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November 23, 2013

"Duty to retreat is a safeguard"

The title of this post is the headline given to this letter to the editor in our own Columbus Dispatch authored by John Gilchrist, the legislative counsel to the Ohio Association of Chiefs of Police.  The whole letter is worth a read, and it starts and ends this way:

The Ohio Association of Chiefs of Police is opposed to the “stand your ground” provision of House Bill 203, which repeals a person's duty to attempt to retreat from danger, if possible, before resorting to deadly force against an attacker.  There is no problem with the current law.  Current law balances societal interests.  There are strong public policies for preserving the sanctity of life on one hand and, on the other hand, for allowing one to protect himself from harm....

[R]epealing the duty to retreat is a recipe for more violence, whereby killings currently considered to be criminal will become justifiable homicides.

Remove the duty to retreat and you remove a legal restraint that will allow pride, passion and ego to prevail over common sense.

November 23, 2013 in Current Affairs, Reflections on class readings | Permalink


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These are my thoughts. I apologize they are not organized.

I am a huuuuuge fan of "stating things differently".

Gilchrist uses this phrase in the letter to the editor to demonstrate his opinion of the opinion of the Association of Chiefs of Police (pretty specific group):

"Stated differently, repealing the duty to retreat is a recipe for more violence, whereby killings currently considered to be criminal will become justifiable homicides."

This is not what the assoc. is saying. This is what Gilchrist is saying the assoc. is saying. If the Assoc. or the law was actually saying this, you would not have to "state it differently". Just removing one more step from the actual meaning from the language.

Here's a link to Ohio SB 203:

Section 2901.09 is where the duty to retreat is located. You can see the proposed changes (strikethroughs are being omitted and underlines are being added).

Here 2917.31(2) is an interesting limitation:
(2) The exercise of a constitutional or statutory right is not, in itself, a violation of this section and does not constitute reasonable, articulable suspicion of criminal activity.

THere is a ton of new stipulations for concealed-carry permits. many exceptions to these new rules:
(p) The applicant has not been discharged from the armed forces of the United States under dishonorable conditions.
Seems interesting considering the gun control act Lyndon Johnson signed in the 60s already prohibits dishonorable dischargees from owning firearms.

HA! They dropped the training requirement time from 12 to 4 hours:
...or program described in one of those divisions shall include at least FOUR hours of training in the safe handling and use of a firearm that shall include training on all of the following matters:"

This is great!

I'm gonna watch the browns at 1:05.
By 4:15 I will LITERALLY want to shoot someone.
So, I'll go take a concealed-carry class.
Stuff a Beretta in my sock. (Or splurge and buy a holster for 22$ on eBay.)
And when I'm done at 8:15 I have 15 minutes to find a bar that doesn't have that "No smoking" sign for Guns so I can watch what "real" football looks like with Manning and Brady kicking off at 8:30. Knowing I am protected from any meanies who make fun of my Tim Couch Jersey.

Way to go Ohio.

Posted by: Christopher Sponseller | Nov 23, 2013 11:17:03 AM

First thing that jumped out at me:

"One witness stated that the mandate that you must flee puts you in a foot race with your attacker, who may just shoot you in the back as you flee. Other proponents talk about the elderly, the infirm and those who are wheelchair-bound being unable to safely flee a confrontation."

While the letter accurately says this demonstrates a misunderstanding of the law, I think it's what people really feel about the duty to retreat. They *feel* that the state is telling them protecting the life of the attacker is equally important to protecting yourself.

BUT the alternative - No duty to retreat? Well this is also a terrible idea. Especially because we give this the title "stand your ground." Legislators could not come up with a more loaded label if they tried. "Stand your ground" isn't a act, it's an attitude and one that carries a lot more weight with constituents than "a person who is lawfully in that persons residence ..etc etc" i.e. the actual law. People read buzzwords not black letter. This, to me, is the major downfall of stand your ground laws. Are there limits on these provisions of self-defense? Of course. Do people know what they are? Of course not. What I read is that if I feel my safety is being threatened, I get to use deadly force right then and there.

What's' the difference when there is a duty to retreat?

Nothing! Because when there is a real threat, and there is a real need to defend oneself, the law allows you to do so. The "duty to retreat" if there is such a place available doesn't change things in the face of real danger. If you didn't think there was a place to retreat, and you are reasonable, a jury probably will think so too!

