Shoot First

'Stand Your Ground' Laws and Their Effect on Violent Crime and the Criminal Justice System

by Mayors Against Illegal Guns

September 18, 2013

In September 2013, Mayors Against Illegal Guns released Shoot First, a comprehensive review of Stand Your Ground laws and how they affect public safety and the criminal justice system. The report explains how Stand Your Ground statutes have expanded the circumstances in which people are allowed to use deadly force, and have created legal hurdles that make it harder to hold shooters accountable.

Executive Summary

On July 13, 2013, George Zimmerman was acquitted of all charges in the death of Trayvon Martin, an unarmed black teenager whom Zimmerman had shot and killed the previous year. The jury, based on Florida’s law, was instructed: “If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force…”http://media.cmgdigital.com/shared/news/documents/2013/07/12/jury_instructions_1.pdf

One of the jurors stated publicly that “Stand Your Ground,” Florida’s expansive self-defense statute, was a key factor in the jury’s verdict.“Anderson Cooper 360 Degrees transcript,” CNN, July 15, 2013, available at http://transcripts.cnn.com/TRANSCRIPTS/1307/15/acd.01.html; Marc Caputo, “Juror: We talked Stand Your Ground before not-guilty Zimmerman verdict,” Miami Herald, July 18, 2013, at http://www.miamiherald.com/2013/07/16/3502481/juror-we-talked-stand-your-ground. html#storylink=cpy

Martin’s death and Zimmerman’s acquittal drew attention to “Stand Your Ground” or “Shoot First” laws, which have proliferated since the NRA successfully lobbied the Florida legislature to pass the first in 2005. These laws are now on the books in 22 states.Alabama: 2006 Al. ALS 303; Alaska: 2006 AK. ALS 68; Arizona: 2006 Ariz. ALS 199, 2010 Ariz. ALS 327, 2011 Ariz. ALS 353; Florida: 2005 Fl. ALS 27; Georgia: 2006 Ga. ALS 599; Indiana: 2006 Ind. ALS 189, 2012 Ind. ALS 161; Kansas: 2006 Kan. ALS 194 , 2010 Kan. ALS 124, 2011 Kan. ALS 30; Kentucky: 2006 Ky. Acts 192; Louisiana: 2006 La. ALS 141; Michigan: 2006 MI PA 309; Mississippi: 2006 MS ALS 492; Montana: 2009 Mont. Laws 332; Nevada: 2011 Nev. Als 59, Assembly Bill 321; New Hampshire: 2011 NH ALS 268, 2010 NH ALS 361; North Carolina: 2011 NC ALS 268; Oklahoma: 2011 Ok. ALS 106, 2006 Ok. ALS 145; Pennsylvania: 2011 Pa. ALS 10; South Carolina: 2006 SC ACTS 379; South Dakota: 2006 SD ALS 116; Tennessee: 2007 TN ALS 210, 2008 TN ALS 1012, 2009 Tenn. ALS 194, 2012 Tenn. ALS 627; Texas: 2007 Tex. ALS 1; West Virginia: 2008 W.V. ALS 23. Since the shooting of Trayvon Martin, legislators in at least 11 states — including Florida — have introduced legislation to repeal or scale back their Stand Your Ground laws. On June 7, 2012, Louisiana became the first state to pass reform legislation.2012 La. SB 738 Leaders in Florida convened two task forces to assess how these laws affect public safety, and the U.S Commission on Civil Rights launched a special investigation into the association between racial bias and Stand Your Ground laws. More recently, the United States Senate and the Florida House of Representatives have announced that they will hold hearings to review these laws and their implications.

This report provides a comprehensive review of Stand Your Ground laws and how they have affected public safety and the criminal justice system. It explains how Stand Your Ground statutes have dramatically expanded the circumstances under which people are permitted to use deadly force and have created legal hurdles that make it more difficult for law enforcement to hold shooters accountable. The report also shows that Stand Your Ground states have on average experienced a 53% increase in homicides deemed justifiable in the years following passage of the law, compared with a 5% decrease in states without Stand Your Ground statutes during the same period — an increase disproportionately borne by the black community. Finally, the report provides a state-by-state analysis of each of the 22 state Stand Your Ground laws.

Introduction

When George Zimmerman shot an unarmed 17-year-old named Trayvon Martin on February 26, 2012 in Sanford, Florida, police initially declined to file charges against the shooter, arguing that they were unable to refute Zimmerman’s claim of self-defense. Sanford city officials gave the following explanation: “By Florida Statute, law enforcement was PROHIBITED from making an arrest based on the facts and circumstances they had at the time.” The city cited Florida’s “Stand Your Ground” statute, which had become law in 2005.Emily Bazelon, “What if Trayvon Martin Was the One Acting in Self-Defense?”, Slate, March 22, 2012, at http://www.slate.com/articles/news_and_politics/crime/2012/03/florida_s_stand_your_ground_law_doesn_t_prohibit_that_they_arrest_george_zimmerman_for_killing_trayvon_martin_.html; Daily News Wire Services, “Trayvon shooter’s tale doubted,” March 29, 2012, at http://articles.philly.com/2012-03-29/news/31254993_1_arrest-warrantvideo-first-police-headquarters.

