In a new article forthcoming in the North Carolina Law Review, Cynthia Lee surveys the current state of the “initial aggressor” doctrine–under which an individual who initiates a violent confrontation loses the right to claim that he or she acted in self defense–and proposes several changes to the doctrine to discourage gun violence and ensure that “initial aggressor” cases are properly evaluated in court. 

Cynthia Lee, Firearms and Initial Aggressors , 101 N.C. LAW REV. ___ (forthcoming 2023)

Abstract:

Under the initial aggressor doctrine, a person who initiates a physical confrontation loses the right to claim self-defense. Until recently, judges, legal scholars, and others have paid relatively little attention to this doctrinal limitation on the defense of self-defense. Two high-profile criminal trials in 2021 put the initial aggressor doctrine front and center of the national conversation on issues concerning self-defense and racial justice. One involved Kyle Rittenhouse, the seventeen-year-old teenager who brought an AR-15 style rifle to Kenosha, Wisconsin, during the third night of racial protests in August 2020, and ended up shooting three men, killing two and injuring the third. The other involved the February 2020 shotgun shooting by Travis McMichael of an unarmed Black man named Ahmaud Arbery as he was jogging in a predominantly White neighborhood in Satilla Shores, Georgia.

The question of how the threatening display of a firearm in public should factor into the initial aggressor doctrine when a claim of self-defense has been asserted has become more important than ever as the nation continues to relax its restrictions on firearm carrying in public and as criminal homicides by firearms rise. As laws regulating the carrying of firearms in public–laws on the front end–become less restrictive, the need to tighten up laws that apply on the back end to those who discharge or otherwise use their firearms in public becomes more pressing. Initial aggressor rules, which are an integral part of self-defense *2 doctrine, can serve this critical function and should be reformed to discourage gun owners from using their firearms except when truly necessary in self-defense.

While all fifty states and the District of Columbia have placed some kind of limitation on an initial aggressor’s ability to justify the use of force in self-defense, current initial aggressor rules are ambiguous and often contradictory. Most state statutes do not define the term “aggressor” and no clear rules exist regarding whether and when an initial aggressor instruction must be given to the jury.

This Article attempts to strengthen the initial aggressor doctrine so it can be used to help discourage gun violence. To this end, this Article makes three key contributions to existing legal scholarship. First, this Article clarifies the morass of confusing initial aggressor rules that currently exist across the nation. Second, this Article theorizes that one of the main problems with current initial aggressor doctrine is that it leaves too much discretion in the hands of the judge, which means the jury–the body that is supposed to decide whether a defendant qualifies as an initial aggressor–often never gets to decide this key question that can make or break a defendant’s claim of self-defense. Third, this Article proposes a few ways to resolve these problems. It first suggests that states define the term “initial aggressor” in a way that better captures the behavior the term is meant to include. Second, this Article proposes that judges, as a general matter, must give an initial aggressor instruction whenever an individual outside the home displays a firearm in a threatening manner or points that firearm at another person, is charged with a crime, and then claims they acted in self-defense. By lowering the threshold to get an initial aggressor instruction to the jury, this proposal ensures that in most cases the jury, rather than the judge, gets to decide whether the defendant was the initial aggressor.

On February 25, 2022, a Florida jury acquitted the former police officer who shot and a killed the man he argued with in a movie theater in 2014. Curtis Reeves wasn’t just any retired police officer, but a former SWAT commander. His defense counsel even argued that his past informed his perceptions of the threat in that moment: Reeves, his attorney said, was a “decorated law enforcement officer who had countless hours of training in the use of force, in the assessment of danger, and the risks that take place when we are faced with a dangerous encounter.” A jury evidently credited some version of that argument.

In the movie theater eight years ago, the altercation started when Reeves chided Chad Oulson for texting during the previews before the movie started and told him to stop. Oulson had been texting the couple’s babysitter. The two argued, and Oulson threw a bag of popcorn at Reeves. In response, Reeves pulled out his handgun and shot Oulson. Reeves testified that he feared for his life. As he said:

[Oulson] was yelling a lot of profanities . . . he was trying to come over the seat – either that or get to me. I’ve never been in that kind of position before. When he stood up, I’m sitting down in a completely defenseless position. I’m looking up at this guy, and he is looking like a monster. He exhibited explosive behavior, both verbally and physically. I had seen his wife try to control him.

Florida’s Stand Your Ground law allows a person to use deadly force without retreating whenever they are in a place they have a right to be and reasonably believe that force is necessary to avoid death or great bodily harm. It also entitles anyone claiming such a defense to a pre-trial immunity hearing. In this case, a judge in 2017 rejected the immunity argument after the pre-trial hearing, ruling that deadly force was not necessary. But such a ruling only meant the case continued to trial, where the defendant was free to assert self-defense to the jury.

Robust self-defense laws and the situations they create can lead to avoidable loss of life. In a 2020 article (which he presented at the first Firearms Law Works-in-Progress Workshop and blogged about after), Cody Jacobs used the Reeves case to argue for a rule that would hold private property owners civilly liable for failing to keep guns off their property. As he argued, “If the movie theater had an explicit, clearly posted policy prohibiting guns, it is likely that Mr. Reeves, a former law enforcement officer with no criminal record, never would have brought a gun to the movie that day in the first place, and Mr. Oulson would still be alive.” At our upcoming conference later this month on Privatizing the Gun Debate, we’ll discuss proposals like this that involve tort liability and other forms of private gun regulation.

I. Introduction

Recently, there have been several high-profile trials that underscore the intersection of guns and race in America. In Georgia, Greg and Travis McMichael (father and son), and William “Roddie” Bryant, stood trial for fatally shooting Ahmaud Arbery, a Black man whose race seemed to be the only provocation the three white men needed to end his life. Many argue that had Arbery been white, he never would have aroused the suspicions of the McMichaels, and certainly had the assailants been Black, they would have been arrested immediately. Miles away, in Kenosha, Wisconsin, Kyle Rittenhouse, was acquitted of murder and attempted murder. Rittenhouse, only 17 at the time, openly carried an AR-15 assault rifle down the street during protests related to the police shooting of Jacob Blake, a Black man. Rittenhouse moved freely about Kenosha streets, even as those in the crowd warned officers that he had shot three people, killing two of them. Many observers have opined that had Rittenhouse been a Black man, he surely would not have lived to stand trial, and even if he survived, he would have been unlikely to receive the sympathy that so many had for Rittenhouse.[1] 

These cases demonstrate that the role of race and guns in America cannot be disentangled. Holding those responsible for these homicides is important, but it is imperative to determine how to prevent future killings. Valuing Black lives means confronting a gun culture that promotes private vigilantism (as in the shooting death of Arbery), which some white Americans use to justify gun violence against Blacks. Valuing Black lives also means ensuring equal access to self-defense claims and treating similarly-situated defendants similarly. This means ensuring that Black Americans, when appropriate, are able to avail themselves of available defenses under the law. Although the Rittenhouse case did not involve issues of Stand-Your-Ground, it offers an interesting lens through which to analyze the role that race potentially played in his acquittal.

