a chance that bystanders may be injured, then you should not shoot. If you can stop the attack by other means, do so. Of course, if it's Gordo who might be the backstop, go for it! ;~)

Explain how indiscriminate shooting is safe in my house but not in the street outside. Both are verboten in my book. However, proper defense of onesself anywhere is an inalienable right, even Gordo's.
2.27.2006 1:57pm
AtackDuck:
Gordo! "If you are threatened by a mugger with a gun or a knife on a city bus, or on the New York Subway, do you have a right to start firing away in self-defense and possibly kill or injure bystanders?"

So, what would Gordo do? or recommend?
2.27.2006 2:03pm
Steve P. (mail):
Steve W.-

Actually, Beard did fire off a shot, when one of the brothers said that Beard's shotgun wasn't loaded. Also, while all the brothers did have pistols, they weren't out yet when Beard got all Matrix-y on them.

That said, it's a pretty clear-cut case, even 111 years ago. There was plenty of evidence that they were coming to take the cow by force, had made public threats to kill him, and tresspassed after being told explicitly not to. We're talking poster child for self-defense. These laws Prof. Kopel is talking about will probably cause some situations that are closer to the line, but we can't know how often. All of these discussions are of hypotheses, which could happen, or might never happen. I personally don't carry a weapon and likely won't, but I'm still interested to see how this works out (so long as I'm not in the line of fire).


[From Kopel: Regarding some themes which have appeared in the comments above...


1. The "shooting an innocent bystander" scenario is the same one that has come up, incessantly, from opponents of Shall Issue laws for concealed handgun carry. In the 38 states that now have Shall Issue laws (including several states which require no permit, or which have discretionary permits which are issued fairly), the legislature has implicitly rejected the bystander scenario as the determining factor in public policy.


2. If there were shootings of innocent bystanders in states with Shall Issue laws, you would hear about them constantly from the gun prohibition lobbies.


3. Since the gun prohibition lobbies were wrong in their prediction that Shall Issue laws would lead to massive numbers of shootings of innocent bystanders, I am especially skeptical when the same dire warning is issued about Stand Your Ground laws.


4. For persons wondering how much controlling precedential effect The Self-Defense Cases have, the detailed answer is contained in the article; the short answer is, "these days, not much."


5. BTW, I taught as an adjunct at NYU Law School in 1998-99, but I'm not currently a professor.]
2.27.2006 2:24pm
Huh:
Re: My own innocent bystander question. I'm not using the possibility of a bystander getting shot by a defender as a reason to oppose "Stand Your Ground" laws. Future empirical studies in states with such laws will shed light on that issue. I'm simply wondering what redress such a bystander has when he is shot by another who is defending himself.

Bystander injury may not happen in significant numbers, but it must happen sometimes. I'm just wondering what follows. Does the shooter simply say, "Oops, I was defending myself. Sorry." ? A few of the posters above indicated that responsible gun owners would not shoot (or would aim extremely well) if others were around. Does this imply a negligence standard might apply? If so, how do the aggrieved collect from the negligent defenders? Or should the state grant tort immunity in those situations?


[DK: The Stand Your Ground laws do not, as far as I know, change tort liability regarding innocent bystanders. It's common for Stand Your Ground laws (including state statutes which were enacted before "Stand Your Ground" became the moniker) to eliminate, in most cases, the possibility of tort recovery by a criminal who is shot by a victim. As for innocent bystanders, the tort situation is unchanged. Same situation for home defense; you shoot a burglar with a high-powered rifle that penetrates your apartment wall and injures an innocent person in the next-door apartment. That scenario is, at the least, a plausible starting point for a tort case, with the result depending on jury's assessment of what constitutes negligence or recklessness. A similar analysis would apply to shootings in public places.


There is one implicit change which results from Stand Your Ground. Under some circumstances, violation of a statute can constitute negligence per se, and in most circumstances, violation of a statute is evidence of negligence. So if Stand Your Ground makes it lawful for the victim to shoot at the criminal, then the innocent third party who gets injured can still sue, but the third party will have to prove negligence based on the facts, rather than assert negligence per se.]
2.27.2006 4:38pm
B. B.:
I would think that they could make it more clear in the law that there is a recourse for the "innocent bystander" by explicitly stating that the Stand Your Ground law shall not be a defense to civil liability except as to the lawful target under the statute. They need to make sure the attacker can't turn around and sue you, but likewise if I'm shot by Johnny Sixgun and his itchy trigger finger blasting a mugger, I really ought to have a suit in negligence at the very least. The standard of care for discharge of a weapon involves knowing your target but also knowing what is beyond your target (due to the "the bullet goes until it is stopped" nature of bullets).