Long before the recent advent of Stand Your ground laws, traditional self-defense principles gave Americans the legal right to “stand their ground” and use non-deadly force to protect themselves from an attacker, as long as their use of force was reasonably necessary.Beyer v. Birmingham, R., L. & P. Co., 64 So. 609, 611 (Ala. 1914) Prior to using deadly force, however, people generally had a legal “duty to retreat” or take other measures to avoid taking another person’s life if they could do so safely.Francis Wharton, A Treatise on the Law of Homicide in the United States § 485 (1875); Teal v. State, 161 So. 422, 422 (Fla.1935); Beyer, 64 So. at 610. Like other areas of law, this principle encouraged the use of non-deadly force, and favored de-escalation of conflicts when that was possible. Deadly force was legally justified — but only as a means of last resort.Allen v. United States, 164 U.S. 492, 497-98 (1896).

A narrow exception to this rule, the Castle Doctrine, has existed for centuries.Wharton, supra note 7, at § 306; People v. Richardon, 803 N.W.2d 302, 309-10 (Mich. 2011) This principle holds that a person has no duty to retreat before using deadly force if the conflict takes place in his or her own home — the “castle.”Smiley v. State, 966 So. 2d 330, 333 (Fla. 2007).

Stand Your Ground laws, which have upended traditional self-defense law, are statutes that allow people to use deadly force in public places, even if they can avoid the conflict by safely leaving the area. Though often labeled “Castle Doctrine Acts,” Stand Your Ground laws are not about the right to defend oneself at home. Instead, they expand that narrow exception to apply everywhere, making it the rule instead of the exception.See, e.g. Fla. Stat. § 776.013(3). Under these laws, everyday confrontations in bars, on highways, even in parks and playgrounds, can — and do — escalate into deadly shootouts.“Florida’s Stand Your Ground Law,” Tampa Bay Times at http://www.tampabay.com/stand-your-ground-law/. And those responsible for taking a life in Stand Your Ground states have, in many instances, evaded prosecution and conviction by asserting that they acted in self-defense.See id.

States that have adopted Stand Your Ground laws have experienced increased rates of overall homicides, firearm-related homicides,See EFFECTS OF STAND YOUR GROUND LAWS. and “justifiable homicides.” This report will show that justifiable homicides increased by 53% in states with Stand Your Ground laws, while decreasing by 5% in states without these laws. After Florida passed its law, for example, its justifiable homicide rate rose 200%.

The impact on the African American community has been particularly dramatic. Among people shot to death in the black population in states with Stand Your Ground laws, the rate of those homicides found to be justifiable more than doubled between 2005 and 2011, while it fell in the rest of the country.

What Are Stand Your Ground Laws?

Criminal laws in our country have always safeguarded the right of self-defense, permitting the use of force to fend off an attack when reasonably necessary.Wharton, supra note 7, at § 480. Before resorting to deadly force, however, people have generally been required to use a lesser degree of force or avoid the confrontation.Id at §§ 480, 485 A centuries-old exception to this “duty to retreat” — the Castle Doctrine — applies in the home, where people are legally allowed to “stand their ground” and use deadly force against intruders without any obligation to retreat.Id at §§ 543-44.

Florida passed a law in April 2005 that applied this “stand your ground” principle to all public places.Fla. Stat. § 776.013(3). Under this law, people have no obligation to de-escalate confrontations or walk away as an alternative to using deadly force.

Marion Hammer, a former president of the National Rifle Association (NRA) and its chief Florida lobbyist in 2005, helped draft and pass the legislation.Ann O’Neill, “NRA’s Marion Hammer stands her ground,” CNN, April 15, 2012 at http://www.cnn.com/2012/04/15/us/marion-hammer-profile/index.html; Michael C. Bender, “Pistol-Packing Grandma Helps NRA Push State Pro-Gun Laws,” Bloomberg, May 11, 2012 at http://www.bloomberg.com/news/2012-05-11/pistol-packinggrandma-helps-nra-push-state-pro-gun-laws.html. Soon after, the American Legislative Exchange Council (ALEC) — a national coalition of conservative state legislators and corporations — adopted a model law based on Florida’s statute. At the time, the NRA was a paid sponsor of ALEC, and an NRA official served as co-chair of the ALEC committee that adopted the model law.Matt Gertz, “ALEC Has Pushed the NRA’s ‘Stand Your Ground’ Law Across the Nation,” Media Matters for America, March 21, 2012 at http://mediamatters.org/blog/2012/03/21/alec-has-pushed-the-nras-stand-your-groundlaw/186459; Lisa Graves, “Resources for Investigating ALEC/NRA Gun Bills,” PRWatch, March 30, 2012, at http://www.prwatch.org/node/11393. Legislators connected to ALEC and the NRA soon began introducing Stand Your Ground laws in states across the country.Id.

