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P. Luevonda Ross

P. Luevonda Ross,  The Transmogrification of Self-defense by National Rifle Association-inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground,  35 Southern University Law Review 1-46 (Fall, 2007) (259 footnotes ommitted)


“In the system of [self-defense]... no balm or protection is provided for wounded pride or honor in declining combat, or sense of shame in being denounced as cowardly. Such thoughts are trash, as compared with the inestimable right to live.”

I. Introduction

The doctrine of self-defense provides that one may protect himself against an imminent attack. However, this right is not absolute. The limitations require that the force applied in defense be necessary and proportional. One may meet force with force, but may not exceed the amount of force required to repel the threat, nor can he be the original aggressor who brought on the situation. We value life. We want everyone to avoid taking *2 life when it is possible to do so. Therefore, a central requirement of self-defense is that the individual retreat before applying deadly force. However, we made an exception to this requirement where the home, which is considered the castle, was concerned. When a person is in his home, he is not required to retreat further. This is logical because when in the home, a person has already retreated as far as he can from the perils of society. By limiting the exception to the necessity to retreat to the castle, the self-defense doctrine was easy to enforce without difficulty in distinction. The retreat line is moving and expanding beyond the castle and into the streets. The retreat element is losing its significance and is being abrogated by a “stand your ground anywhere you have a right to be” doctrine.

Since 2005, thirty states have considered altering their laws on self-defense to replace the retreat element with a right to “stand your ground.” Thirteen of these states have radically liberalized their self-defense statutes, and seven other states have legislation pending. Four states have adopted some but not all of the proposed changes. Four states have considered the changes, but tabled the legislation. Two states considered such a change, *3 but rejected the radical proposal. This article traces this movement to its origin, the National Rifle Association (the NRA), and discusses the abuses, particularly upon racial minorities, that will be promoted by statutes that deconstruct the historic limits upon the privilege to use deadly force. While it is certain that these statutes will negatively affect a broader segment of society, consideration of the potential impact on other groups is beyond the scope of this article.

Section II will present a history of the privilege of self-defense from its common law origins to its most recent American transmogrification. Section III will focus upon the NRA inspired self-defense statutes. Section IV addresses the projected negative impact that the enactment of liberalized self-defense statutes will have upon racial minorities. The article concludes with the notion that refusing to move the retreat line is the better course.

II. History of Self-Defense and the Retreat Doctrine

According to Sir William Blackstone, there were three kinds of homicide at the common law: justifiable, excusable, and felonious homicide. To be justified, the killing had to occur because of some unavoidable necessity, for the advancement of public justice, or for the prevention of any forcible or atrocious crime. *4 While all killing was viewed as a public wrong, justifiable homicide was regarded more favorably than excusable homicide since some slight degree of fault is present in excusable homicide cases. However, even justifiable homicide was discouraged. Blackstone pointed out, and correctly so, that permitting “subjects” to kill so freely and without restraint is characteristic of an uncivilized society, not a civilized one. Thomas Paine advised, “[i]t is always possible to go from the natural to the civilized *5 state, but it is never possible to go from the civilized to the natural state.” Blackstone further indicated that killing to prevent crime should not be permitted except where the punishment for the presumed crime is also death. Here, it appears that Blackstone was concerned about proportionality: the punishment should fit the crime. If one may kill an assailant, it is only because the assailant's crime would be punishable by death. Anything less is untenable in a civilized society that professes to regard life so highly.

In the English law, killing in self-defense was not justifiable; rather, it was excusable in certain cases. To be excused, the homicide had to fall into one of two categories: per infortunium, by misadventure, or se defendendo, self-defense. To discourage killing with impunity in the name of self-defense, Blackstone counseled that the right to defend oneself did not guarantee a right to attack. Because the penalty for every felony was death, a defendant who killed another in self-defense had to be *6 pardoned by the king or suffer the consequences. The pardon was granted only in cases where the defendant had retreated until his back was “to the wall” and in cases of reasonable necessity.