Any reason why they shouldn't add such a statement to the statute regarding civil liability? Might quell some of the dissent (though obviously not all of it, some will never be satisfied).
2.27.2006 5:07pm
John R. Mayne (mail):
I'm a prosecutor in California, where there is no duty to retreat, and a "Make my day" law for home invaders; you're presumed to be in fear for your life if someone busts into your home, so you can use deadly force.

I view it as a substantial positive not to have a duty to retreat. If you do have a legal duty to retreat, it becomes much less simple to make decisions when wants to behave legally.

I think in the end, a duty to retreat results in more corpses and less justice. Armed attackers ought not have substantial rights against innocent people who defend themselves.

(I have some personal experience with self-defense to an armed assailant, but my views were fully formed prior to that.)

--JRM
2.27.2006 5:11pm
ray_g:
As Houston Lawyer said, this reflects a lack of trust in our judicial system. The "duty to retreat" has been used by anti-gun DA's to prosecute those who have justifiably used firearms in self defense, and by criminals (or their survivors) who have brought civil suits against those who have justifiably used firearms in self defense. And, depending on the state, it is not necessarily the case that there is no "duty to retreat" in your own home.

As an aside, can we please stop hearing the "there will be blood in the streets" arguments against laws favorable to firearms ownership and/or self defense, seeing that as far back as I can remember all of these predictions have been wrong?
2.27.2006 5:15pm
Freder Frederson (mail):
To start with, the comment offers nothing to advance the discussion, but simply states the writer's view in a highly emotional way. Second, and much worse, the comment is personally insulting and vituperative. Third, the comment is stupid because it claims that "You have amply demonstrated yourselves to be paranoid beyond belief by defending an absolutely indefensible assault on free speech..." To the contary, Prof. Volokh has criticized that particular assault on free speech (a Virginia propoal to bar doctors from pestering patients about gun ownership), while I've never written or said anything for or against that proposal. If the "you" to whom the commenter is referring is someone else, then the comment should say so, and in any case, the tone is utterly inappropriate, regardless of to whom the comment is directed.

First, half the comments here simply state the writer's view in a highly emotional way. There is absolutely no reasonable discussion backed by objective fact or demonstrable public policy--just a generalized feeling that not having to retreat makes everyone safer. You--and now I do mean DK--want to ban such emotional statements when they disagree with your point of view.

Second, and much worse your reply to my comment is personally insulting and vituperative. And since I didn't even specifically point to one person in my comment so I don't know how it was "personally insulting".

Third, my comment is not stupid. I think anyone who feels that they need to carry a handgun just out of a generalized fear of crime rather than a occupational need or a legitimate, credible, individualized circumstance, is more than a little bit paranoid. And I even wonder about people who think that keeping a loaded gun in their house somehow makes them safer. Professor Volokh loves to ridicule the misuse of statistics. I doubt that there are more misused or just plain fabricatd statistics than those on the use of firearms on crime rates (and admittedly by both sides). But the fact is that there is really no evidence that shows any good link between the ownership, use, or prevalence of concealed carry laws and crime rates or personal safety. The roots, causes, and solutions to violent crime are just to complicated to be dependent on just that one factor.

The advocates of liberal carry laws make several fundamentally flawed assumptions. They expect both criminals and those with carry permits to act rationally and ignore that fact that most crime, and especially most violent crime, occurs between people who know eachother. The percentage of crime that will be affected by the stated purpose of concealed carry laws, even if you assume that the criminal makes rational decisions and takes into account the chance of encountering an armed victim, is small as a part of the entire crime rate.

For instance I live in New Orleans. We had the highest murder rate in the country before Katrina. Louisiana on the whole has one of the highest murder rates in the country along with more inmates serving Life without parole (there is no other kind here) and we're not afraid to execute people either. We also have a must issue concealed carry law. Yet when you look at who gets murdered in New Orleans, it turns out that over 80% already had been arrested on a felony charge and that the vast majority were drug related. So the major problem was drug related crime and criminals killing eachother. All the concealed carry laws in the world aren't going to stop those, since the assailants probably rightly assumed the victims were armed too.

The NRA's stories and statistics of "prevented crimes" due to use of firearms are almost certainly inflated by several orders of magnitude and I suspect most of the "Armed Citizen" stories printed in their various publications are greatly exagerrated to make the "criminals" look much more menancing and the "crime prevented" was only in the mind of the putative victim.

And I am sorry that I didn't make clear that I was referring to the general tone of the comments in the Proposed Virginia Law Thread (although I thought that was obvious). Prof. Volokh was indeed critical of the law. How any rational person could be for it is completely beyond me. That the NRA could even propose such a ridiculous restriction on the speech of doctors just shows and that some commentors in the thread would seek to rationalize it demonstrated the kind of paranoia I was criticizing and therefore, I think is stupid at all.
2.27.2006 6:17pm
Freder Frederson (mail):
As an aside, can we please stop hearing the "there will be blood in the streets" arguments against laws favorable to firearms ownership and/or self defense, seeing that as far back as I can remember all of these predictions have been wrong?

Only if we can stop hearing that gun control leads to blood in the streets, seeing that as far back as I can remember all these predictions have been wrong and the city with some of the strictest gun control laws in the country (New York) also has some of the lowest crime rates and Chicago has seen a precipitous drop in crime the last couple years.
2.27.2006 6:21pm
Defending the Indefensible:
Freder Frederson might be mistaken, but his argument is not stupid. I would not get into a debate over gun and crime statistics, because there are innumerable ways in which bias can be introduced even in controlled studies, and this is clearly a subject without controls at all. I do think that some people view this issue from the perspective of retributive justice, and I think that is an improper perspective that does resemble vigilantism.



[DK: The only part I called "stupid" was when he said "you" were paranoid for supporting the Virginia bill. I agree that the rest of his arguments, while based on little more than personal intution, aren't stupid. He has been warned, however, that name-calling will have consequences, and I'm sure that he is intelligent enough so that in the future he will make his points with an appropriately civil tone. I agree with the point in your last sentence that the justification for Stand Your Ground laws should be defense, and not retribution, the latter being a function of a proper criminal justice system.]
2.27.2006 8:00pm
AtackDuck:
Mr Frederson: "The NRA's stories and statistics of "prevented crimes" due to use of firearms are almost certainly inflated by several orders of magnitude and I suspect most of the "Armed Citizen" stories printed in their various publications are greatly exagerrated to make the "criminals" look much more menancing and the "crime prevented" was only in the mind of the putative victim. "

I realize that this is your opinion, but would you like to back it up with something resembling proof? As you know, the "prevention of crimes" numbers are from John Lott's research of all of the counties in the US. The publications that these "Armed Citizens" instances are taken from are hardly "their" (the NRA's) various publications, not unless you include the St. Petersburg Times as a NRA publication...

NYC and Chicago couldn't have gotten much worse, 400-700 killed/year each, is good progress? You can use a better example and explain the violent crime rate of the anti-gun heaven of Washington, DC.

I do agree that the 'blood in the streets' has been beaten into the pavement by both sides.
2.27.2006 8:18pm
AtackDuck:
The WISQARS nunbers for Chicago and NYC are not available but let's use Illinois and New York homocide numbers, which will dillute the rates:

Illinois 2000 674 rate 5.43
2003 696 rate 5.50

NY 2000 602 rate 3.17
2003 589 rate 3.07

DC 2000 138 rate 24.12
2003 156 rate 27.64

These are just the criminal homocides and do not include the police and justified homocides.

I would not call a drop of 589/year in NY or the increase in Illinois, precipitous.
2.27.2006 8:48pm
Freder Frederson (mail):
Obviously, you didn't look very hard to find the Chicago statistics. I would call a one-year, 25% drop, precipitous.
2.28.2006 10:28am
Freder Frederson (mail):
Sorry, the link didn't work.
2.28.2006 10:33am
Strophyx:
Gordo and some others voice concerns that when faced by assaults in a public place, armed citizens will use firearms in a manner that endangers other citizens in the vicinity. It would seem that, to the extent this is a real concern than simply an excuse to impose or maintain restrictions on the possession or use of firearms by the public, it would be more reasonably directed toward the police, since the empirical evidence shows they are several times more likely to shoot innocent bystanders in such situations.
2.28.2006 1:22pm
TDPerkins (mail):
This may be found relevant. The Psycology of Self Defense.

Yours, TDP, ml, msl, &pfpp
2.28.2006 2:37pm
kat-missouri (mail) (www):
A few thoughts:

First, the comment about "paranoia" and crime. "Paranoia" implies "unreasonable fear". However, if one were to look at individual city statistics as is being commented on above, in many places the two climbing crime rates are home invasion (while people are at home) and car jacking. In Kansas City, not only are these crimes going up, but so are murders by something like 30% last year (this year is also on a similar climb as gangs move into the area, the population rises and drugs are coming in from Mexico - an unintended consequence of NAFTA). So, I think that siting individual city numbers as proof of crime increases or decreases and using these to validate or invalidate an opinion on 2nd amendment issues or self defense is not statistically supported.