The expansion of Stand-Your-Ground statutes and an entrenched gun culture in the United States complicate both these propositions, and the racial impact of these laws deserves greater attention from policymakers.[2]

II. Stand-Your-Ground Explained

A. Common-Law Self Defense

In general, the law of self-defense is an affirmative defense that allows a defendant to argue that the use of force was justified to protect herself or others harm. In the case of a deadly use of force, the defendant would need to show that deadly force was necessary to prevent serious injury of bodily harm or death. Under the common law, self-defense imposes a duty to retreat before using deadly force, meaning if the defendant had been able to safely avoid the conflict, she was obligated to do so and could not avail herself of the defense.[3] Generally, however, there was no duty to retreat when the defendant was in her home, and this concept is called the “castle doctrine.” Some states expanded the castle doctrine to include motor vehicles or workplaces, and other states have enacted legislation that removes the duty to retreat in all circumstances—known as “Stand-Your-Ground” statutes.[4]  These Stand-Your-Ground statutes essentially codify the absence of the duty to retreat and allow individuals to use deadly force even when there is an option to safely retreat from a potentially dangerous situation.

B. The Expansion of Stand-Your-Ground Laws

Backed by gun-rights proponents, and enacted in over half the states, Stand-Your-Ground laws have proliferated since 1994 when Utah became the first state to pass Stand-Your-Ground legislation.[5] In 2005, there began to be widespread legislative movement. According to the Rand Corporation, as of January 1, 2020, there were 34 states that had Stand-Your-Ground laws or had expanded the castle doctrine to apply beyond the home. In 2021, both Arkansas and Ohio passed legislation to expand the castle doctrine. For example, in March 2021, Arkansas Governor Asa Hutchinson signed into law a bill that allows an armed person to use deadly force if they believe they are in imminent danger. This represented a departure from previous law where Arkansas did prohibit a person from using deadly force if they can safely retreat. Hutchinson said that while he previously thought there was no compelling reason to have such a law, he was now persuaded by the fact that the bill was not opposed by law enforcement.

III. Implications of Stand-Your-Ground Laws

A. Evidence Suggests that Stand-Your-Ground Laws Increase Firearm Homicides

There are a number of arguments against expanding Stand-Your-Ground laws. First, these laws encourage people to take the law into their own hands without calling on law-enforcement officials who should be skilled at intervening in dangerous situations. The existence of these laws discourages de-escalation and may encourage people to “shoot first, ask questions later.”[6]  As some gun violence prevention experts have noted, these laws make people feel like it is their job to do traditional police work.

In fact, studies show that Stand-Your-Ground laws do not deter crimes, but they have been shown to increase firearm homicide rates. For example, in 57% of Florida Stand-Your-Ground cases, there was “clear evidence that the person who claimed that Stand-Your-Ground could have safely retreated to avoid the confrontation.”[7] In essence, these laws allow individuals to forgo de-escalation and use deadly force as a first step. Experts note that “such laws have created a shoot-first-ask-questions-later culture that gives a green light to people with no firearms or bias training to make life-or-death decisions, often within a matter of seconds.”[8]

A 2017 study in the Journal of Human Resources found that Stand-Your-Ground laws led to an increase in homicides and hospitalizations related to firearm-inflicted injuries. The study estimated that at least 30 people died per month due to the laws.[9] Cheng and Hoekstra (2013) found that these laws significantly increase homicide rates, but they have uncertain effects on robbery, aggravated assault, and burglary rates.[10] McClellan and Tekin (2017) also found significant increases in total homicides associated with the implementation of Stand-Your-Ground laws. In contrast, Webster, Crifasi, and Vernick (2014) found that these laws have an uncertain effect on the total homicide rate. Finally, Humphreys, Gasparrini, and Wiebe (2017) and Guettabi and Munasib (2018) found significant effects consistent with the law increasing total homicides in Florida after its passage. These studies draw on two distinct data sources: Federal Bureau of Investigation crime-rate data from the Uniform Crime Reporting Program and the Centers for Disease Control and Prevention’s Fatal Injury Reports. Evidence that Stand-Your-Ground laws may increase total homicide rates is moderate, and evidence that such laws may increase firearm homicide rates is supportive. Evidence for the effect of Stand-Your Ground laws on other types of violent crime is inconclusive.[11]

B. Racial Disparities

In addition to the potential increase in firearm homicides in general, there is also evidence that Stand-Your-Ground laws exacerbate racial inequities for both victims of and defendants. In Stand-Your-Ground states, “homicides in which white shooters kill Black victims are deemed justifiable five times more frequently than when the situation is reversed.”[12]  In Florida—which is considering a repeal of the law—the law was associated with a 45% increase in monthly firearm homicide rates and around a 23% increase among Black residents. When speaking about the Stand-Your-Ground statute in Florida, then-gubernatorial candidate Andrew Gillum, who is Black,  noted that the law “is being used by vigilantes to turn themselves into judge, jury and executioner.”[13]  He further went on to state, “We all know that [Stand-Your-Ground] is not colorblind. If we’re going to talk about it, we’re going to have to talk about it fully.” He continued, “We all know that based on the color of my skin I present a certain threat. A certain level of threat that might cause someone to have the power to snuff out my life or my children’s lives.”[14]

Some observers have even declared that such laws were “designed to benefit white shooters and not gun owners of color.” An Urban Institute study seems to buttress this claim. For example, the study found that when both the shooter and victim are white, 11% of these cases have been deemed justifiable.[15] When both parties are Black, a lower percentage of Black defendants are able to successfully avail themselves of the defense, and the rate falls to 8%.[16] The most telling finding from this study is what happened when the shooter and victim are of different races. When the shooter is white and the victim is Black, the rate of justifiable homicide is 34%. When the races are reversed, and the shooter is Black and the victim is white, the rate of justifiable homicide fell to only 3%.[17] This evidence strongly suggests that white assailants can more confidently use deadly force when their victims are Black, than can Black defendants when their victims are white. Again, Black lives, whether they belong to the victim or defendant, are not treated equally under the law.