In 1806, an American court considered the first self-defense case, Commonwealth v. Selfridge. Selfridge's trial was the first in a line of cases in this country in which the law of self-defense was influenced by notions of pride and honor. Selfridge was charged with manslaughter for killing Charles Austin, an eighteen-year-old Harvard student. Selfridge, himself an attorney, had quarreled with Benjamin Austin, the decedent's father. The elder Austin had posted a derogatory statement about Selfridge in the newspaper. Selfridge retaliated by posting the comment that Benjamin Austin was “a coward, liar, and a scoundrel.” Subsequently, Selfridge was told that Benjamin Austin meant to harm him. The next day, Selfridge saw the younger Austin carrying a large cane, assumed that the young man intended to do him harm, and shot him in the street “when the deceased was at arm's length.” Other witnesses, however, testified that Selfridge shot Austin as soon as he saw him. According to Wharton, if the jury believed the state's witnesses, then the case would have to be one of murder. However, even if the jury believed the defendant's version, the case would be manslaughter. Wharton held this position because of the defendant's failure to retreat. The defense at trial was that “[t]he honor of a gentleman should be as sacred as the virtue of a woman; but the female is authorized to take his life who would violate her honor. Why is not a man bound to maintain his honor at the same hazard?” Wharton commented that “the whole case-bill, bail (which had been set at two thousand dollars), and verdict-exhibited a singularly loose estimate of the value of human life.”

Richard Singer in his article The Resurgence of Mens Rea II-Honest But Unreasonable Mistake of Fact in Self Defense argues that the Selfridge court improperly instructed the jury because of its misplaced reliance on East's interpretation of the law of self-defense. Singer explained that the commonwealth had not tried the case as one of murder but of manslaughter, and that the defendant did not raise self-defense, but prevention of a crime as his defense. A homicide committed in prevention of crime would justify Selfridge's use of deadly force against Charles Austin. If Selfridge was relying on the prevention of a crime defense, then no retreat was required. Singer therefore maintained that because East erred in his interpretation of self-defense doctrine, by requiring a reasonableness standard, courts that relied upon Selfridge thereafter also misapplied the law. Thus began the transmogrification of self-defense from a narrowly applied doctrine into one of expansive scope.

In 1830, Tennessee decided the next significant case involving self-defense, Grainger v. State. The case permits “cowardly and timid” people to kill, even though no danger of serious bodily harm exists. The concept of reasonableness becomes embedded in the discussion of self-defense. However, the facts indicate that the defendant retreated until his back was to the wall before he killed his assailant. This is the type of se defendendo case contemplated by Blackstone. Yet the court never discussed retreat. Perhaps the court did not address retreat because it had clearly occurred in this case. Soon other states were presented with opportunities to shape the law of self-defense as the nation expanded westward. In 1847, Alabama took an opposite position from the other states and found that retreat was required. In 1876, Ohio visited the issue in Erwin v. State, a case of first impression. The court conceded that the issue of retreat was in a state of confusion. In its opinion the court discussed each of the learned commentators of the common law: Coke, Hale, Foster, and East, and also considered the Selfridge case. The Erwin court held that the defendant had no duty to retreat because a “true man, who is without fault, is not obliged to fly from an assailant.” A close reading of Justice McIlvaine's analysis reveals the mistake in interpretation of the law of self-defense. McIlvaine acknowledges that several commentators on the law had conflicting views of the doctrines related to homicide. He does note that there are two types of self-defense. If one killed an assailant while trying to repel a felonious assault, then the killing is justified self-defense. If the killing occurred by any other means it is excusable. The outcome would be the same for either justifiable or excusable self-defense: an acquittal. However, he believed that the distinction between the two should be maintained so that juries could understand what type of evidence was required to prove each one. No retreat was necessary in the justifiable self-defense case, but retreat was required in the excusable self-defense case. If the defendant failed to retreat when required to do so, then he could not rely on self-defense. At this juncture, retreating before applying deadly force was still a requirement in se defendendo cases.

