Crime, Deaths, Guns / Firearms, Minority Issues, Racism

Are 'Stand Your Ground' and 'Defense of Home' Laws Racist?

Now that everybody is being reminded of stand your ground statutes, are we still sure they're a good idea?

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Florida’s “stand your ground” law has received a lot of attention this week as people struggle to understand how a teenager named Trayvon Martin, armed with Skittles, was gunned down in the street. The FBI, the Justice Department, and a Florida grand jury are now all investigating the incident where Martin’s killer, George Zimmerman, claims he was acting in self-defense.

I don’t want to get into the racial aspect of the instant situation — mainly because it’s too obvious. Don’t get me started on what the police would have done if a black man shot a white teenager to death and claimed he was standing his ground. It’s not even worth debating.

But even if race played a role here, it doesn’t mean a prosecutable crime took place. As many now know, that’s because Florida’s “stand your ground” law does not require people to retreat, even if they can do so safely.

Sure, “real men” don’t run. You can’t find a culture on Earth where running away is “honorable.” But in light of what’s happened with these laws on the books, do they really make sense? Is the enforcement of these laws racially prejudiced? Do “stand your ground” laws really just make it open season on black youths who might “scare” prejudiced people who incorrectly think they’re in danger of their lives?

I think so, but at least that’s a position where reasonable people will disagree….

Even most 1Ls have learned about defense of home and “stand your ground” laws. While “stand your ground” laws are relatively new, the basic concept is the same as the defense of home statutes — they overturn the common law “duty to retreat.” It’s the “Castle Doctrine”: you come into a man’s castle, and suddenly we’re in a state of nature and you can be shot to death.

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For me, law school was the second time I learned about these kinds of statutes. The first time I heard about these laws was from my parents. My father picked me up from a friend’s house (a white friend’s house in a white neighborhood), and I told him about my classic childhood adventure trying to retrieve a ball from another person’s yard. My dad immediately scolded me, telling me to let my white friends get the ball and “stay your black ass” out of harm’s way. Then he told me about how white people were allowed to shoot me if I climbed over their fence, even if I was just trying to retrieve a ball.

Now, my dad was wrong: the duty to retreat was alive and well in New York when I was 12. And on Long Island, white people were as likely to think that I was coming to teach them about Jehovah as opposed to anything else. But the point was clear, and it was an important lesson for a young black kid: when you are black, you’d best assume that white people can shoot first, ask questions later, and get away with it.

And that’s really what the Castle Doctrine and “stand your ground” statutes legalize: shooting first and asking questions later. The duty to retreat (where it still exists) is not onerous. It doesn’t require you to hide under the bed or jump out of two story window to avoid a cat burglar. It’s really just common sense — if you can safely and reasonably avoid getting into a shoot-out, you should do so. If you are on the street and you can drive away before opening fire, you should do so.

I know it’s all cool in the movies when Clint Eastwood confronts the street toughs instead of running away like a bitch, but in real life, isn’t it better for some people to retreat instead of lots of people dying? The Tampa Bay Times has some stats on what’s happened in Florida since its “stand your ground” law went into effect:

Since the law went into effect, reports of justifiable homicides have tripled, according to the Florida Department of Law Enforcement. It has been used to absolve violence resulting from road rage, barroom arguments and even a gang gunfight. In 2008, two gangs in Tallahassee got into a shootout where a 15-year-old boy was killed. The charges were dismissed by a judge citing the “stand your ground” law.

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Have we learned nothing from Back to the Future? You don’t have to get into a fight every time Biff calls you a chicken.

The laws are not textually racist, but you had better make sure nobody feels threatened by you if you are a minority, even other minorities. I think this is a pretty clear cut case of disparate impact. These laws turn on the question of whether the shooter reasonably believed he was in danger of his life. Sadly, that determination on the part of the shooter is not going to play out in race neutral fashion.

I’d argue that “he was black” does not amount to a reasonable threat that must be confronted with deadly force; but I’d also like to be alive to argue things instead of having my family make a case after I’m dead. “Stand your ground” laws don’t make me feel safe, because who knows when the wrong person will be scared of me.

But, like I said, reasonable people will disagree. People who buy, carry, and conceal handguns don’t go through all that trouble so they can retreat from conflict. And trying to explain to legislators or appellate judges that a law disproportionately disadvantages young black kids who like not getting shot at isn’t as easy as it sounds.

Grand jury, Department of Justice to investigate Trayvon Martin shooting [Chicago Tribune]
The trouble with Florida’s ‘stand your ground’ law [Tampa Bay Times]

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