Stand-Your-Ground’s Victims of Racist Vigilantes

A. Ahmaud Arbery

The case of Ahmaud Arbery presents one of the most recent and well-known invocations of Stand-Your-Ground. Examining the doctrine through the lens of this case, also illuminates the role that race may play in these situations. In February 2020, two armed white men, Gregory and Travis McMichael, killed Ahmaud Arbery in Georgia as he jogged through their neighborhood. Police initially questioned the McMichaels and determined that they acted properly under Georgia’s Stand-Your-Ground law. This case illustrates the danger that even the existence of such a defense potentially could have insulated these assailants and others from trial, where after a full vetting of the facts and evidence, ultimately demonstrated their guilt.

A review of footage released after Arbery’s death, however, clearly demonstrates that circumstances do not meet the strictures of the state’s Stand-Your-Ground law. The McMichaels pursued Arbery, blocked his path with their truck, and attempted to detain him simply because they suspected Arbery of trespassing at a construction site. If they truly suspected he was trespassing, why not continue monitoring him and initiating contact with local  law enforcement agents to arrive and conduct a proper investigation within their training and experience. It is doubtful, whether based upon the scant facts available at the time, that police would have had enough information to conduct a constitutionally permissible stop. Jogging through a neighborhood and even stopping to view a construction site is not a crime, and certainly not an infraction that justifies taking a life. These men accosted Arbery, hit him with a truck, and Travis McMichael fatally shot Arbery when he defended himself against the armed assailants. If anyone could have availed himself of the Stand-Your-Ground defense, it would have been Arbery, who legally could have defended himself against the armed vigilantes chasing him for no known reason.

It took 74 days after the shooting for Georgia authorities to charge the McMichaels with Arbery’s death.[18] In addition to conflicts of interest that eventually forced a recusal (the prosecutors knew and previously worked with Greg McMichael), the very existence of the Georgia Stand-Your-Ground law is to blame for the delay.[19]  Without the Georgia law, it would have been difficult to argue that suspects, who themselves accosted Arbery, were entitled to that self-defense.

The racial dynamics of Arbery’s murder are well-documented. There were allegations that Travis McMichael had a history of using racial slurs when referring to Black people and that he used a slur after he shot Arbery and he stood over his lifeless body.[20] At trial, Travis McMichael sought to exclude a photo of his truck that showed his license plate displaying a confederate emblem.[21] The state, however, asked that the evidence be allowed because the plates were on the truck at the time the McMichaels killed Arbery. The confederate flag has long been seen as a symbol promoting white supremacy. There is also evidence that Travis McMichael used racial slurs on more than one occasion in text communications unrelated to the shooting.[22] All three men will face trial in February 2022 on federal hate crimes charges, and this evidence could be introduced at that trial to show racial animus of the trio.

While the evidence certainly suggests that Stand-Your-Ground laws disadvantage Blacks, it is important to understand why the proliferation of these “shoot first laws” can be particularly dangerous for Blacks. There is an ample body of scholarship devoted to exploring the damaging effect contemporary racism has on the health and well-being of racial minorities.[23] One such example is evident in the Arbery case. With a jury composed of only 11 white jurors and 1 Black juror, the prosecution chose to focus on the facts and evidence, and largely left out the discussion of race. On the other hand, a large part of the defense strategy was to play upon the perceived racial biases of the jurors. Defense attorneys for the defendants frequently referenced that there were too many “Black pastors” present at the trial. Perhaps even more disturbing were the racist stereotypes hurled against Arbery even in death. Greg McMichael’s defense attorney played to what she perceived to be the nearly all white jury’s potential for racial bias, noting that at the time of his death, Arbery had “no socks to cover his long, dirty toenails” that he was a “recurring night-time intruder” whose presence was “frightening and unsettling.”[24]

B. Trayvon Martin

The facts surroundings Arbery’s shooting death are eerily similar to that of George Zimmerman, who was acquitted in the killing of Trayvon Martin. Seventeen-year old Trayvon Martin was walking back to his relative’s house after buying candy at a convenience store. George Zimmerman, a neighborhood watch coordinator, reported what he said was a “real suspicious Black guy” to 911. Zimmerman was told by the 911 operator not to chase after Martin. Zimmerman disregarded these instructions and exited his car and pursued Martin, who was unarmed. This altercation left Martin dead. When the police arrived, Zimmerman claimed self-defense and was not arrested. As the police chief later explained, “[i]n this case Mr. Zimmerman has made the statement of self-defense . . . Until we can establish probable cause to dispute that, we don’t have the grounds to arrest him.” Zimmerman was later tried and acquitted. Experts have noted that Florida’s Stand-Your-Ground law contributed to Zimmerman’s acquittal.[25]

C. Racial Disparities in the Application of Stand-Your Ground Cases

Not only do these laws encourage deadly escalation of the use force, they seem to do so in a racially disparate manner. Like so many laws in the criminal legal system, Stand-Your-Ground laws are not equitably applied as a defense when it comes to Black defendants. White men are more likely to successfully invoke the use of Stand-Your-Ground laws for their defense after a shooting than women – especially Black women – or Black men. In a paper published by the Urban Institute, authors examined FBI homicide data from 2005-2010 and found large disparities in homicides being ruled justified based on the race of the defendant and the victim.[26] Nationally, the likelihood of a homicide being ruled justified is 281% greater when the defendant is white and the victim is Black when compared to cases where both the defendant and victim are white. In contrast, the likelihood of a homicide being ruled justified when the defendant is Black and the victim is white is 49% lower compared to cases where both the defendant and victim are white.[27]

