Law in Contemporary Society

Presence/Absence and "Stand Your Ground" Laws

Brief History of self-defense justification

The United States has a long history of allowing and even encouraging the self-defense justification for homicide, although this justification has not always taken the same form. English common law traditionally set limitations on self-defense, namely that “one may meet force with force, but may not exceed the amount of force required to repel the threat, nor can he be the original aggressor who brought on the situation.” The individual needed to have their proverbial back against the wall in order to use deadly force; this is more or less the duty to retreat. Additionally, because English common law originated before the widespread possession and use of firearms, it was based upon a perceived threat close enough to be within a sword or staff strike. In the United States, the history was not as clear-cut, and courts in some states did not find a duty to retreat. The castle doctrine, when an individual has the right to use lethal force against an intruder without withdrawing, represents one instance in which an individual does not have a duty to retreat. This right exists regardless of force or reasonable threat of force by the intruder. A number of states retain this doctrine in lieu of “stand your ground laws” or “duty to retreat” laws.

Stand Your Ground Laws

“Stand your ground” laws eliminate the duty to retreat. Over 30 states currently have these laws, all of which have been passed since 2005. The National Rifle Association has been the major sponsor of such legislation, arguing that it empowers citizens against criminals. They claim to balance “the scales between the criminals and the victims”. However, they also encourage an interpersonal arms race, in which increased gun possession and use legalization encourages others to buy and use guns for perceived self defense. This results in a quasi-collective action problem, where increased gun use rights result in more gun deaths, further incentivizing individuals to arm themselves in self-defense.


“Stand your ground” laws represent an expression of too much presence. We talked in class about the importance of both absence and presence, depending on the circumstances. “Stand your ground” laws discourage withdrawing in the face of a perceived threat, and encourage the use of deadly force. On a physical level, these laws promote presence in an environment that is not safe. Although relying on withdrawing and waiting for the police to arrive assumes that the police will in some capacity be willing to aid you, the statistics do not support the claim that “stand your ground laws” improve those particular individuals’ outcomes. Black people have the lower levels of satisfaction with police responses than white people Considering that fact, black-on-white homicides are ruled justified in only 1.13% of cases in states without "stand your ground" laws, but white-on-black homicides are ruled justified in 9.51 % of cases. “Stand your ground” laws have increased the percentage of white-on-black homicides ruled justified (16.85%), but have not significantly increased the number of black-on-white homicides ruled justified (1.4%). “Stand your ground” have increased the likelihood that white people who kill black people will not be held accountable by the courts, while ensuring that black people who kill white people in perceived self defense will almost certainly be found guilty.

Even in a discussion not looking at race, “stand your ground” laws encourage mental presence in undesirable ways. They feed one’s baser instincts, and disincentivize a more detached, rational way of acting. Instead of encouraging individuals to evaluate a situation in a way that allows for de-escalation, it helps animate one’s most reactive impulses. This is especially problematic in the context of pre-existing prejudices that many people have. This is true of both the person “standing his ground,” and the juries that will eventually judge him. Implicit biases are just that; they do not reside in thoughtful rational analysis. The kind of high-intensity, emotionally charged environment that probably occurs before the use of deadly force in perceived instances of self-defense emboldens the emergence of those biases. Additionally, juries also rely on these same assumptions in evaluating self defense justification. “Stand your ground” laws have only increased the likelihood that a white-on-black homicide will be ruled justified, and have not significantly increased that likelihood for black-on-white homicides.

Balancing Absence and Presence

Absence and presence should both exist in a balance. Here, laws support too much presence, where absence should also be encouraged. Regardless of whether an individual uses deadly force because they feel threatened, the law should not incentivize that force. Even the castle doctrine has its own problems. There was a case in Louisiana where a homeowner shot and killed a Japanese exchange student who mistakenly knocked on his door looking for a Halloween party. He was acquitted of manslaughter in part because of the castle doctrine. There is an opportunity for the government to serve as a solution to the quasi-collective action problem presented by individuals arming themselves in self defense and shooting and killing more people. Instead of passing laws that expand rights for gun possession and use, the government could pass laws limiting. At the very least, they could eliminate “stand your ground” laws, as they encourage too many type I errors, and ultimately harm society.


Webs Webs

r3 - 13 Jun 2016 - 17:41:03 - JohnDeBellis
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM