The Truth About 'Stand Your Ground' or 'Make My Day' Laws

What Are Stand-Your-Ground (SYG) Laws?

“Stand-Your-Ground” or, more dramatically, “Make-My-Day” laws, refer to provisions in state self-defense statutes or case law that dispense with the duty to retreat before using force in self-defense. Of course, not all state laws are exactly alike, but as of February 2014 thirty-three states had some semblance of no-duty-to-retreat in their self-defense statutes or case precedents [1].

The articulated rub for opponents of SYG is that persons facing threats of serious injury or death may use force likely to cause death or serious injury without first retreating. Retreat is only required, however, if it can be done in complete safety or reasonable safety, depending upon the wording of the statute or case law. Unfortunately, as this article reveals, determining whether it is safe to retreat during an adrenaline-filled deadly attack may not be so easy or obvious.

The concerns of those who support SYG are several. First, the split-second delay during the required legal analysis of whether or not to retreat could be the difference between living through the assault or dying as a result of it. Second, retreating by moving makes accuracy much more difficult for the defender and could result in harm to himself or other innocents. Third, the requirement of retreat gives police and prosecutors another element to hang their accusations on. This, in turn, could create a chilling effect on the right of self-defense, which many consider to be God-given or inalienable, and dissuade the innocent from making preparations to defend themselves under any circumstances [2].

Historical Context

The self-defense concepts currently being applied in each of the U.S. states evolved from feudal times in England as part of English “common law.” At common law, a person was not required to retreat from his castle (home) when under attack. He could legally respond with arrows, scalding oil, boulders or any other potentially lethal object. However, if he were assaulted at a place outside of his home, he was required to retreat “to the wall” before using weapons that could kill or seriously injure his attacker. “To the wall” meant having to retreat until the defender could no longer do so. The to-the-wall concept eventually evolved into a phrase only requiring the intended assault victim to retreat if he could do so in “complete safety.” Presently, several U.S. states on the Eastern Seaboard and Midwest still apply this rule requiring retreat before using deadly force if retreating can be done in complete safety or if reasonably possible.

Doing away with the duty to retreat before using deadly force shifts the risk of dying, if you will, from the intended victim to the assailant. This risk shift, in addition to being referred to as SYG or Make My Day, is also referred to as the “Castle Doctrine.” In other words, these states have expanded the rule at common law that a person did not have a duty to retreat from his or her castle to places outside of his or her home where he or she has a right be. Hence, SYG is often referred to as “an expansion of the castle doctrine.” An obvious corollary to SYG is that trespassers must retreat if they can do so in reasonable safely. As trespassers, they do not have a right to be on the premises upon which they are trespassing.

Examples Of Statutory Verbiage In States With No SYG Law

Nebraska’s statute states that using deadly force against an assailant is not justifiable (not legal) if “[t]he actor [defender] knows that he can avoid the necessity of using [deadly force] with complete safety by retreating . . . [3]” Minnesota’s duty-to-retreat doctrine originates from legal precedent and uses the less-protective phrase “reasonably possible” rather than “complete safety.” “Minnesota has recognized that a person who kills another in self-defense must have attempted to retreat if reasonably possible.” [4] (Emphasis added.)
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Examples Of Statutory Verbiage In States With SYG

Florida’s controversial stand-your-ground law states:

“ . . . a person is justified in the use of deadly force and does not have a duty to retreat if:

Although many believe Florida’s SYG law, enacted in 2005, was the first of its kind. However, Utah has had such a law since the early 90’s. Utah’s SYG provision says, “A person does not have a duty to retreat from [deadly force] or threatened [deadly force] . . . in a place where that person has lawfully entered or remained . . .”[6]

Texas’ SYG law contains safeguards applicable in most states with SYG, although other states usually address these concepts in subparagraphs other than the subparagraph eliminating the duty to retreat. These safeguards, as described later in this article, ensure that persons who are the aggressors or otherwise violate the law are not allowed to invoke SYG:

What SYG Isn’t: Media Misquotes and Misconceptions

How many times since the George Zimmerman/Trayvon Martin case have we heard media personalities criticize Florida’s SYG law asserting that the law allows citizens to shoot someone if they simply feel threatened? For example, a recent New York Times article summarized Florida’s law as follows:

The shooting [of Jordan Davis by Michael Dunn], which unfolded in this northern Florida city [Jacksonville], has drawn attention once again to the state’s expansive self-defense laws that allow people who say they feel threatened to use lethal force to protect themselves.[8] (Emphasis added.)

Another false characterization a little closer to home was reported in Florida’s Sun Sentinel wherein its editorial board wrote:

Stand Your Ground removes any duty to retreat and allows people to use deadly force when they feel their lives are in danger.[9] (Emphasis added.)

Say what? All you have to do in Florida to be justified in shooting someone is to feel or say you felt threatened? Hardly. A cursory look at Florida’s self-defense law cited above proves this assertion to be totally false. First, the law makes clear that it doesn’t matter what the defender feels or believes if the feeling or belief is not reasonable. For example, someone who is fanatically afraid of germs does not have a right to kill someone who simply attempts to greet him with a harmless but sweaty handshake. The threat has to be one that a “reasonable man” would perceive as an immediate threat of death or serious bodily injury. Furthermore, the use of deadly force, e.g. shooting a gun, must be necessary to prevent the threat of serious injury or death. If a defender uses more force than is necessary to stop the threat, his claim of self-defense will fail.

This raises the question: Do members of the media even read the law before they say or write such obviously false statements or do they simply parrot previous media misstatements? And because members of the public rely upon the media more and more for information, does the media bear some legal or at least moral responsibility for citizens who harm others believing all they have to do is say they felt threatened before they use deadly force?[10]

What Else Does The Media Typically Omit About The Self-Defense Laws Of States With SYG Provisions?

SYG laws do not require a defender to retreat from anywhere he or she has a legal right to be before defending with deadly force. Nevertheless, the flip side of this rule is that a defender must retreat before using deadly force if he or she is a trespasser. Furthermore, in virtually every self-defense law of every state having SYG the defender loses the right to claim self-defense if he was the initial aggressor, provoked the conflict, engaged in mutual combat by agreement or was committing a felony which ultimately lead to the use of force in self-defense. Under some circumstances the defender may regain the right to self-defense, but only after he retreats and makes it crystal clear to his opponent that he is abandoning any threat of harm. If these exceptions to the law of self-defense are not expressly stated in the self-defense statutes of SYG states, their courts generally apply them by case precedent. As a result, in cases like the Zimmerman/Trayvon Martin case and the recent Dunn/Davis (“loud music” case), SYG is generally not the issue; the real issue in these cases was - who was the initial aggressor? If Florida had proven beyond a reasonable doubt that George Zimmerman had drawn a gun on Trayvon Martin and Martin was simply fighting to keep from being shot, Zimmerman could not have prevailed on the theory of self-defense and under no circumstances would he have been justified in standing his ground.

How Perception and Reaction Time Fits Into the Equation

Most people first learn about perception and reaction time in drivers’ education classes. The rule of thumb is that it takes about three quarters of a second to perceive an impending traffic collision and another three quarters of a second to react and apply the brake or steer evasively to avoid a collision. That’s one and one-half seconds total.

Anyone who receives any degree of advanced tactical training learns that “action always beats reaction.” Not long ago, I was invited by Utah law enforcement trainers to be the “token” criminal defense attorney to interview police and probation officers after simulated officer-involved shootings. During the seminar, I was able to observe the principle that “action always beats reaction” being demonstrated. The participants were given dart guns. While the “officer” had his dart gun trained on the “bad guy,” the bad guy had his hands in the air with a dart gun in his or her hands. The instructor had whispered instructions to the bad guy that when he was told to “put the gun down,” he would pretend to be dropping his hands to do so, but then to shoot the “officer” who had his gun trained on the bad buy with the officer’s finger on the trigger. Invariably the bad guy was able to shoot the officer before he or she could react even though the officer’s gun was pointed directly at the bad guy. The trainer would then explain that the reason this was happening was that the bad guy didn’t have to contend with the delay inherent in the process of perceiving and reacting. The bad guy’s mind had been made up far in advance of his or her act of shooting the officer. The officer, not knowing what the bad guy was up to until just before the bad guy pulled the trigger, was never able to catch up, so to speak, because of the additional burden of perceiving and then reacting. Unlike in TV cowboy shows of yesteryear, in real life the good guy seldom wins this kind of a gunfight.