IV. Adopting the ABA’s Recommendations

Much like implicit and explicit bias evident in police use of force cases, the violence and racial bias of everyday Americans should draw the ire of activists. As the evidence and recent cases suggest, Stand-Your-Ground laws can have a dangerous impact on Black victims because of racial stereotypes. At the same time, Black defendants accused of crimes do not enjoy the same protections under these laws as similarly situated white defendants. Assessing whether and to what extent these laws increase homicides and have racially disparate impacts should be an important part of a state legislature’s decision to retain or enact such laws. In the wake of Trayvon Martin, the ABA detailed report on the use of force included a number of recommendations that jurisdictions could implement in order avoid the deleterious effects of Stand-Your-Ground laws. The ABA Task Force suggested a set of comprehensive reforms, including the repeal of Stand-Your-Ground laws.[28]

Short of repeal, the ABA also recommended that jurisdictions enact safeguards that “prevent racially disparate impacts and inconsistent outcomes” that advantage whites while disadvantaging Blacks.[29]  What the Task Force did not do is offer or recommend a framework for assessing these impacts. Future study should focus on scientific research studying the impact of Stand-Your- Ground laws on minorities, as well as developing and implementing a framework and providing technical assistance to state legislatures and other policymaking bodies before such laws are introduced.[30] 

Click here to view a PDF of this essay.

Cite as: Kami Chavis, The Dangerous Expansion of Stand-Your-Ground Laws and its Racial Implications, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 18, 2022), https://firearmslaw.duke.edu/2022/01/the-dangerous-expansion-of-stand-your-ground-laws-and-its-racial-implications.

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

Notes

[1] After his acquittal, Rittenhouse was welcomed by many conservative politicians, and even met with former President Trump. See Teaganne Finn, Trump Says He Met with Kyle Rittenhouse After Verdict, Calls Him ‘a Nice Young Man’, NBC News (Nov. 24, 2021), https://www.nbcnews.com/politics/donald-trump/trump-says-he-met-kyle-rittenhouse-after-verdict-calls-him-n1284513.

[2] It is undeniable that the United States has a unique fixation with guns. The U.S. is the only country where civilian guns outnumber people. See Kara Fox, Krystina Shveda, Natalie Croker & Marco Chacon, How U.S. Gun Culture Stacks up with the World, CNN (Nov. 26, 2021), https://www.cnn.com/2021/11/26/world/us-gun-culture-world-comparison-intl-cmd/index.html.

[3] See United States v. Peterson, 483 F.2d 1222 (D.C. Cir. 1973).

[4] See Lindsay Whitehurst, Utah Law Allows Gun Owners to Use Deadly Force in Many Cases, Lubbock-Avalanche J. (May 6, 2015), https://www.lubbockonline.com/story/news/nation-world/2015/05/06/utah-law-allows-gun-owners-use-deadly-force-many-cases/14978643007/.

[5] See id. (noting that Utah’s law came more than a decade before Florida passed its stand-your-ground law in 2005, and that since then 30 states had enacted similar laws).

[6] The Effects of Stand-Your-Ground Laws, Rand Corporation (Apr. 22, 2020) https://www.rand.org/research/gun-policy/analysis/stand-your-ground.html.

[7] Stand Your Ground Laws Are a License to Kill, Everytown for Gun Safety (Sept. 8, 2021) https://everytownresearch.org/report/stand-your-ground-laws-are-a-license-to-kill/.

[8] Kami Chavis, If We Truly Value Black Lives, End Stand-Your-Ground, Columbus Dispatch (June 17, 2020), https://www.dispatch.com/story/special/2020/06/17/column-if-we-truly-value-Black-lives-end-stand-your-ground/112817872/.

[9] Chandler McClellan and Erdal Tekin, Stand Your Ground Laws, Homicides and Injuries, 52 J. Hum. Res. 621 (2017).

[10] Cheng Cheng and Mark Hoekstra, Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? 28 J. Hum. Res. 428 (2013).

[11] The Effects of Stand-Your-Ground Laws, Rand Corporation (Apr. 22, 2020), https://www.rand.org/research/gun-policy/analysis/stand-your-ground.html.

[12] Stand Your Ground Laws Are a License to Kill, Everytown for Gun Safety (Sept. 8, 2021) https://everytownresearch.org/report/stand-your-ground-laws-are-a-license-to-kill/.

[13] David Love, Stand Your Ground Laws Encourage Racially Charged Violence, CNN (Aug. 3, 2018) https://www.cnn.com/2018/08/03/opinions/stand-your-ground-law-racial-violence-opinion-love/index.html (citing then-gubernatorial candidate Andrew Gillum’s comments about Florida’s law).

[14] Id. (citing then-gubernatorial candidate Andrew Gillum’s comments about Florida’s law).

[15] John Roman, Stand Your Ground Laws and Racial Bias, Urban Institute (June 2013), https://www.urban.org/urban-wire/stand-your-ground-laws-and-racial-bias.

[16] Id.

[17] Id.

[18] See Cleve R. Wootson Jr., and Michael Brice-Sadler, It Took 74 days for Suspects to be Charged in the Death of a Black Jogger, Wash. Post (May 8, 2020) https://www.washingtonpost.com/national/outraged-by-the-delayed-arrests-in-killing-of-Black-jogger-protesters-in-georgia-demand-justice/2020/05/08/8e7d212a-90a9-11ea-9e23-6914ee410a5f_story.html.

[19] The first local prosecutors who initially handled the case had personal/professional relationships with the McMichaels. See Oliver Laughland, Ahmaud Arbery Murder: Trial Laid Bare America’s Faultlines on Race, The Guardian (Nov. 25, 2021) https://www.theguardian.com/us-news/2021/nov/25/ahmaud-arbery-verdict-race.

[20] See Brakkton Booker, White Defendant Allegedly Used Racial Slur After Klling Ahmaud Arbery, NPR (June 4, 2020) https://www.npr.org/2020/06/04/869938461/white-defendant-allegedly-used-racial-slur-after-killing-ahmaud-arbery.

[21] Janelle Griffith, Ahmaud Arbery Murder Suspects Seek to Ban Confederate Flag License Plate from Evidence,” NBC News (Oct. 6, 2021), https://www.nbcnews.com/news/us-news/ahmaud-arbery-murder-suspects-seek-ban-confederate-flag-license-plate-n1280926.

[22] See Russ Bynum, Prosecutor Reads Racist Messages by Ahmaud Arbery’s Killer, PBS Newshour (Nov. 12, 2020), https://www.pbs.org/newshour/nation/prosecutor-reads-racist-messages-by-ahmaud-arberys-killer.

[23] See e.g., Valerie Purdie-Vaughns and David R. Williams, Stand-Your-Ground is Losing Ground for Racial Minorities’ Health, 147 Soc. Sci. & Med. 341 (2015), https://psychology.columbia.edu/sites/default/files/2017-04/1-s2.0-S0277953615301489-main.pdf.

[24] See Oliver Laughland, Ahmaud Arbery Murder: Trial Lad Bare America’s Faultlines on Race, The Guardian (Nov. 25, 2021), https://www.theguardian.com/us-news/2021/nov/25/ahmaud-arbery-verdict-race.

[25] See John K. Roman, Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report, Urban Institute (July 2013) at 8, https://www.urban.org/sites/default/files/publication/23856/412873-Race-Justifiable-Homicide-and-Stand-Your-Ground-Laws.PDF (noting that while Zimmerman did not affirmatively claim a Stand Your Ground defense in his case, the jurors were instructed on Florida’s Stand Your Ground law and the issue did arise during juror deliberations).

[26] Id.

[27] Id.

[28] See also, Mark Obbie, American Bar Association Calls for Repeal of Stand Your Ground Laws, The Trace (Sept. 29, 2015), https://www.thetrace.org/2015/09/bar-association-stand-your-ground/.

[29]Id.

[30] See Valerie Purdie-Vaughns & David R. Williams, Stand-Your-Ground is Losing Ground for Racial Minorities’ Health, 147 Soc. Sci. & Med. (2015), https://psychology.columbia.edu/sites/default/files/2017-04/1-s2.0-S0277953615301489-main.pdf (noting that “To the extent that a robust program of scientific research can develop effective interventions to reduce systematic and institutional forms of racism, we advance research on all forms of inequality that affect the health of our global society.”).

We are excited to begin rolling out the essays from the Center’s recent roundtable on Race and Guns in America. The essays are impressively rich and thoughtful, offering various descriptions and diagnoses (and some prescriptions) for the persistent problems that arise in a country flooded with guns and saturated with systemic racism.

Starting tomorrow, we will publish one essay each day on the blog (excluding Mondays, when we publish the SCOTUS Gun Watch), with an accompanying link to a PDF version of the post. The titles of the essays are below, and we’ll update this page with the final links to all the essays once the series is complete. [Updated with links.]

We are very grateful to the authors for their time, contributions, and engaging dialogue on a difficult subject.

• Daniel S. Harawa, The Racial Justice Gambit
• Margareth Etienne, Disarming the Police: Blue Lives, Black Lives and Guns
• Lindsay Livingston, From Self-Defense to Self-Deputization: Defensive Gun Use and the Performance of Reasonable Belief
• Gregory S. Parks, When CRT Meets 2A
• Angela R. Riley, Native Nations and The Right to Bear Arms in a Post McGirt World
• Pratheepan Gulasekaram, “The People”, Citizenship, and Firearms
• Patrick J. Charles, Some Thoughts on Addressing Racist History in the Second Amendment Context
• Kami Chavis, The Dangerous Expansion of Stand-Your-Ground Laws and its Racial Implications
• David E. Olson, Illegal Firearm Possession: A Reflection on Policies and Practices that May Miss the Mark and Exacerbate Racial Disparity in the Justice System
• Brennan Gardner Rivas, The Problem with Assumptions: Reassessing the Historical Gun Policies of Arkansas and Tennessee

Last week the Supreme Court held oral argument in a case concerning how the free speech rights of public school students interact with school officials’ authority. The Court’s ruling in that case could have implications for a lawsuit working its way through federal court in Wisconsin. On Monday, a district judge in the U.S. District Court for the Eastern District of Wisconsin ruled against students’ free speech claims in N.J. v. Sonnabend. There, several students challenged school policies that banned depictions of firearms on student clothing.

The two plaintiffs, both middle school students at the time they filed the lawsuit, described themselves as Second Amendment supporters and gun enthusiasts. The principals in each case (the lawsuit arose out of two different schools) interpreted the respective school policies to forbid images of firearms on clothing, whether as part of a pro- or anti-gun message, and did not interpret the policies to cover words or phrases supporting or opposing gun rights. The plaintiff students were asked to cover up the clothing with images of firearms but not disciplined in other ways.

The district court assessed the claims through the First Amendment framework that applies to student speech, deriving principally from Tinker v. Des Moines Independent Community School District and its progeny. Construing the law to require a more relaxed standard when dealing with a viewpoint neutral policy (as the court described the polices at issue), the judge framed the core question as “whether the restriction on student expression is reasonably related to legitimate pedagogical concerns.” The court held that the policies were so related.

The intersection between guns and speech, and the arguments about guns as speech (whether expressively, as in claims made about open carry protests, or literally, as with depictions of guns on T-shirts), are only likely to become more important as the Supreme Court continues fleshing out Second Amendment doctrine. Among many others, Tim Zick, Greg Magarian, Eugene Volokh, Mike Dorf, and most recently Danny Li have written closely about this relationship between First and Second Amendment values. And I have recently detailed in a forthcoming article how states are continuing to expand gun rights outside the Constitution in ways that further escalate the likelihood of conflict and contestation.

Today we’re highlighting several articles that were recently published or were recently uploaded to Westlaw. In keeping with past trends, there are both arguments that put forward an expanded notion of gun rights and those with a narrower view.

• Rene Perez, From Threat to Victim: Why Stand Your Ground Laws Are Inherently Prejudiced and Do Nothing to Further Justice, 18 Hastings Race & Poverty L.J. 67 (2021)

The Abstract (footnotes omitted):

Stand Your Ground laws give jurors too much leeway in determining what constitutes a reasonable threat in defense cases. By removing the traditional duty to retreat, the reasonableness determination makes or breaks a case and inherently discriminates against people of color. This is because reasonableness can all too easily become a character determination instead of an objective adjudgment. Because Stand Your Ground is present at the investigator’s discretion stage, the prosecutorial discretion stage, and finally the judicial stage through jury instructions and juror bias—there is a unique platform for implicit bias to dictate how defendants are advantaged or disadvantaged in their defense. This article examines the history of Stand Your Ground and how it has affected people of color, particularly Black men. The effectiveness of Stand Your Ground on violence, in general, is also examined. Finally, selected solutions are offered in the form of a change to normative reasonableness standards and removing the civil and criminal immunities granted by Stand Your Ground statutes.

• Rolf Tilley, Locked and Eroded: The Right to Keep and Bear Arms in the Era of Trigger Lock Laws, 61 Jurimetrics J. 267 (2021)

The Abstract:

Long before the American War of Independence, English and Welsh subjects enjoyed the right to bear arms under the English Bill of Rights of 1689, which ensured that Protestants would not be persecuted should a Catholic monarch ascend the throne. British American subjects enjoyed no such right enforceable against the Crown. After the United States achieved independence, the Articles of Confederation failed to create an equivalent right enforceable against the federal government. When the Articles proved to form too weak a Union, the Constitutional Convention convened to strengthen the federal government. In response to state sovereignty concerns, the Bill of Rights was drafted to limit federal power under the new Constitution. It was against this backdrop that the Second Amendment was passed and ratified to safeguard individual liberty and a federalist power balance. Since the Supreme Court decided Dist. of Columbia v. Heller in 2008, courts have applied an originalist reading to the Second Amendment, construing it as codifying a preexisting individual right centered around self-defense. In the decade since Heller was decided, “smart” firearm technology, including embedded electronic safeties, has been developed and commercialized. Some proponents of firearms control contend that trigger lock requirements are constitutional because they pose only a de minimis restriction on Second Amendment rights. Biometric trigger locks that lower the risk that the firearm’s owner would be prevented from accessing the weapon for self-defense purposes are available commercially. However, laws requiring that owners secure their weapons’ trigger locks unconstitutionally infringe on citizens’ right to “keep and bear Arms.”

• Philip Schuster & David Park, Shocking the Conscience: Whether the Right to Bear Arms Overrides the Due Process Right to Life, 56 Willamette L. Rev. 109 (2020)

From the Introduction (footnotes omitted):

This article advances a bold new principle. Now that the doctrine of incorporation has made the Second Amendment applicable to the states, passage of this amendment through the Fourteenth Amendment’s Due Process portal gives states and the people renewed vitality to protect the due process right to life. The article harkens back to the post-civil war Reconstruction Era, and the passage of the Fourteenth Amendment. New insight is uncovered into the interplay between the right to bear arms and the role government and the people were expected to play in ensuring public safety and the protection of life.

The authors posit that the core fundamental right to bear arms for self-defense changes the further one travels from the “hearth and home;” the right intersects with the natural right to the life liberty-interest at a shifting, “evolving point.” This point is the intersection where circumstances dictate that one right must yield to the other right. Those circumstances include the location of the threat, the lethality of the threat, and the persons involved.

This article examines various circumstances where the fundamental right to bear arms might be juxtaposed against the Due Process right to life liberty-interest and associated Bill of Rights guarantees, including the states’ Tenth Amendment police power. The authors conclude that these competing fundamental rights are best judicially reconciled, each with the other so as to fix the “evolving point,” through faithful adherence to the intermediate scrutiny standard of review. Finally, this article critiques federal legislation protecting gun manufacturers and distributors, as well as newly-enacted gun legislation in the states of Washington and Florida. The authors evaluate these standards in the context of the “evolving point” and “intermediate scrutiny” principles developed in the article.

In a really interesting cert petition filed last week, the petitioner challenges a state court’s refusal to give a jury instruction on self-defense as violating federal law. In Keahey v. Marquis, this question involves the interplay between the Antiterrorism and Effective Death Penalty Act, which governs (among other things) arguments that a prisoner’s rights were violated in a state trial, and the Sixth, Fourteenth, and even Second Amendments. The appeal is from a Sixth Circuit opinion by Judge Jeffrey Sutton concluding that the Supreme Court has never squarely established a federal right to a self-defense instruction and denying relief.

The underlying case involved a melee between petitioner Keahey and a man named Hampton. The stories differ among participants and parties, but all seemed to agree that Hampton had stabbed Keahey two weeks prior to the event in question. On the day of the event, Hampton appeared unexpectedly at a location where Keahey was picking up his kids. Keahey claimed that Hampton charged at him with a knife, and then later pulled out a gun to shoot at him. Prosecutors claimed that Keahey started shooting at Hampton to retaliate for the prior stabbing. The trial court refused to give a self-defense instruction on the grounds that Keahey started the fight and that he did not retreat from the fight before shooting. (Note that at least part of the court’s refusal to give the instruction was based on the notion that Keahey did not retreat. Ohio recently changed its self-defense law, adopting a stand-your-ground regime that does not require retreat, so this factor would no longer be relevant in Keahey’s case.) The jury convicted Keahey of attempted murder.

Keahey exhausted his state court appeals, which were unsuccessful, before filing for habeas relief in federal court. To merit habeas relief, a state petitioner has to show (among other things) that a state court ruling was “contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.” The Sixth Circuit ultimately affirmed his convictions after concluding that (in the words of the cert petition) “there was no clearly established law involving a self-defense instruction so the state appellate court’s decision could not have contradicted or unreasonably applied [the Supreme] Court’s precedent.” The court also (again in the words of the petition) concluded that “the Constitution does not safeguard the right to assert self-defense as a defense to a criminal prosecution.”

The cert petition contends that the case merits Supreme Court review because the Sixth Circuit’s decision created a circuit split with two other circuits, the Second and Ninth. Focusing on history and the Second Amendment, the petition goes on:

The Sixth Circuit’s holding could render the Second Amendment’s right to self-defense meaningless whenever a citizen actually exercises that right to protect himself. This flouts the Second and Sixth Amendments, this Court’s precedent, and history which all confirm the right to exercise self-defense and then assert it as a defense to a criminal prosecution is safeguarded by the Constitution.

One key issue is whether the Supreme Court has held or implied a fundamental federal right to a self-defense instruction. The Sixth Circuit considered the state court’s failure (to the extent there was one) to be a failure to follow state law, which does not merit habeas relief. Keahey, on the other hand, argues that Supreme Court precedent and history show that a self-defense instruction is a federal right because it did not allow him to present a complete defense. As he says, “[t]he historical record and early case law confirm that self-defense and having a jury weigh the merits of that defense rank as fundamental.” He describes a self-defense instruction as an integral component of the Second Amendment. (Eric Ruben has written persuasively about the ways that Heller’s discussion of self-defense doesn’t exactly map onto traditional self-defense doctrine.)

