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Stand Your Ground Laws: Strict in Theory, Fatal in Fact


Justin Curcio, visiting student from St. John’s University, New York discusses the real world application of the controversial Stand Your Ground Laws



 In 2005, Florida codified its common law self-defense doctrine, commonly referred to as The Stand Your Ground defense.72 The concept is simple. An individual has no duty to flee from an unlawful assailant and he or she can protect themselves by using force equal to that of the assailant. This law is grounded in the belief that an individual should not be required to flee from an unlawful assailant, and as an American, he or she has a right to stand up against such oppressive opposition.

 While this law is theoretically sound, its real world application is impracticable. The law assumes that an individual has a reasonable fear of imminent harm and does not require fleeing when possible. This creates a justification for killing another individual when it is not absolutely necessary. Such a broad defense, moreover, creates a racial disparity in the law’s application—white males are significantly more likely to be successful when justifying a killing of a young black male than a black male will be justified in the killing of a white male.



 Florida was the first state to codify the common law allowance of using deadly force in self-defense without the requirement of having to flee when safely possible.73 Sixteen other states followed suit and passed similar Stand Your Ground laws.74 Stand Your Ground laws have a universal theme: a person who is not engaged in an unlawful activity has no duty to retreat from attack and ‘has a right to stand his or her ground and meet force with force.’75

 Codifying the common law doctrine of Stand Your Ground eliminates the element of necessity in the use of self-defense because an individual has no duty to retreat before self-defense is justified. Accordingly, judicial discretion is eliminated in these delicate matters and courts will no longer be able to rule on the issue of whether or not self-defense was justified if it could have been avoided. The only elements left to justify a killing in self-defense is that an individual claiming self-defense was being attacked by an unlawful assailant and had a reasonable fear for his or her personal well being.76


The Constitution does not prohibit legislatures from enacting stupid laws.

- Justice Thurgood Marshall


The Tenth Amendment of the United States Constitution gives states the power to enact laws that are not prohibited by the Constitution.77 Stand Your Ground laws may be unpopular and abhorrent to many, but since the Constitution is silent to self-defense, a state has the right to define what is a legal justification for the use of deadly force. Seventeen states decided that it was in their best interest to enact Stand Your Ground laws and the judiciary must respect this.78

Legislatures are elected by the people to represent and speak on their behalf. A majority of people in Stand Your Ground states wish to have such laws in place. If citizens want to change it, they can inform their local representative to do so or elect someone who will. However, since Florida’s enactment of the Stand Your Ground law, it seems that its citizens are embracing it with open arms.79 A majority of the country may disagree with Stand Your Ground laws but that does not make it any less lawful for the minority of states to enact it.80

Before Florida’s adoption of Stand Your Ground laws in 2005, all fifty states instituted and adopted the Castle Doctrine.81 This shows that America had long recognized that an individual does not always have a duty to flee when possible before the use of deadly force is justified.82 But the Castle Doctrine was once viewed as the exception to the Retreat to the Wall rule. Now the Castle Doctrine evolved to Stand Your Ground laws, eliminating the Retreat to the Wall doctrine. Most individuals may be apprehensive about this growing expansion of the Castle Doctrine, but such quick and wide acceptance among the states suggest that Stand Your Ground may be the majority law very soon.



Crime statistics show that murder rates have increased in states that have enacted Stand Your Ground laws.83 Studies have also shown that the killing of black individuals by white individuals is more likely to be considered ‘justified’ than the killing of white individuals by black individuals.84 This is not a minor disparity. A white person is 354% more likely to be ‘justified’ in his killing of a black person than if he killed another white person.85 The research regarding Stand Your Ground laws is still relatively new, so the statistics do not take into consideration whether or not the killing took place during a home invasion, a confrontation in the street or if the victim was known by the shooter.86 However, comparing the facts of self-defense cases where the defendant is white to those of a black defendant can provide an instructive narrative that explains these statistics.



 If the statistics are not convincing enough, the real world application of the law shows an inherent bias in Stand Your Ground laws.87 Case after case demonstrate that courts are more inclined to prevent a black defendant from using Stand Your Ground protection than a white defendant.88 A Stand Your Ground defense is less likely to make it to the jury room when a black defendant seeks its protection, rather judges decide as a matter of law that it is not applicable in many of these cases.89 White defendants, comparatively, have a better chance of getting a Stand Your Ground defense accepted by the courts and a not-guilty verdict from the jury than a black individual.90 When looking at the facts of these cases, an inherent bias in the law is strongly apparent.



While Stand Your Ground laws may seem theoretically sound, they are inherently flawed through application. Many states followed Florida’s lead in codifying their common law self-defense doctrines, creating similar versions of Stand Your Ground laws.91 While these are facially neutral laws that are designed to deter violence, they have no such effect. The result is an increase in homicides and a significant disparity in its application among races.92

Stand Your Ground laws are statistically disproportionate in their application among the races.93 White individuals are more than 300% more likely to be successful justifying the use of force in a Stand Your Ground state against a black individual then a black individual is when claiming self-defense against a white individual.94 This is a grossly disproportionate distinction in the racial application of the law. One race having a statistical advantage in the justification for the use of deadly force is further proof of this unworkable law.



Stand Your Ground laws may make logical sense, but are universally unstable and are inconsistently applied. The idea is simple; one should not have to flee when being attacked by an unlawful assailant. However, the law also allows individuals to seek confrontation, assumes that the assailant acted with reasonable fear and allows individuals the choice to use deadly force. Furthermore, all of these flaws in the law favour white individuals who seek protection under Stand Your Ground laws when they use force against a black individual. This new generation of self-defense laws will inevitably be significantly more problematic than originally envisioned. Stand Your Ground laws are theoretically sound laws but can never be realistically applied when there are so many subjective elements that can be manipulated to justify the killing of another.

Relying on the common law doctrine of self-defense may still be the best law we have regarding justification in the use of deadly force. Under common law, a judge still has discretion as to whether the use of deadly force was reasonable and necessary, taking into consideration the possibility of safely fleeing. Under the common law doctrine of self-defense, individuals would not be able to seek self-defense protection when they leave a place of safety and seek confrontation. This will discourage individuals from manipulating the impractical language of Stand Your Ground laws as a defense to justify their acts of vigilantism.

Alternatively, if Stand Your Ground laws are to have any workability, implicit biases need to be accounted for. Self-defense case studies and statistics show that a white male is more likely to obtain self-defense protection when he kills a young black male than any other demographic who seeks such protection. By making triers of facts aware of this implicit bias will allow them to acknowledge this subconscious character trait they have and correct it, allowing for a fairer trial. Whether it be returning to the common law doctrine of self-defense or bringing implicit biases to the trier of facts attention, one thing is clear, the current state of Stand Your Ground laws are impractical and can only be workable with significant change.

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