What stand your ground provisions do is remove that millisecond of thought that goes through one's brain that says, "Am I in real danger?" and gives the not-so-reasonable among a starting line when the kill someone after a bar brawl. Further! It almost discourages the thought that someone ought not go to places reasonably perceived to include some element of danger. After all, you can just stand your ground.

Stand your ground provisions do nothing substantive, in my opinion. They don't change the game or give power to the people. They discourage rationale action and true appraisal of one's circumstances.

Posted by: Elizabeth Young | Nov 23, 2013 12:21:44 PM

I took a class during my junior year of college called Gender, Race, Class and Crime. My group's final project was to analyze Stand Your Ground laws across the US as a matter of policy and evaluate their so-called effectiveness. It's interesting to re-evaluate these issues with the more in-depth info from our Crim Law course.

Proponents of the law argue that a right to 'stand your ground' is rooted in legal precedent (i.e. see Beard v. US, Brown v. US). By promoting this law, states purport to be defending an individual's right to bear arms and exercise self-defense. In a utilitarian vein, legislators might also argue that it is their duty to protect citizens from future aggressors and criminals alike.

While these goals are noble and, in my opinion, legitimate, (my group and) I would tend to echo Elizabeth's sentiments. This law is well-intentioned, but it looks better on paper than it works in practice. I'm still not convinced that SYG laws are the best mechanism by which to further the ultimate goal of citizen protection, and I don't know what else is. Given the widespread inactivity by legislatures across the country to correct the problem, I don't think they do either.

These laws provide an awful lot of 'judgment calls,' effectively rendering the individual claiming self-defense judge, jury and executioner. Judge and jury - because the individual has deemed self-defense appropriate AND applicable in their fact specific situation, and executioner because such force is presumably lethal. Such judgment calls create an uneasy amount of subjectivism under the law.

Needless to say, not much has changed in the two years since my group studied the laws. The widespread public concern back then still exists today, as does the skepticism that legislators do not actually know the intricacies of how this law will play out in real-world situations, and courts do not know how to properly enforce such laws. For better or worse, we should at least give Ohio credit for giving this pressing issue attention, where many other states are simply ignoring it.

As was the case in modern rape laws, there are issues in SYG laws with vagueness of language (who is the aggressor? can both be? what is reasonable?) Oftentimes in both crimes, the 'defender' and the 'aggressor' are the only two individuals involved in the altercation. How do we deal with this difficulty?

Two years ago when I studied this, the most shocking observation made by my group was the total lack of transparency by states in releasing statistics of how often and in what situations the SYG defense was used. After some brief research, I have yet to find a satisfactory side-by-side comparison of the homicide conviction rates of states with/without SYG laws. Certainly this lack of government transparency is not helping get to the root of the issue, which is ultimately finding a balanced compromise between the right to self-defense without taking that right to the extreme.

Posted by: Kelly Flanigan | Nov 23, 2013 4:02:41 PM

I think especially from a civil liberties standpoint, the "duty to retreat" gives lots more discretion to prosecutors and gives them an additional tool to increase incarceration rates - especially among minorities. Defendants seem to have a higher burden to prove self-defense if they have a duty to retreat. Prosecutors can point to evidence that there may have been an opportunity to retreat to disprove defendants' self-defense claims. Stand your ground laws, by contrast, empower defense attorneys and public defenders to assert self-defense. Based on the data, it looks like removing this club from the hands of prosecutors helps minorities avoid incarceration. Consider the raw numbers:

--In the state of Florida, African-Americans invoked the stand your ground defense roughly twice as often as whites as percentage of population.
--"Forty four African Americans have claimed a 'Stand Your Ground' defense. Of these claims, 24 were considered “justified” (55 percent), while 11 resulted in convictions and nine cases are still pending."
--"Of the 76 white people who have used the defense, 40 were considered 'justified' (less than 53 percent), while 25 were convicted and 11 cases are still pending."
--The majority of individuals killed by defendants claiming "stand your ground" defenses have actually been white.