A new article out last week analyzes 25 prior empirical studies that examine the effects of stand-your-ground laws on population health outcomes. In Effects of Laws Expanding Civilian Rights to Use Deadly Force in Self-Defense on Violence and Crime: A Systematic Review, Alexa Yakubovich and co-authors conclude that the evidence shows these laws have not reduced violent crime and that “[i]n at least some US states, most notably Florida, stand-your-ground laws have been associated with increases in homicides and there has been racial bias in the application of legal protections.” They discuss the evidence that dozens of researchers have collected in assessing the impact of stand-your-ground laws on a variety of metrics. Evidence suggests these laws tend to increase violent crime, not decrease it as prominent supporters of the law suggest. And with respect to racial disparities, the studies out of Florida—one of the most heavily studied jurisdictions—tend to suggest that black deaths matter less than white ones. A homicide is more likely to be ruled justifiable if the victim is black, even controlling for other characteristics of the encounter.

Despite such evidence, much of which has been well-known for years, states are continuing to adopt stand-your-ground laws—most recently in Ohio. This trend is part of a larger project of statutory gun-rights expansion that I chronicle and describe in, Securing Gun Rights By Statute: The Right To Keep and Bear Arms Outside the Constitution, forthcoming in the Michigan Law Review. The disjunction between what the social science shows and what states are doing may also be evidence for Dan Kahan’s theory that the debate over gun rights and regulation is not about whoever has the better empirical argument, but over culture. Instead of data and statistics, Kahan argues, it is “cultural allegiances and outlooks that determine citizens’ attitudes toward gun control.”

Florida set off the modern wave of stand-your-ground laws in 2005. Its law not only provides that an individual need not retreat before resorting to deadly force in any place he has a right to be, but also grants civil immunity and immunity from arrest, prosecution, and charging to a person who kills in self-defense. The Florida law also expands one’s authority to use deadly force. Under common law and the Model Penal Code, deadly force cannot be used to protect property, but only, in the MPC’s words, “to protect [oneself] against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat.” Florida permits deadly force to prevent any “forcible felony,” which includes things like carjackings and burglary.

Even though this law broadly permits use of deadly force in situations in which it might not be strictly necessary, let alone socially desirable, there are calls to expand it even more. In the past few weeks, Florida Governor Ron DeSantis has called for legislators to amend the law as part of what he calls his broader “anti-mob legislation.” DeSantis wants the definition of a “forcible felony” expanded to include three additional offenses that would justify a person using deadly force to prevent: (1) looting, which the legislation defines as “committing burglary within 500 feet of a violent or disorderly assembly”; (2) “criminal mischief that results in the interruption or impairment of a business operation,” and (3) “arson that results in the interruption or impairment of a business operation.”

That proposal would constitute a vast expansion of authority to use deadly force. And even if a person is not successful in invoking the statute in a particular situation, the law itself can often shape perceptions about when it is permissible to use force. Stand-your-ground laws are one of the few areas of gun laws that the RAND Corporation has found enough data to support drawing a conclusion about their effects: that these laws lead to an increase in firearm homicide.

[Ed. note: This guest blog post is part of the Center’s Mini-Symposium on papers presented at the 2020 Firearms Law Works-in-Progress Workshop.]

Does inter-personal self-defense necessarily implicate the political order under which it is exercised? Many moral philosophers, as well as many gun rights advocates, argue in the negative. The justification for a defensive act against an aggressor hinges, they say, on whether the aggressor rendered herself “liable” to be killed by posing an imminent, serious, illegitimate threat to the defender; or that it is the lesser of two evils that the aggressor rather than the defender is the one to lose their life. Such rationales ostensibly hold no matter where and when the situation occurs. Others believe that self-defense is a political no less than a moral situation. That is, that the relevant actors in such situations are not just the aggressor and the defender, but also the collective and the institutions it set up. One example of such a position was articulated by the late criminal law theorist Sanford Kadish. Kadish argued that when a person defends herself against an attack by another person, she is really exercising a right against the state: the defender asserts the “the right of every person to the law’s protection against the deadly threats of others.” The state’s failure to protect the defender is what gives rise to her moral right to ward off the threat that she is faced with, and hence the state bears responsibility for the violence that ensued.

I want to sketch the suggestion that since D.C. v Heller, the Second Amendment also protects a right to self-defense against the state, but of a diametrically opposed kind. Heller’s right against the state arises not when it fails to protect subjects but when it fails to let them protect themselves. To wit, the Hellerian self-defender has a protected interest in exercising his moral judgment of a threatening other—to see to it that this judgment becomes a reality, and to restrict the state’s involvement to an ex post assessment of the legitimacy of his violence.

Kadish grounds his view of self-defense in social contract theory, which predicates the legitimacy of government on granting individuals greater protection than they would have without it. He cites leading philosophical authorities such as Thomas Hobbes and John Locke, but some qualifications are necessary before ascribing his view to either of the two founders of modern social contract theory.

Hobbes indeed held that the sovereign is under a duty to protect the citizenry from physical harm, yet this duty is not a product of individual rights. Rather, it is a matter of equal representation. The sovereign’s legitimacy hinges on representing the will of each and every subject, whose first priority is preserving life and limb. Where the Hobbesian sovereign is absent—or when his power is directed against oneself—one cannot be blamed for protecting oneself; but this is a matter of mere necessity. Hobbes lists individual entitlement to privately judge the moral virtue of actions among “the Diseases of a Common-wealth, that proceed from the poyson of seditious doctrines” [sic]. Private violence—no matter the moral presumptions that guide it—is the primary evil that government ought to eradicate; and it inevitably flows from private will unrestrained by political authority. In order for violence to be justified, not just excused, it needs to represent public rather than private will.

Notwithstanding important discontinuities between Hobbes’s framework and Kadish’s, they are roughly compatible in the sense that both mandate equal protection of all citizens while rejecting the establishment of a moral hierarchy between them.