Hence, one of the dangers with doing away with SYG is that it adds another time-consuming calculation to a deadly encounter – whether or not the defender should or should not retreat before using deadly force in self-defense. When split seconds could mean the difference between life and death, burdening a defender with a legal requirement taking additional time could prove fatal. An innocent citizen could die during the required legal analysis and get shot or stabbed in the back during the required retreat. Hence, legislators have reasoned that rather than have the defender bear the risk of dying in such encounters, that if a defender has a right to be where he or she is located when attacked, the risk of dying should shift to the assailant.

If an innocent defender is at risk with his or her finger on the trigger as illustrated in the police training described above, think of the disadvantage a person is under who is carrying a weapon that is concealed. Not only does that person have to perceive and react, he has to dig his firearm out of a concealed location through clothing, in a holster, a purse or wherever.

SYG Is Not New And Is Consistent With Justice And Equity

Opponents of SYG and their supporters in the media would have us believe SYG was a new legal principle concocted by the National Rifle Association and applied for the first time in Florida in 2005. As indicated above, several states applied SYG in their self-defense statutes long before Florida. But SYG evolved in American case law long before that and was presented as a just and equitable principle. In fact, in 1895 the United States Supreme Court, in a case arising in Indian Territory [11] during dispute involving white settlers, applied SYG to a homicide that took place “50 to 60 yards” outside of the defendant’s home, holding that the defendant when threatened with deadly force at a place he had a right to be could stand his ground and use deadly force in his defense.

Beard v. U.S., 158 U.S. 550, 564 (1895). In so holding, the Supreme Court cited several state court cases and treatises that explained how, in this country, the law of self-defense had evolved dispensing with the less rational rule requiring a citizen to retreat “to the wall” when confronted with an imminent deadly threat.

Id. At 561, 562. Consequently, most American states continue to follow this rule that justly shifts the risk of dying from the innocent defender to the assailant. And despite the loud clamor to repeal SYG, no state has done so.

Conclusion

SYG is not an extremist legal philosophy that was suddenly thrust upon American society in 2005 by what some consider militant pro-gun organizations. It was a legal principle that came about after serious reflection of how the law of self-defense should be applied in America’s courtrooms and received a final stamp of approval by the highest court in the land, the United States Supreme Court, in the late 1800’s. It shifts the risk of being killed or seriously injured from the innocent intended victim to the unlawful assailant. But the principle is counter balanced by the requirement that the defender must indeed be innocent of any wrongdoing. He loses the right of self-defense if he is the initial aggressor, provoked the conflict or illegally agreed to mutual combat. The threat to the defender must be one of imminent great bodily harm or death and his actions must ultimately be judged to be reasonable necessary. The law ultimately punishes the use of excessive force. For these reasons, SYG is the majority rule and continues to gain acceptance among the states rather than lose it.

Footnotes

1. Although the duty-to-retreat statutes often (not always) relate to the use of both deadly and non-deadly force, this article, for simplicity, limits the discussion to the more controversial use of deadly force.
2. During a seminar for Texas concealed weapon instructors, I had an attorney colleague tell me that the legal risk of defending oneself was so great and the legal consequences so potentially disastrous, that he would “rather die than carry a gun for self-defense.” Although anecdotal, this punctuates the chilling effect potentially disastrous legal actions can have on the right. And this was a Texas lawyer, in a state that has self-defense laws much more protective of defenders than most!
3. Nebraska Revised Statutes §28-1409(4)(b).
4. State v. Carothers, 594 N.W.2d 897 (Minn. 1999).
5. Florida Statutes Annotated, §776.012.
6. Utah Code Annotated, §76-2-402(3).
7. Texas Penal Code Annotated §9.31 (e) & (f).
8. New York Times, Florida Man’s Fiancée Contradicts Parts of His Testimony in Killing of Teenager, Lizette Alvarez Feb. 11, 2014.
9. Move to modify Stand Your Ground needed, October 14, 2013, Sun Sentinel Editorial Board.
10. I actually recall a phone conversation with a gun owner from Florida whose beliefs were in line with the media articles that he could shoot anyone he wanted and simply claim he felt threatened. Hopefully, he was convinced after reading our book, Self-Defense Laws of All 50 States, that this simply is not true and never has been true.
11. Hence federal jurisdiction.