In 1877, the Supreme Court of Indiana addressed the issue in Runyan v. State. The Runyan court determined that the issue of retreat was insignificant in this case because the defendant“was already standing practically against a wall...” when he was assailed. The issue before the court was whether defendant “had reason to believe” that his use of deadly force was necessary to save his life or to protect him from great bodily harm, thus invoking Edward East's reasonableness philosophy. Retreat is one issue, but the necessity of applying deadly force is another. The two must be decided separately. It seems that this further inquiry is what Blackstone meant when he rejected killing with impunity in the name of self-defense.

Even so, the Runyan court reached a different result when it modified the retreat element of self-defense. In so doing, it expanded a doctrine which Blackstone intended to limit. The court examined the other states' resolution of the retreat doctrine and found that the American version diverged from the English common law rule. This influenced the Indiana Supreme Court as it considered the issue. The court announced that the retreat doctrine had been “greatly modified” in this country. Taking its cue from the Erwin court's aversion to flight of a “true man,” the Indiana court stated in dicta: “[T] he tendency in the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life, and that tendency is well illustrated by the recent decisions of our courts, bearing on the general right of self defence.” Because the defendant was nowhere near his home, but rather was in the street at the time, the court sanctioned the “stand your ground anywhere you have a right to be” doctrine. The court expanded the doctrine of self-defense to permit one to stand his ground without an attempt to retreat so long as he is in a place where he has a right to be. This change in the self-defense doctrine was attributed to the rugged nature of frontier life and the need of settlers to protect themselves. The idea of retreating in the face of an assault was odiousto the American ego. It is this concept that has survived and is being advanced in the most recent considerations of self-defense law.

In the 1890s, the United States Supreme Court entered the discussion and two distinct schools of thought developed. One school required retreat in the face of a deadly assault, while the other stated that there was no duty to retreat. Two cases, Beard v. United States and Allen v. United States, lie at the base of the two schools of thought. Beard was decided on the ground that the defendant was on his own premises at the time of the attack and should not be required to retreat from a place where he had a right to be— his home. The court stated that it could not agree that the accused was under any greater obligation when on his own premises, near his dwelling house, to retreat or run away from his assailant, than he would have been if attacked within his dwelling house. The accused being where he had a right to be, on his own premises, constituting a part of his residence and home, at the time the deceased approached him in a threatening manner he was not obliged to retreat. This argument is an offshoot of the “Castle Doctrine” which states a “[m]an's house [is] his castle.” In Beard, the Court expanded the castle doctrine, which permitted a person to kill inside the home without retreating, to include the outside area around or near the home. Allen, decided just two years later by the same court, stated that a defendant had to retreat before applying deadly force. On the surface, the cases appear to contradict each other, so much so, that one commentator claimed that Allen had “in fact overrul[ed]” Beard. However, the cases can be reconciled if one considers the situs of the attack and the killing. In Allen, the defendant was not on his own property at the time of the attack, but was in a public place. There, the court expressly states that there is no disharmony between the rulings in the two cases and further states that the determination of whether one had to retreat turned on the location of the assault. If it occurred at the defendant's home, he was where he had a right to be, and therefore, could stand his ground. On the other hand, if the assault occurred in a public place, then the defendant had a duty to retreat. These cases left many jurisdictions divided on the issue of whether retreat was required. After these cases were decided in the late nineteenth century, the next significant Supreme Court ruling on the issue of retreat was in Brown v. United States. One commentator wrote that “[t]he opinion cannot fail to have a profound influence on the law of self-defense, the duty of retreat and the right to stand one's ground.” Justice Oliver Wendell Holmes, Jr. wrote the opinion of the court. The issue, as he framed it, was “whether the formula laid down by the Court and often repeated by the ancient law is adequate to the protection of the defendant's rights.” Holmes reasoned that the failure to retreat is not proof of guilt, but rather is a circumstance to be considered with all others in determining whether the defendant went farther than what he was justified in doing. He stated, “The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature.” This statement is a reflection of a premise espoused in his work, The Common Law. He settled the issue, finding that there was no duty to retreat. His statement, “Detached reflection cannot be demanded in the presence of an uplifted knife” captures both the issue and the answer.