The utilitarian concern is that delusional Clint Eastwood-esque Egotists will look for confrontations where they can get away with taking out their annoying neighbors. They see the Zimmerman/Martin incident as proof-positive that minorities will be stereotyped and shot. In reality, prosecutors who might try to go after a minority defendant lose one of their instruments of power. SYG means public defenders no longer bear the burden of proving their clients did everything possible to avoid using deadly force.

In a world of swords, knives, and bows one could usually retreat to the proverbial wall. Now that criminals have rendered our nation "No Country For Old Men," do you want to have to try to make a "reasonable" decision about whether or not you can get away when faced by the hydraulic shotgun? More importantly, do you want prosecutors to have an easier time convicting the 19-year-old African American Tony Hayward who defended himself from a potential attacker while he was delivering newspapers?

Better 10 guilty go free than one innocent convicted; stack the deck in favor of those who claim self-defense.

Posted by: Elliot Gaiser | Nov 23, 2013 4:41:44 PM

Re: Kelly, in the principles underlying our nation, sovereignty rests with the individual and the right and duty to defend ones self remains with the people. The 10th amendment states those powers not given to the federal government are retained by the states or the people. We rarely talk about what powers are left to the people - and I think one of those powers is the power to defend yourself. The police are not under any general duty to defend you and can rarely be held accountable when they fail to do so (see Torts). To borrow the catch phrase, when seconds count the police are minutes away.

Now, even the sovereignty of the individual is given oversight - and prosecutors and judges and juries will hold those who abuse their power of self-defense to account. But the cards should be stacked to presume the power is of the individual to defend him or herself is within his or her prerogative. Like a Roman Consul, the innocent American citizen ought be given wide discretion in the heat of the moment. And as noted, it usually benefits minorities who might otherwise be convicted. While Lord Coleridge balks at giving the individual who will benefit the right to evaluate necessity, "the handmaiden of tyrants," I think he would say allowing the individual great discretion in deciding if self-defense is appropriate is just.

Re: Elizabeth - I think burdening defendants with a requirement to prove they evaluated the situation and did so correctly is substantively shifted by these laws, and for the better. It would probably lead prosecutors to concentrate on the kind of people we want them to convict, and steer them away from a black teen who claims he was defending himself in a place he had a right to go.

Also, we want to reduce the number of "unsafe" places in the country. We want innocent people to be able to walk into Anacostia, Eastern Detroit, and the South side of Chicago without fear. We as a society express through "justification" that we are not upset when an innocent person shoots and kills and aggressor because we want to reduce aggressors and aggression. We want innocent citizens to be safe wherever they go. We don't want to accept there are just places "you don't go." I think we want to increase the likelihood you will get harmed if you start a bar brawl so as to discourage starting bar brawls. Pretty utilitarian of me, I suppose?

Posted by: Elliot Gaiser | Nov 23, 2013 4:52:48 PM

I believe a lot of the resistance to eliminating a duty to retreat arises because people think it is a foreign and untested doctrine. In fact, requiring the duty to retreat is the minority rule in the United States, with only 19 states requiring it.

States where their legislatures have recently passed “stand your ground” laws have gotten the most media attention. But many states have had this doctrine for over 100 years, and they don’t fall nicely into” red state” or “blue state” categories. For example, California hasn’t required a duty to retreat for over a century. Below is the link to an 1880 case that mentions one doesn’t have a duty to “fly” in certain situations.

After the handling of the Zimmerman case, the duty to retreat has become politicized. Many people are taking sides on this issue based only on their political ideology not an actual understanding of the doctrine (I wouldn’t say this applies to this class).

Posted by: Vincent | Nov 25, 2013 11:04:26 AM

Given our recent discussion of self-defense/justifications/excuses, couldn't resist posting this:


Kids playing a game called 'knockout,' where teens walk up to strangers on the street and deliver a blow to the head to attempt to knock the innocent victim unconscious to prove who is the strongest/toughest. It recently gained the attention of the media when a 60-year-old woman in a dangerous neighborhood pulled a gun on the group of teenagers, and while the boys were retreating, she put a bullet into two of their backs. Charges are currently being considered for her conduct.

Posted by: Kelly Flanigan | Nov 25, 2013 2:59:27 PM

Kelly, interesting post. Seems more like a question of imminence and immediacy of harm if they are running away from her, rather than a "duty to retreat" sort of question.

Posted by: Elliot Gaiser | Nov 26, 2013 9:16:12 AM

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