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Stand Your Ground

Saturday, February 1, 2014

The seamy side of politics was on full display on October 29 as the U.S. Senate Judiciary Committee, chaired by Sen. Dick Durbin, D-Ill., held a hearing entitled “‘Stand Your Ground’ Laws: Civil Rights and Public Safety Implications of the Expanded Use of Deadly Force.” One might well ask what business Congress even has “investigating” an area of law squarely within the states’ power. In this case, however, the obvious purpose was to attack armed self-defense and to attempt to portray that civil right as a civil rights violation in itself. The lesson from witnesses who criticized Stand Your Ground (SYG) laws seemed to be that Americans are too prejudiced to be trusted with their rights. Fortunately for those who still believe that Americans are capable of responsible self-governance and individual liberty, this notion was soundly refuted by other witnesses who marshaled history, law and empirical evidence to defend SYG as both wise and fair.

Stand Your Ground laws, correctly understood, focus on the narrow issue of whether and to what extent a person who would otherwise have a right to self-defense forfeits that right by not first attempting to flee the confrontation. Nevertheless, Sen. Durbin and various witnesses used the hearing to launch broad-based attacks against such things as shall-issue concealed carry, national Right-To-Carry reciprocity legislation, and the American jury system.

A persistent theme of witnesses opposing SYG was that these laws, along with shall-issue concealed carry, encourage people to arm themselves and look for trouble they otherwise would avoid, especially interracial conflict. To the extent these witnesses acknowledged limitations on when and how these laws could be invoked, they claimed the limitations were ineffective, because people cannot see past their own racial prejudice. As one such witness opined, even if these laws are not intended to be racist, they have that impact because of the racial “baggage” jurors carry in this country. 

Establishing this storyline, Rep. Marcia Fudge, D-Ohio, characterized two young African American men killed in claimed self-defense shootings as “martyrs” and said they didn’t ask for that designation, “the American legal system made them martyrs.” She claimed that the combination of concealed-carry laws, SYG, and racial profiling “fosters a Wild West environment where individuals play the role of judge, jury and executioner.” Attacking the essence of self-defense not just in SYG states, but in all jurisdictions, she asserted, “The enforcement of Stand Your Ground laws too often rely on the decisions of those with cultural biases on when a person’s life is in danger.”
Rep. Fudge went on to decry “the underlying taint of racial profiling in both our culture and criminal justice system,” and said that “until these unjust and inherently biased laws are repealed, we have a responsibility to advocate and educate.”

Rep. Luis Gutierrez ratcheted up the rhetoric, characterizing SYG as “shoot first” laws and invoking the Sandy Hook massacre and the loss of “a classroom full of kids every day” in insisting that Congress take action against these laws. He criticized the “gun lobby” for attempting to make bearing arms for self-defense “socially and legally acceptable.” Again casting the debate in racial terms and attacking foundational principles of all self-defense, he insisted that SYG laws “exacerbate the mistrust of the police of a minority community” and that “trust further deteriorates with shoot first laws, when communities question whether racial bias or stereotypes will enter into the question of whether someone had a reasonable fear.”  

Fortunately, the accusations against SYG did not stand unanswered. Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, used his time to refocus the debate on the topic of no duty to retreat and explained the concept has a pedigree in American law dating back over 150 years and is current law in 31 U.S. states. Like others, he mentioned the unanimous 1895 Supreme Court case of Beard v. United States as also enshrining SYG in federal law. Shapiro noted that Florida’s 2005 SYG law passed the Senate unanimously and had Democratic support in the House. He also explained that of the 15 states that codified the concept in later years, the majority had Democratic governors, some of whom (including Janet Napolitano and Kathleen Sebelius) went on to become political appointees in the Obama administration. Even Barack Obama himself, Shapiro said, co-sponsored a unanimously approved bill as an Illinois senator that expanded the state’s self-defense laws. According to Shapiro, SYG is particularly relevant in the domestic violence context, where victims cannot simply run away from their abusers and hope never to see them again.

Economist Dr. John Lott then went on to detail how empirical evidence shows those most likely to be victims of violent crime, low-income African Americans, benefit most from strong self-defense laws. He explained that in Florida, African Americans and Hispanics successfully invoke the legal protections of SYG at a higher rate than whites. He also noted that while post-2005 data from Florida showed a higher rate of acquittals in SYG cases where an African American person is killed, 90 percent of persons being charged in those cases were themselves African American. This is because, Lott noted, violent confrontations overwhelmingly occurred between persons of the same race. Lott also looked at other variables in these cases that might explain why SYG was so often successfully invoked when the deceased was African American and found that in a higher percentage of those cases, the deceased was armed or in the process of committing another crime, or a witness was present to corroborate that the slayer acted in self-defense.  

Lott additionally went on to debunk claims other witnesses made based on studies by the Urban Institute and Texas A&M. Using the Urban Institute’s own data, Lott showed that conviction rates are actually lower for African Americans who live in SYG states. He also noted that a Texas A&M study that purported to show an increase in homicides after the enactment of SYG laws failed to account for other relevant variables that, when controlled for, make the differences disappear. Lott’s written testimony should be required reading for anybody who truly wants to understand the data underlying this issue.    

Even Harvard Law professor Ronald Sullivan, while willing to make wild claims about SYG laws and racial profiling, had to acknowledge—reluctantly—that the data purporting to show a racial bias is inconclusive and that SYG laws were not passed with racist intent.

In his concluding remarks, Sen. Ted Cruz, r-Texas, reminded the subcommittee that the SYG defense is not available to those who initiate aggression, and that the real question is whether the law should favor the attacker or the innocent victim. He called Durbin’s assertion that no one could reasonably believe that African Americans benefit from SYG remarkable, given how many are victims of violent crime and have successfully invoked the law’s protection.

Sen. Durbin angrily responded that the director of the Washington Bureau of the NAACP agreed with him and that he would not “back away” from pursuing the racial implications of this issue. Sen. Durbin, however, would do well to remember the historic words of Dr. Martin Luther King, when he looked forward to a day in which people were not “judged by the color of their skin, but by the content of their character.” To that end, Sen. Durbin should also know that supporters of SYG and armed self-defense will not be bullied or intimidated by slanderous accusations about their motives. Self-defense is a fundamental human right of all people, and the NRA will not back away from supporting laws that recognize this principle. 

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