However, factually speaking, the defendant in Brown was in the same position as Allen, not on his own property. In addition, if the Supreme Court were to be consistent in its ruling, it had to make the duty not to retreat hinge on standing in one's dwelling or on one's own property. Holmes admits that the distinction was relevant to the Beard court. But he adroitly avoids the difficulty by simply stating that

those facts would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in discharge of his duty.

If one was in public, then a duty to retreat existed. State courts failed to view the doctrine this way because the Beard court failed to be clear that the distinction rested on the fact that Beard was “where he had a right to be,” and that this language meant that Beard was at home. By extending the castle doctrine to the curtilage, he would have no duty to retreat. Although the court seemed to clarify the issue in Allen when it pointed out the distinction between the rulings, other courts disregarded this rationale. Now we have a general statement that we may stand our ground “anywhere” we have a right to be and, thus, another expansion of the castle doctrine was established.III. The National Rifle Association and the Doctrine of Self-Defense

“I am 4-foot-11. I‘m 67 years old. If you came at me, and I felt like my life was in danger or that I was going to be injured, I wouldn't hesitate to shoot you.”

Since the spring of 2005, several states have amended or have considered amending their laws on self-defense. What was the impetus behind the flurry of national legislative activity? It was the NRA, with the express goal of balancing the scales betweenthe criminals and the victims. The question arises what happened or is happening in these states to necessitate the abrupt change in the retreat doctrine? Was there a sudden spike in violent crimes involving innocent citizens? The answer is no. In fact, statistics point to the exact opposite. According to the Department of Justice, the violent crime rates have declined since 1994, and reached its lowest level ever in 2005. Furthermore, in Alabama, murders were well below the highest the state had recorded in 1994. Yet, at a time when the violent crime rates were down, the NRA began sweeping across the nation, promoting “stand your ground” laws. In this section, I will examine some of the laws that have passed with the NRA backing, and review pending legislation.

For purposes of this discussion, the states that have considered the issue have been separated into three groups: a) states that radically changed their self-defense laws; b) states that moderately amended their laws; and c) states that rejected proposed changes to their self-defense laws. I shall address each group in turn.

A. States which radically changed self-defense law

“We have got to put the career criminal on notice, we are not going to take it anymore.”

Thirteen states radically changed their self-defense statutes. These states' legislatures radically altered their laws in seven ways: 1) adopting no duty to retreat before applying deadly force; 2) creating a presumption that an assailant intends to commit an unlawful act by force or by violence; 3) creating a presumption of necessity regarding the use of deadly force to repel the threat; 4) creating a presumption of reasonableness regarding the level of force used; 5) granting immunity from both civil actions and criminal prosecution; 6) imposing a prohibition against arrest; and 7) directing courts to award court costs, attorney fees, loss of income, and other expenses to the defendant. These statutes constitute the most radical departure from the common law. The statutes enacted by Florida and Alabama are representative of the movement to liberalize self-defense.

1. Florida

This radical movement began in April 2005, when the Florida legislature passed SB 436 into law. The original bill was amended twice before passage. In its original form, it sought to grant immunity from criminal prosecution and civil action. The bill provided even greater protection to a defendant who was “wrongly prosecuted” for a justified use of deadly force. It would have the intended effect of deterring prosecution for the “justified”killing or injury. Both the police force and state prosecuting agency would be liable for costs incurred in defense of a criminal prosecution. In the civil arena, the plaintiff and his counsel would be liable for damages incurred in defense of a civil action. It provided:

[t]he court shall award attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of the criminal prosecution if the court finds that the defendant is immune from prosecution as provided in subsection (1). As used in this subsection, the term “criminal prosecution” includes wrongfully arresting, detaining in custody, and charging or prosecuting the defendant. The law enforcement agency or state attorney that brought the criminal prosecution is liable to the defendant for the payment of fees and costs. The court shall award attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1). The plaintiff and the plaintiff's attorney are jointly and severally liable to the defendant for the payment of fees and costs.