If it is, then I would submit that a 30% increase in murder in Kansas city would constitute "reasonable" fear of crime much less the other two rising crime rates which have, unfortunately, included a number of unprovoked murders and assaults in the act.

However, that is neither here nor there. Statistics do not invalidate rights. Because the government does not regularly throw people in prison for "sedition", such as carrying signs calling the president a "war criminal" or a "liar" or other acts, or because it does not routinely throw journalists into prison for writing articles unfavorable to the government, does this mean that we don't require the first amendment?

The answer, of course, is "NO" because past history and even current events tells us that, even with statistically low occurances, it is vigilance and constant practice of that right that maintains our ability to have free speech, not statistical occurances.

This is the same concept for the second amendment. Whether the government has or is planning to infringe upon the people and their rights, forcing them to seek change in government by force, if necessary, as is outlined in the Declaration of Independence, is not the point. It is vigilance and the inherent ability to do so, that acts as the guarantor of that right, not statistical evidence proving or disproving the facts or acts of he government.

Whatever criminal activity or lack thereof, whatever the statistics, whether 2%, 5%, 10% or even 1%, it neither increases nor diminishes basic rights such as self defense. Further, even if it is "only" a 1% murder rate, even if 99% of the population is unlikely to be murdered statistically, it does not diminish my right to insure that I am not part of that "1%". It does not mean that I give up my right to self defense. I do not have to stand there and let someone kill me or injure me because 99% of the population may never have to suffer such a fate.

The use of crime statistics in arguments for "gun control", while possibly not a "strawman" is definitely the wrong argument against rights unless people are prepared to use the same arguments for all other rights.

Second, the right to self defense is inherent, not just from common law, but can be reasonably construed as directly implied by the Declaration of Independence which gives the three unalienable rights as "life, liberty and the pursuit of happiness". If a person is threatened with a weapon, whether that is in a public space, a business or a home, all three of those unalienable rights are in danger of being infringed upon by the perpetrator(s) of the crime whether that is an individual citizen or the government. Those rights do not change regardless of the conditions of society or the political structure we live under unless that structure becomes totalitarian and citizens rights no longer exist.

Third, whenever discussions regarding statistics of "crimes with guns" occurs, as Freder was good enough to point out, the statistics are misused by both sides, but I must insist that the gun control crowd has probably been the most egregious in their use. For instance, people tend to look at overall "statistics" without looking at the details. One of the interesting details I noted in the DOJ statistics was that 57% of all "gun related deaths" were suicides in 2001.

If you want to find out about some really bad use of statistics, I have a post:

Right to Bear Arms and Crime Statistics

For instance, I wonder how many people know that the DOJ began changing their statistical gathering in 1988 due to a law passed by congress and then began reconfiguring their system in 1993, finally completed in 1997, all of which coincides with the rise and fall of crime rates in the US?

This is not a conspiracy theory. I am not a member of the NRA. I simply looked up the statistics on the DOJ site and noted a little phrase under every graph:

"National Crime Victimization Survey (NCVS). Ongoing since 1972 with a redesign in 1993"

1993 the Brady law went into effect. Miraculously, violent crime with guns began to drop off drastically. If you work with statistics in any form, you know that kind of drop only occurs when there is an accounting error.

So, wondering if this might be correct, I decided to look into 1988 to see if there was another "redesign" or other change that occurred that would effect numbers similarly in the other direction (being an analyst makes you think about those things). Guess what?

"In 1988, the Regulatory Flexibility Act was passed that required all agencies to present more data and information on programs they were managing (this is also in conjunction with "unfunded mandates reform act"). The DOJ had a rather large overhaul in order to meet this requirement and produce the data required. "

As I noted, I don't believe there was a conspiracy. I believe there was a severe flaw in the data gathering that has never been mentioned or overtly recognized by the government or by those who used the data to support tougher laws on crime or to push through gun control laws such as the Brady Act. I think that has been purposeful because it allowed both parties to get what they want and any recognition of an error would jeopardize both groups' agendas.

According to the DOJ site, the "redesign" occured until 1997 where, again miraculously, the crime rates and their specifics are now near to the same that they were from 1973 to 1987: 1% or less of the population.

With one exception. The "crime with a gun" that continues to grow, regardless of any waiting periods or changes in statistic gathering, is suicide.