Though ALEC titled its model law the “Castle Doctrine Act,” the law actually removes the castle concept by allowing people to use deadly force anywhere they have a right to be, even if there is an obvious, easy, and safe opportunity to leave the danger zone.

Critics argue that these laws encourage armed vigilantism by granting ordinary citizens greater latitude to use deadly force than the law gives even to U.S. soldiers and law enforcement officers. While soldiers and police are trained to defuse confrontations and are required to use deadly force only as a last resort, under Stand Your Ground laws, citizens have no such obligation.Jon Soltz, “George Zimmerman Had More Legal Authority to Kill Than Our Troops Do At War,” April 10, 2012, available at http://thinkprogress.org/justice/2012/04/10/460965/zimmerman-shoot-kill-troops-military/.

Since 2005, 22 states have passed these laws. While at least seven additional states had Stand Your Ground legislation pending at the time of Trayvon Martin’s death, none of these bills have become law.Iowa: HF 2215; Massachusetts: SB 661; Minnesota: HF 1467; Nebraska: LB 298; New Jersey: A 886; New York: S 281; Washington: SB 5418. Since then, at least 11 states, including Florida, have introduced legislation to repeal or scale back their laws,Alabama: 2012 HB 694, 2013 HB 212; Florida: 2013 HB 123, HB 331, HB 4009, HB 799; Georgia: 2012 HB 1308; Louisiana: 2012 SB 738, HB 1100, SB 719; Michigan: 2012 HB 5644; Mississippi: 2013 HB 1040; New Hampshire: 2013 HB 135; North Carolina: 2012 HB 1192; Pennsylvania: 2012 HB 2559, 2013 HB 518; South Carolina: 2012 H 5072; Texas: 2013 HB 3773, SB 1349 and one of these reform bills passed in Louisiana.2012 La. SB 738 Some legislators have said they intend to introduce new Stand Your Ground legislation in the 2013 or 2014 sessions.

How Do Stand Your Ground Laws Change Existing Law?

ALEC’s model Stand Your Ground law and the Florida law on which it was based contain seven key components that distinguish them from traditional self-defense doctrine. Some states have adopted all seven elements, while others have adopted varying combinations of them. For the purposes of this report, a state is only considered a Stand Your Ground state if its statute allows a person to use deadly force — e.g., shoot someone — anywhere the shooter has a right to be, even when there is a clear and safe opportunity to avoid a dangerous situation.

Allowing People to Stand Their Ground in Public

Stand Your Ground states give shooters the right to use deadly force even when there is a safe opportunity to retreat, as long as they are in any place they have a right to be. An additional three states — which are not classified as Stand Your Ground states for the purposes of this report — expand the “Castle Doctrine” only to the shooter’s vehicle,Missouri: 2007 Mo. SB 62; Ohio: 2007 Ohio SB 184; Wisconsin: 2011 Wis. ALS 94. allowing a driver to shoot someone when threatened in his or her car instead of simply driving away.

Permitting Deadly Force in Defense of Property

At least nine Stand Your Ground statesAlabama: Code of Ala. § 13A-3-23(a)(3); Arizona: A.R.S. § 13-411(A); Florida: Fla. Stat §§ 776.031, 776.08; Georgia: O.C.G.A. § 16-3-23(3); Kansas: K.S.A. §§ 21-3212, 21-3213; Kentucky: KRS § 503.080(2)(b); Nevada: Nev. Rev. Stat. Ann. § 200.120(1); Oklahoma: 21 Okl. St. § 643(3); Texas: Tex. Penal Code § 9.42. have statutes that allow a shooter to kill a person to defend property, even if no one is in physical danger — and, in at least one state, even if the perpetrator is fleeing.Texas: Tex. Penal Code § 9.42(2)(B)

The statutes that allow deadly force to be used to defend property fall into two broad categories. Four states allow deadly force to be used to protect personal property, such as money, cell phones, and cameras.Kansas: K.S.A. §§ 21-3212, 21-3213; Nevada: Nev. Rev. Stat. Ann. § 200.120(1); Oklahoma: 21 Okl. St. § 643(3); Texas: Tex. Penal Code § 9.42 This can result in the legally justified killing of people even when the compromised property is of very little value.For example, in June 2012, Benito Pantoja stole $20.29 from the tip jar of a taco truck in Houston, Texas. The owner of the business chased Pantoja and shot him in the back, killing him. Pantoja’s death was ruled a justifiable homicide. See Yang Wang and Dane Schiller, “Texas Justifiable Homicides Rise with ‘Castle Doctrine’,” Houston Chronicle, July 2, 2012, http://www.chron.com/news/houston-texas/article/Killings-deemed-justified-are-on-therise-in-Texas-3676412.php#page-1. Six states permit the use of deadly force to prevent the burglary of an unoccupied building, even if the shooter does not own or control the building, and even if the shooter knows that no one is inside or otherwise in danger.Alabama: Code of Ala. § 13A-3-23(a)(3); Arizona: A.R.S. § 13-411(A); Florida: Fla. Stat §§ 776.031, 776.08; Georgia: O.C.G.A. § 16-3-23(3); Kentucky: KRS § 503.080(2)(b)

Though proponents of these laws claim that they deter criminals, the evidence indicates otherwise. A recent study by Texas A&M University economists found that rates of burglary and robbery are unaffected by the passage of Stand Your Ground laws.C. Cheng and M. Hoekstra, “Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine,” Texas A&M Department of Economics, 29 May 2012, available at http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf. Meanwhile, as this report explains, states that have passed these laws have experienced increased homicide rates.

Creating Presumptions that Shootings are Lawful

Beyond expanding the Castle Doctrine to apply outside the home, the Stand Your Ground laws in 14 states also alter traditional doctrine by creating a legal presumption that shooters in certain locations, such as their home or vehicle, are justified in their use of deadly force.Alabama: Code of Ala. § 13A-3-23(a)(4); Arizona: A.R.S. § 13-411(C); Florida: Fla. Stat. § 776.013; Kansas: K.S.A. § 21-3212a; Kentucky: KRS § 503.055; Louisiana: La. Rev. Stat. Ann. § 14:19(B); Michigan: MCLS § 780.951; Mississippi: Miss. Code. Ann. § 97-3-15(3); North Carolina: N.C. Gen. Stat. § 14-51.2(b); Oklahoma: 21 Okla. Stat. § 1289.25(B); Pennsylvania: 18 Pa.C.S.A. § 505(b)(2.1); South Carolina: S.C. Code Ann. § 16-11-440; Tennessee: Tenn. Code Ann. § 39-11-611(c); Texas: Tex. Penal Code § 9.31. In two states — Arizona and Texas — these presumptions apply everywhere.

Under traditional American legal principles, a defendant is presumed innocent and the government’s prosecutors are required to convince a jury beyond a reasonable doubt that the defendant committed the crime in question.

Layered on top of this exacting “beyond a reasonable doubt” standard, Stand Your Ground presumptions are often effectively irrefutable. If the victim is dead, and there are no other witnesses to contradict the shooter’s claims, the presumption forces authorities to take the shooter at his or her word, regardless of how unlikely and unsubstantiated the shooter’s version of events may be. Additional evidence may be impossible to obtain if the victim was killed and there were no eyewitnesses to or video recordings of the shooting.

Criminal Immunity, Part 1: Preventing the Arrest of Shooters

Typically, police can arrest a person if they have “probable cause” — essentially, a reasonable belief — that he or she has committed a crime, such as shooting another person.See, e.g., F. Andrew Hessick III & Reshma Saujani, Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. Pub. L. 189, 200 (2002); Elise Bjorkan Clare et. al., Twenty-Fifth Annual Review of Criminal Procedure: I. Investigation and Police Practices. 84 Geo. L.J. 717, 759-760 (1996). However, Stand Your Ground laws in six states forbid police from arresting a shooter who claims self-defense unless they find evidence to disprove the shooter’s claim.Alabama: Code of Ala. § 13A-3-23(d); Florida: Fla. § Stat. 776.032(2); Kansas: K.S.A. § 21-5231(a); Kentucky: KRS § 503.085(1); Oklahoma: 21 Okl. St. § 1289.25(G); South Carolina: S.C. Code Ann. § 16-11-450(B). This heightened standard for making an arrest — and, in three states, for even detaining a suspectFlorida: Fla. § Stat. 776.032(2); Kansas: K.S.A. § 21-5231(a); Kentucky: KRS § 503.085(1). — puts a significant roadblock in front of law enforcement because police often start accumulating evidence by interviewing the shooter, and a shooter who is presumed to have acted lawfully has little incentive to cooperate with an investigation. If the victim is dead and there are no other witnesses, it may be impossible for the police to proceed with the investigation.

Stand Your Ground laws provide law enforcement with little guidance for how to evaluate the validity of a suspect’s self-defense claim,Reagan v. Mallory, 429 Fed. Appx. 918 (11th Cir. 2011) (“Under Florida law, law enforcement officers have a duty to assess the validity of this defense, but they are provided minimal, if any, guidance on how to make this assessment.”). and instead expose officers to the prospect of a wrongful arrest lawsuit for improperly detaining a suspect who has claimed self-defense.See, e.g., Reagan v. Mallory, 429 Fed. Appx. 918 (11th Cir. 2011). Additionally, as a recent Tampa Bay Times study demonstrated, courts have difficulty determining when arrests and prosecutions are proper, leading to confusion and inconsistent decisions.Florida’s Stand Your Ground Law,” Tampa Bay Times at http://www.tampabay.com/stand-your-ground-law/. This uncertainty creates a chilling effect, making police less likely to arrest, and prosecutors less likely to prosecute, shooters who claim self-defense.

Criminal Immunity, Part 2: Immunity Hearings

Stand Your Ground laws in eight states shield a shooter from criminal prosecution even after an arrest is made.Alabama: Code of Ala. § 13A-3-23(e); Florida: Fla. § Stat. 776.032(1); Georgia: O.C.G.A. § 16-3-24.2, Kansas: K.S.A. § 21-5231(a); Kentucky: KRS § 503.085(1); North Carolina: N.C. Gen. Stat. § 14-51.3(b); Oklahoma: 21 Okl. St. § 1289.25(F); South Carolina: S.C. Code Ann. § 16-11-450(A). State courts have interpreted these criminal immunity provisions to entitle a shooter to a pretrial “immunity hearing” — a procedure during which each party presents evidence to a judge who determines if the shooter acted in self-defense. If the judge finds it more likely than not that the defendant acted in self-defense, the case is dismissed. Otherwise, the case proceeds to trial.See, e.g. Dennis v. State, 51 So. 3d 456 (Fla. 2010); Bunn v. State, 667 S.E.2d 605 (Ga. 2008); Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009); State v. Duncan, 392 S.C. 404 (S.C. 2011). Such immunity hearings alter traditional criminal procedure by requiring a judge to make factual determinations usually left to a panel of jurors.

The distinction between judge and jury can be significant. The jury — with its breadth and diversity of opinions, experiences, and backgrounds — generally determines what evidence to believe and disbelieve. Self-defense cases, in particular, often turn on only a few crucial facts.Jean K. Gilles Phillips & Elizabeth Cateforis, Self-Defense: What’s a Jury Got to Do with It?, 57 Kan. L. Rev. 1143 , 1168-1174 (2009). In most states, a jury must decide those facts. The immunity provisions found in Stand Your Ground laws effectively overturn this rule in self-defense cases by requiring factual disputes to be decided by a judge instead of by “the people” — a jury of one’s peers.In doing so, Stand Your Ground laws grant a unique status to claims of self-defense. There are many defenses – e.g., necessity, entrapment, insanity – that a defendant can raise at trial that would relieve him or her of criminal responsibility for actions that would otherwise constitute a crime. Until the advent of Stand Your Ground laws, self defense ranked among them, but these provisions single out self-defense and create a new type of procedural mechanism to determine whether self-defense applies.

The purpose of granting “criminal immunity,” according to Representative Dennis Baxley, who sponsored Florida’s Stand Your Ground law in the Florida House of Representatives, was to protect law-abiding citizens from uncertainty while they wait for the government to decide whether to prosecute them for shootings they claimed were in self-defense.See, e.g., Ann O’Neill, “NRA’s Marion Hammer stands her ground,” CNN, April 15, 2012, http://www.cnn.com/2012/04/15/us/marion-hammer-profile/index.html. In practice, however, immunity provisions do not accomplish this goal. Shooters continue to wait — sometimes years — for a decision.For example, in one Florida case, Dennis Sosa Palma, who had fatally stabbed his brother during a 2010 brawl, waited more than two years for a favorable determination on immunity. David Ovalle, “Miami-Dade judge tosses murder charge based on self-defense,” The Miami Herald, August 17, 2012 at http://www.miamiherald.com/2012/08/17/2956670/miami-dade-judge-tosses-murder.html. In fact, if the shooter is prosecuted, the case may take even longer to resolve than under the traditional regime: If the judge decides the shooter is not entitled to criminal immunity, the case then proceeds to a jury trial, effectively lengthening the process and giving the shooter two trials instead of one. The difference is often not in the time spent awaiting a decision, but in whether the case is decided by a judge or a jury.

Civil Immunity: Prohibiting Civil Lawsuits

Our civil justice system provides avenues for injured parties to seek redress for harms they have suffered. Shooting victims and their families traditionally have the ability to file a civil lawsuit for monetary damages to compensate for injuries like lost wages, medical costs, and pain and suffering. To prevail, the injured party must generally show by a “preponderance of the evidence” (i.e., that it is more likely than not) that the defendant’s actions violated the law and caused harm. This standard of proof is much easier to meet than the exacting “beyond a reasonable doubt” standard in criminal cases and provides some measure of justice where the proof of guilt was substantial, but not strong enough to satisfy the criminal standard. Of the 22 Stand Your Ground states examined in this report, 19 effectively bar civil lawsuits against shooters protected by Stand Your Ground laws.

These so-called “civil immunity” laws take different forms. Eleven states have statutes that create immunity from all civil suits arising from the “lawful” use of force.Alabama: Code of Ala. § 13A-3-23(d); Arizona: A.R.S. § 13-413; Florida: Fla. Stat. § 776.032; Kansas: K.S.A. § 21-3219; Kentucky: KRS §§ 503.085; Louisiana: La. Rev. Stat. Ann. § 9:2800.19; Mississippi: Miss. Code. Ann. § 97-3-15(5); North Carolina: N.C. Gen. Stat. §§ 14-51.2(b), 14-51.3(b); Oklahoma: 21 Okla. Stat. § 1289.25(F); South Carolina: S.C. Code Ann. § 16-11-450(A); Texas: V.T.C.A. § 83.001. Often referred to as “blanket” immunity, these provisions prevent all suits against the shooter, including suits brought by innocent bystanders who may have been injured. Eight states have more limited civil immunity provisions that shield the shooter only from suits brought by the intended victim and his or her survivors, implicitly allowing innocent bystanders to sue.Alaska: Alaska Stat. § 09.65.330; Georgia: O.C.G.A. § 51-11-9; Michigan: Mich. Comp. Laws § 600.2922b; Montana: Mont. Code. Ann. § 27-1-722; New Hampshire: N.H. Rev. Stat. Ann. § 627:1-a; Pennsylvania: 42 Pa.C.S.A. § 8340.2(a); Tennessee: Tenn. Code Ann. § 39-11-622; West Virginia: W. Va. Code § 55-7-22(d).

In addition, 12 states award attorney’s fees and litigation costs to a shooter who prevails in a civil suit, creating a strong disincentive for a shooting victim to pursue justice in the civil system.Alaska: Alaska Stat. § 09.65.330(b); Florida: Fla. Stat. § 776.032 (3); Kentucky: KRS § 503.085; Louisiana: La. R.S. § 9:2800.19; Michigan: Mich. Comp. Laws § 600.2922c; Mississippi: Miss. Code. Ann. § 97-3-15(5); Montana: Mont. Code. Ann. § 27-1-722(4); New Hampshire: N.H. Rev. Stat. Ann. § 627:1-a; Oklahoma: 21 Okla. Stat. § 1289.25(H); Pennsylvania: 42 Pa.C.S.A. § 8340.2(b); South Carolina: S.C. Code Ann. § 16-11-450(C); Tennessee: Tenn. Code Ann. § 39-11-622(b). These cost-shifting provisions only work in one direction: They award attorney’s fees if the shooter prevails, but not if the injured party prevails.

Effects of Stand Your Ground Laws

The Trayvon Martin shooting prompted an outpouring of research examining the effect of Stand Your Ground laws on public safety. Original research presented here shows that states that passed these laws experienced a sharp increase in justifiable homicides, while states without these laws saw a small decline over the same period. Other studies have shown an association between Stand Your Ground laws and increases in both overall homicides and firearm-related homicides.C. Cheng and M. Hoekstra, “Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine,” Texas A&M Department of Economics, 29 May 2012, available at http://econweb.tamu.edu/mhoekstra/c astle_doctrine.pdf; C. McClellan and E. Tekin, “Stand Your Ground laws and homicides,” National Bureau of Economic Research, June 2012, available at http://www.nber.org/papers/w18187.pdf.

Increase in Justifiable Homicides

A Mayors Against Illegal Guns analysis of FBI data indicates that Stand Your Ground states experienced a striking increase in the number of justifiable homicides committed by private citizens in the years following the laws’ enactment. Other research indicates that this increase is not the result solely of more homicides being classified as “justifiable,” but also of an overall increase in homicides.

In states that passed these laws in 2005-07, the justifiable homicide rate was on average 53% higher in the years after passage of the law than in the years preceding it. (See Figure 1.) By contrast, in states that did not enact Stand Your Ground laws during this period, the justifiable homicide rate fell by 5% on average over the same period.FBI Uniform Crime Reports, Supplementary Homicide File. National Archive of Criminal Justice Data, available at: http://bit.ly/1bnoHhw.

The increase in the number of justifiable homicides was particularly large in Florida, Texas, Georgia, Arizona, and Kentucky: The average annual number of justifiable homicides jumped by 200% in Florida, 54% in Texas, 83% in Georgia, 24% in Arizona, and 725% in Kentucky.As explained in the “methodology” section, the four states that enacted Stand Your Ground laws after 2011 (NC, NH, NV, and PA) are considered “no change” states for purposes of this study because they did not have a Stand Your Ground law in effect during the study period. Three states were excluded entirely because they either enacted Stand Your Ground laws too late in the study period to provide sufficient data (MT and WV) or did not report justifiable homicide data to the FBI (NY). (See Figure 2.)

Researchers John Roman and Mitchell Downey at the Urban Institute examined overall homicide data and found that cases resembling the Martin shooting — handgun homicides with a single shooter and victim who are strangers to one another — are twice as likely to be deemed justifiable in Stand Your Ground states as they are elsewhere. According to their study, 7.2% of such homicides in non-Stand Your Ground states were deemed justifiable, while 13.6% of the same type of homicides in Stand Your Ground states were deemed justifiable — nearly twice the share.J. Roman and M. Downey, “Stand Your Ground laws and Miscarriages of Justice,” Metrotrends Blog, March 29, 2012, available at http://blog.metrotrends.org/2012/03/stand-ground-laws-miscarriages-justice/.

Disparate Racial Impact

A Mayors Against Illegal Guns analysis of demographic data shows that the increase in justifiable homicides has disproportionately affected the African American population.FBI Uniform Crime Reports, Supplementary Homicide File. National Archive of Criminal Justice Data, available at: http://bit.ly/1bnoHhw. The number of both black and white justifiable homicide victims has increased in Stand Your Ground states, but because the rate of victimization among black Americans was already much higher before enactment of Stand Your Ground laws, the subsequent increase has also been more dramatic.Id. (See Figure 3.) Controlling for population, the number of homicides of black people that were deemed justifiable in Stand Your Ground states more than doubled between 2005 and 2011 — rising from 0.5 to 1.2 per 100,000 people — while it remained unchanged in the rest of the country.Id.

The Urban Institute also examined racial disparities in justified gun homicide rulings that involve a single shooter and victim who are strangers. The researchers found that when white shooters kill black victims, 34% of the resulting homicides are deemed justifiable, while only 3.3% of deaths are ruled justifiable when the shooter is black and the victim is white.J. Roman, “Do Stand Your Ground Laws Worsen Racial Disparities?,” Urban Institute MetroTrends Blog, Aug. 8, 2012 at http://blog.metrotrends.org/2012/08/stand-ground-laws-worsen-racial-disparities/ This discrepancy does not appear to be affected by the relative ages of or relationship between the shooters and victims. When an older white man shoots a younger black man with whom he had no prior relationship, the shooting is determined justifiable 49% of the time. Yet when the situation is reversed, and an older black man shoots a younger white man with whom he had no previous relationship, the homicide is only judged justifiable 8% of the time.FBI Uniform Crime Reports, Supplementary Homicide File. National Archive of Criminal Justice Data, available at: http://bit.ly/1bnoHhw.

Methodology

Although there is no national system for collecting data about cases in which Stand Your Ground laws are invoked as a defense, the Federal Bureau of Investigation (FBI) collects data on the number of “justifiable homicides” committed each year, which it defines as “the killing of a felon during the commission of a felony by a private citizen.” (The FBI has a different category for justifiable homicides committed by law enforcement officers.)

Mayors Against Illegal Guns conducted a difference-in-difference analysis to evaluate the effect of enacting a Stand Your Ground state law on the number of justifiable homicides committed there. This kind of analysis compares the difference in justifiable homicide rates before and after enactment of Stand Your Ground law in those states that passed them, and then compares those figures to the difference in justifiable homicides over the same period in states that did not pass them. The most recent data available (through 2011) on justifiable homicides was obtained from the FBI’s Uniform Crime Reports and the Florida Department of Law Enforcement.

In states that enacted a Stand Your Ground law, the rate of justifiable homicides in the years immediately preceding passage were compared to the rate in the years immediately after. An increase in justifiable homicides between pre and post-enactment periods would indicate an association between Stand Your Ground laws and the rate of justifiable homicide.

In states that did not enact a Stand Your Ground law, rates of justifiable homicide during equivalent periods were compared. A smaller increase between these periods than in states that enacted Stand Your Ground laws would indicate that the increase in Stand Your Ground states was not the result of factors common to both groups of states, but rather to the Stand Your Ground laws themselves.

Of the 22 states that now have Stand Your Ground laws, most enacted them in 2006, allowing five subsequent years for the accrual of data on justifiable homicides. Accordingly, this analysis compared the number of justifiable homicides committed in the five-year periods before and after enactment of the laws (2001-2005 and 2007-2011). The same periods were compared in states that did not enact Stand Your Ground laws during the study period. In Florida, which enacted its law in 2005, five-year periods before and after enactment were also compared (2000-2004 and 2006-2010). For the four states that enacted Stand Your Ground laws in 2007, the 2002-2006 and 2008-2011 periods were compared.

The four states that enacted Stand Your Ground laws in 2011 did not have a law in effect throughout the period of comparison and thus were categorized as not having Stand Your Ground laws for the purposes of this analysis. These states are NC, NH, NV, and PA. The two states that enacted laws in 2008-2009 (MT and WV), for which there is insufficient data to be considered in either the Stand Your Ground or non-Stand Your Ground category, are excluded from analysis. The two states that did not report justifiable homicide data to the FBI during part of the study period (DC and NY) are also excluded.

In the final analysis, the 16 states that enacted Stand Your Ground laws and had sufficient data for comparison were compared to the 30 states that did not have Stand Your Ground laws during the same period.

Increase in Overall Homicides

Other scholarly research provides evidence that Stand Your Ground states experienced increases in overall homicides, supporting a conclusion that Stand Your Ground laws embolden people to use deadly force in situations where they otherwise would have tried to resolve the conflict in other ways (for example, by removing themselves from the situation or using non-deadly force).

Texas A&M University researchers published a study in May 2012 that examined FBI homicide data and controlled for factors that might affect state homicide rates, such as the poverty rate, the number of police, and the region of the country. Holding other factors constant, it found passage of a Stand Your Ground law was associated with either a 7% or 9% increase in total homicides, depending on the statistical method used. It did not find any evidence that rates of burglary, robbery, and aggravated assault were affected by these laws, though supporters of these laws often suggest they deter serious crimes.C. Cheng and M. Hoekstra, “Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine,” Texas A&M Department of Economics, 29 May 2012, available at http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf. This study defined Stand Your Ground states slightly differently than this report; however, the slight difference in classification does not create are a noticeable difference in result.

In June 2012, the National Bureau of Economic Research released a study, using data from the Centers for Disease Control (CDC) that specifically considered the effect of these laws on firearm-related homicides, rather than all homicides. Controlling for other factors, the study found that passage of a Stand Your Ground law was associated with a 9.2% or 15.6% increase in firearm-related homicides involving white male victims (depending on methodology), while changes in the firearm-related homicide rates for black victims and white female victims were not statistically significant. The authors suggest that the measurable effect on white male victims may be due to the larger share of white males who own firearms.C. McClellan and E. Tekin, “Stand Your Ground laws and homicides,” National Bureau of Economic Research, June 2012, available at http://www.nber.org/papers/w18187.pdf. Note that this study looked at all homicides, as opposed to the Roman and Downey study, supra note 54, which studied only those homicides that were deemed justifiable.

Conclusion

There is significant evidence that Stand Your Ground laws undermine public safety and increase overall homicide rates. In light of the laws’ impact on public safety, states have begun to consider legislative reforms that would restore some of the traditional principles of self-defense law and clarify provisions of Stand Your Ground laws that have tied the hands of law enforcement.

Stand Your Ground states have introduced the following types of reform legislation:

  • Returning to the rule that a person must remove himself or herself from the situation, if he or she can do so safely, before using deadly force—a rule that encourages de-escalation of confrontations when possible;
  • Providing that deadly force can only be used when reasonably necessary to prevent or end imminent danger of death or serious bodily injury to a person or to prevent or end arson or certain burglaries—a standard that allows the use of deadly force only when a reasonable person would deem it necessary;
  • Removing presumptions of reasonableness or lawfulness;
  • Repealing criminal immunity provisions that prevent the arrest and prosecution of killers and usurp the role of juries; and
  • Repealing civil immunity provisions, particularly those that prevent innocent bystanders and their families from seeking compensation for their injuries.

In addition, certain changes and clarifications to Stand Your Ground laws could eliminate some of the laws’ unintended effects:

  • Clarifying that the legal presumptions in the laws are rebuttable by a preponderance of the evidence;
  • Clarifying that, when the other person is in retreat, the use of deadly force in self-defense is prohibited and the Stand Your Ground presumptions do not apply;
  • Clarifying that, even without a duty to retreat, judges and juries can consider the ability to retreat in determining whether the use of deadly force was necessary;
  • Clarifying that the unlawful possession of a firearm constitutes unlawful activity that prevents a person from asserting a Stand Your Ground defense;
  • Prohibiting people who initially attack another person with deadly force from later claiming self-defense;
  • Clarifying that police must conduct a full investigation even if someone claims immunity; and
  • Using grand juries instead of immunity hearings, thereby allowing faster pretrial determinations of self-defense and leaving factual determinations to a panel of grand jurors instead of a judge.
Appendix

Click here to explore a state-by-state appendix of Stand Your Ground laws.