Such language would clash with the immunity granted law enforcement agencies for acts committed within the scope of their employment and with good faith. Furthermore, it would be difficultto get support from law enforcement for the bill while it contained such a provision. This bill was amended to remove these sanctions. However, it retained the language for laypersons in civil suits. 2. Alabama

When most southern states rejected the retreat doctrine in favor of the “stand your ground” doctrine, Alabama continued to follow the English common law doctrine of retreat. It codified the rule in its criminal code and followed that doctrine until 2006, when the legislature passed Act 303, which was later codifiedin Alabama's Criminal Code as Section 13A-3-23(b). For more than 159 years, the former state of the law requiring retreat was sufficient to address issues of deadly force. When legislatures enact laws that abrogate long-standing or well-settled principles, they do so in response to some societal dilemma or epidemic that indicates a change is warranted. However, even when a problem arises, the response must be a well-reasoned one, and not a mere knee jerk reaction.

In September 2005, the mayor of Montgomery, Alabama, warned that he could not protect the citizens. According to the mayor of the capital city, it is a solid concept for people to protect themselves since the criminal justice system is not working. While it is one thing to admit that the “wheels of justice” grind slowly, it is quite another proposition to admit that they do not turn at all. If, by his statement, the mayor was suggesting that the local law enforcement could not protect the citizens, then was he calling for citizens to become enforcers? Was the mayor advocating that citizens begin executing justice in the streets rather than seeking redress in the courts? If so, there is danger in his pronouncement to the citizenry. As Paine stated, “A government which cannot preserve the peace, is no government at all, and in that case, we pay our money for nothing.”

In April 2006, the Alabama Legislature passed Act 303 of 2006, which amended the former self-defense statute. The former statute required an actor to retreat before applying deadly force in self-defense and permitted deadly force only in response to a threat of death or serious bodily harm. The new law tracks Florida's “stand your ground” statute and abolishes the duty to retreat. Act 303 permits the actor to stand his ground anywhere he has a right to be and to use deadly force in self defense if he reasonably believes his assailant is using or is about to use unlawful deadly force against him. The law creates a presumptionthat the use of deadly force was justified, and if justified, the law grants the actor immunity from both civil and criminal liability. Additionally, the law prohibits a law enforcement agency from arresting the actor unless it determines that there is probable cause (to find) that the deadly force was unlawful. Under such circumstances, people may kill with impunity. However, Alabama legislators exercised some restraint and stopped short of awarding damages in civil actions.

Politicians and legislators also respond to lobbying tactics. It appears that in Alabama, as in Florida, the NRA lobbied for the change. The NRA-backed legislation became effective in Alabama on June 1, 2006. Just one week later a similar bill became effective in South Carolina. The NRA promised its constituency that it would see to it that the “stand your ground” rule becomes the rule in every state. The organization has kept its promise. The NRA train is rolling and making fast tracks. In each of the above referenced states, the law passed quietly with very little public scrutiny. Worse still, some states keep no record of the legislative debate, thus virtually immunizing those who voted for the legislation from public rebuke.

Thomas Paine warned against failing to get to the source of a matter. In Alabama there had been no furor, nor incidents, such as an appreciable increase in violent crime that might have justified a sudden change in the state's self-defense laws. The NRA was the source of the legislation, in pursuit of an agenda that had nothing to do with self-defense because self-defense already existed in the law. In Florida, the bill's proponents admitted that it was not introduced in response to a specific case or incident, but rather as an attempt to counterbalance the protection courts gave to the rights of criminals vis-a-vis the rights of their victims. Ironically, members of law enforcement agencies were opposed to the Florida law. In Alabama, the recommendationto change the law did not come from the Advisory Committee on Criminal Justice, the group charged with the responsibility of keeping the code current.