Which brings us to the fourth issue before I close. As someone noted, permits to carry concealed weapons, contrary to popular myth, did not suddenly create thousands of would be killers who ran out and got a gun. Instances of crimes did not significantly increase or decrease. In reality, the only thing that occurred was that a few less people got a fine for carrying a weapon (which, in most states without a CCW, that is what happens if it is not found or used in the commission of another crime - a fine).

The truth is, changing self defense laws are not going to create a bunch of vigilantes killing more people either. What is going to happen is that a few less people are going to go to prison for murder or manslaughter. It will change sentences and convictions handed down, not the number of acts committed or not committed largely because it is not laws that create society, but society which governs laws. Modern social norms, regardless of the law, does not support wearing side arms on main street like Wyatt Earp or Wild Bill Hancock. Shooting people is not a social norm. It is highly unlikely that our way of life is going to drastically change despite hyperbolic commentary from the gun control crowd.

Thus, I believe that the real and largest paranoia regarding the subject is most likely from those who oppose the laws.
2.28.2006 3:43pm
Phillep (mail):
I thought that if a death results from the commission of a felony, the person committing the felony is usually charged with murder?

That should include deaths of third parties shot by a person defending himself from a mugger. The mugger gets charged with murder, even if the mugger is only pretending to have a gun or knife.
2.28.2006 5:35pm
H Barton Thomas (mail):
is the duty to retreat sound policy? i don't know. there are strong arguments both pro and con. unfortunately, laws are made without resort to any empirical evidence (citing statistics to prove theories is not the same as running controlled experiements to prove a hypothesis). so, we lawyers are like the doctors of the 1700s, and our treatments are based on anecdote and popular opinion, with some logic and intuition thrown in.

when we will graduate from leechcraft?
3.1.2006 1:43am
H Barton Thomas (mail):
is the duty to retreat sound policy? i don't know. there are strong arguments both pro and con. unfortunately, laws are made without resort to any empirical evidence (citing statistics to prove theories is not the same as running controlled experiements to prove a hypothesis). so, we lawyers are like the doctors of the 1700s, and our treatments are based on anecdote and popular opinion, with some logic and intuition thrown in.

when we will graduate from leechcraft?
3.1.2006 1:44am
sam24 (mail):
First I should state that I have a concealed carry permit and am almost always armed where the law allows. As far as the debate about retreating is concerned, it seems that one can still use his brain. If I am attacked by a person with a knife or a blunt instrument, I will retreat, even run, unless the attacker is potentially close enough to harm me with the weapon. If he has a firearm my intent is to get the first shot off. There is no reason one can't use judgement.
Non-lawyer MD
(I have seen my share of GSW)
3.1.2006 3:57am
Freder Frederson (mail):
My point was not some grand philosophical point about whether there is some grand inalieanable right to be armed and defend oneself against an attacker using deadly force in the street or in one's home and that right is somehow a key ingredient of liberty (which I find a dubious proposition at best--there are many countries every bit as free as ours where there is no inherent right to self-defense or it is severely limited). My point is that there is absolutely zero emprical evidence that owning a gun, or carrying one on your person, makes you safer or less likely to be a victim of crime or in any way has an impact, either positive or negative on the overall crime rate. Either side can take the available statistics and read them to "prove" their point. But some statistics are undeniable. The United States has by far the highest violent crime rate of any western country and the most lax gun control laws. Even when normalized for different methods of murder, our gun murder rate is much higher compared to other methods. As for home defense, even the NRA admits that only one in ten home invasions occurs when the home is occupied. So that means that if you keep a gun in the house for self-defense it is ten times more likely to be stolen (and therefore possibly used in a subsequent crime) than it is to be ever used to fend of an attacker.
3.1.2006 11:08am
sam24 (mail):
"there are many countries every bit as free as ours where there is no inherent right to self-defense or it is severely limited" ??? Is this an oxymoron?

"As for home defense, even the NRA admits that only one in ten home invasions occurs when the home is occupied"

I thought that the definition of home invasion meant an occupied dwelling.I only lock my doors when I am home to give me a little warning of unwanted entry. When the house is unoccupied I would rather the bugular walk in than kick down my door that it took me days to make in my shop.

"My point is that there is absolutely zero emprical evidence that owning a gun, or carrying one on your person, makes you safer or less likely to be a victim of crime or in any way has an impact, either positive or negative on the overall crime rate"

I agree that the overall crime rate effect is undefined, but I can assure you I will be less likely to be a VICTIM of a crime.

Non-lawyer MD
3.1.2006 12:17pm