By contrast, the main problem in a Lockean state of nature, to be resolved by the erection of a civil order, is not violence but injustice. Per Locke, each of us is entitled to determine what justice demands, by private appeal to a pre-fixed natural moral order, and to act accordingly. Setting up a political order helps to realize justice, but it remains the case that political authorities have no monopoly over the articulation and implementation of morality. Thus, Locke not only accommodates but facilitates subjects’ claims of moral superiority over others and subsequent assertion of the power to act on such claims, regardless of social structures. Each individual still possesses the power to make his moral judgment of others a legal reality—utilizing the spectrum of self-help actions stretching between civil disobedience and vigilantism. It is unsurprising that the Lockean framework, which places autonomy interests on a higher footing than safety interests, sits more comfortably with American ideology.

This is the thrust of today’s Second Amendment. The Heller Court ruled that Americans have an individual right to the effective possession and use of the means of self-defense against threats posed by other individuals. The person Heller imagines is not primarily wary of tyranny but of criminality. Among other rhetorical mechanisms, the court used the language of natural rights to justify the result it reached, seemingly employing the strictly moralistic position regarding self-defense. But this is faux naïveté. In both the worldview it expresses and the reality it creates, there is nothing natural about contemporary Second Amendment jurisprudence. Quite the opposite: it actively designs the public sphere.

As an expressive matter, the Constitution is where Americans turn to figure out their identity as a political collective and as the individuals that comprise it. At the core of these identities, Heller tells us, is, among other things, self-defense. For it enjoys auxiliary protection in the Bill of Rights: self-defensive activities, via the means of the gun, belong in the group of basic entitlements we ought to be free to enjoy without state intervention. Self-defense is elevated to a benchmark of political subjectivity. The moralistic hue it is given further implies that as a matter of natural justice, whoever possesses armed might must deserve the right to use it, and whoever finds themselves at the receiving end must be similarly deserving. Post-Heller Second Amendment rights seek to make self-defense as effective as possible, conveying the message that this effectiveness is a requirement of American identity. One must therefore find threats to defend oneself against. The legal and political climate that serves as a backdrop for Heller—with such regimes as Stand Your Ground laws and citizen’s arrest—offers an abundance of such opportunities and then renders their seizing justified.

As opposed to other criminal justice mechanisms that serve vital political functions, Hellerian self-defense closes rather than opens the space for public officials’ discretion. It eschews public interest and public reason to insert private ones in their stead. If for Hobbes and Kadish an instance of self-defense marks a political problem, for Heller it signals that all is going well.

What happens when the person you “stand your ground” against turns out to be a police officer trying to do his job?

On August 20, 2015, John Derossett engaged in a forty-round gunfight with plainclothes deputies of the Brevard Sheriff’s Office.  They were attempting to arrest Derossett’s adult niece for prostitution following an undercover sting operation; Derossett believed them to be intruders trying to kidnap her.  One of the deputies was severely injured but survived.  The state charged Derossett with first degree felony attempted murder of a law enforcement officer; Derossett responded that Florida’s Stand Your Ground law afforded him immunity from prosecution. In a remarkable opinion issued just last month, the Florida Court of Appeals held that Derossett was entitled to claim immunity under the Stand Your Ground law.

Florida has some of the most gun-friendly statutes in the country.  Among them is its extraordinarily protective Stand Your Ground law.   As with many other states, Florida has abandoned the traditional common law obligation to retreat when confronted, and instead allows use of deadly force whenever the person reasonably feels it is necessary to prevent imminent bodily injury or forceable felony, wherever the person happens to be.   Florida has also strengthened and codified the traditional “castle doctrine” that permits lethal force to defend one’s home or others therein.  The exceptions to this statute include where the defendant knows or reasonably should have known that he was shooting at law enforcement, and where the defendant uses his dwelling to further criminal activity.

Perhaps the most novel feature of Florida’s Stand Your Ground statute is its immunity provisions.   Self-defense traditionally has been conceived as a defense to civil or criminal liability.  The defendant is charged with a crime or civil wrong, and the defendant produces evidence of self-defense that entitles him to exoneration.  In some states the defendant bears the ultimate burden of proof; in others the burden shifts back to the prosecution.  But in either case, the process is usually addressed as part of an ordinary criminal proceeding.

Florida has essentially fast-tracked the self-defense determination in its statute.   Under the terms of the statute, immunity protects a claimant from criminal charges, conviction, civil liability and even arrest for any use of force deemed covered by Stand Your Ground.  Once a defendant makes a prima facie showing of self-defense (an extremely low bar), it is up to the state to show by clear and convincing evidence that the defendant’s gunfire was not justified by Stand Your Ground.

In Derossett, the court immunized the defendant because the police had not demonstrated by clear and convincing evidence either of the two exceptions to Stand Your Ground:  that Derossett knew or should have known he was shooting at police officers, or that he was using his house to further prostitution (as opposed to simply being aware that his niece was doing so).   Understandably, the police were upset by the conclusion, with a spokesperson for the county reporting to a local news agency: “Our law enforcement officers risk their lives daily to protect our community,” [and] “This ruling adds to that risk by extending protection to those who turn a blind eye to criminal activity, even within their own home.”

Derossett and application of Stand Your Ground against law enforcement is most likely to occur in those fast-paced, split-second scenarios where police do not clearly identify themselves or are not identifiable by their dress or vehicles.   In ordinary police encounters, this may not be an issue; but a significant portion of police work today involves sting operations and undercover investigations.  No-knock warrants and similar exigent procedures, designed to prevent suspects from escaping or destroying evidence, are already hazardous for police agents.   Stand Your Ground may complicate these kinds of law enforcement actions in Florida.  To the extent Stand Your Ground also extends its immunity to defense of others, it may also complicate scenarios in which persons, not immediately identifiable as law enforcement (such as plain clothed or off-duty officers) are confronted with deadly force by civilians who mistake the law enforcement official for a criminal.  Uncertain is the role of Stand Your Ground when a defendant clearly knows the person is law enforcement, but believes that the officer is about to use imminent and excessive force on the defendant or on others, as I wrote about here.        

In general, the law structures encounters between police and civilians to err on the side of police safety and public order.  It’s illegal to resist even an unlawful arrest in most states.  Many jurisdictions, including Florida, single out violence against law enforcement officials for particular sanction.  Fourth Amendment doctrine and criminal law tends to favor law enforcement when there’s some reasonable mistake that leaves civilians dead or injured.

Florida’s Stand Your Ground law, at least in cases like Derossett, may push the needle in the opposite direction.  It may offer civilians the benefit of the doubt when they use deadly force against police officers in cases where there’s a mistake or confusion, in a way that the drafters of the law may not have intended.