3. The NRA campaign for Stand Your Ground law

The NRA is touting this “stand your ground” rule as the Castle Doctrine. On its face this language seems benign. It promotes this agenda with catchy phrases such as “putting the law on the side of the victim, not the criminal” and “criminals will think twice.” These phrases tend to make the listener feel, first alarmed that the law is not on his side, then indignant that the criminals have all of the rights, and finally emboldened to set aright this imbalance in the scales of justice. However, this is subterfuge, because the Castle Doctrine existed in the common law of each of these states before the hue and cry of the proponents of the “stand your ground” laws were heard. People do not have to retreat when attacked in their homes. That is the Castle Doctrine. Furthermore, the defense of habitation doctrine allows the dweller to use deadly force when an intruder makes a violent, tumultuous, or riotous entry into the home. Historically, the Castle Doctrine applied strictly to the home and never included public places such as “a park” as a place from which a person did not have to retreat. What the NRA should disclose is that with the passage of these new statutes, the Castle Doctrine will be expanded beyond the castle and into the streets and people who kill will be immune from liability. The caption for the NRA article states: “With the NRA at the switch, the Castle Doctrine continues chugging throughout the nation, reuniting Americans with the right to protect themselves and loved ones from danger.” This statement is disingenuous. Americans have always had the right to defend themselves and have never lost that right. Self-defense existed in the law before the passage of these new statutes. These NRA-backed laws are reminiscent of the Wild West days when enemies settled their disputes in the streets and the survivors walked away without any consequences. This attitude is best reflected in a statement from a John Wayne character, “Out here, a man settles his own problems.” The NRA should admit that its true agenda is a battle for gun rights.

Even in jurisdictions that required retreat before the use of deadly force, an assailed person had no duty to retreat if faced with an imminent threat from which there was no safe retreat or which exposed one to greater peril. The premise espoused by this NRA “train” seems to be that now that the new law is on the books, Americans can defend themselves. But as stated before, self-defense already existed in the law. A Kentucky judge who presided over a case involving Kentucky's new law viewed the law as addressing a problem that did not exist.

The law holds the sanctity of life, even that of the wrongdoer, above all else. As Professor Beale stated:

It is certainly true that every citizen may rightfully traverse the street, or may stand in all proper places, and need not flee from every one who chooses to assail him....But the law does not apply this right to homicide. The question here does not involve the right of merely ordinary defence, or the right to stand wherever he may rightfully be, but it concerns the right of one man to take the life of another. Ordinary defence and the killing of another evidently stand upon different footing. When it comes to a question whether one man shall flee or another shall live, the law decides that the former shall rather flee than that the latter shall die.

B. States which moderately changed self-defense law

Indiana, Kansas, Louisiana, and South Dakota accepted some changes to their respective self-defense laws. Although these states extended no duty to retreat from dwellings to occupied vehicles, they stopped short of giving defendants blanket protection for their use of deadly force.

C. States which rejected proposed change to self-defense law

“Sometimes retreat really is the best reaction.”

Alaska and Arkansas retained the duty to retreat before resorting to deadly force where it can be done with complete safety. Both retained the Castle Doctrine but expanded it moderately. Alaska provides protection at one's place of business; Arkansas does not, but extends its Castle Doctrine to the curtilage of the property.

1. Arkansas

Arkansas is one of the states that adhered to the retreat doctrine. However, in the 2007 session, the Arkansas Legislature considered abrogating the retreat doctrine in favor of a “stand your ground” doctrine. This proposed senate bill was amended to delete the proposed “stand your ground” change, and the amendment retained the requirement to retreat. Yet, the amendment did not limit the Castle Doctrine exception to retreat to the dwelling only, but extended it to the curtilage of the property. Meanwhile, the house had proposed a bill which would have been known as the “Stand Your Ground Law.” It would have removed the duty to retreat, created presumptions regarding the use of deadly force, and granted civil immunity to one who used deadly force. It appears that legislators had questions about the constitutionality of the Florida law because one representative requested and received an opinion from the Arkansas Attorney General. Even though the attorney general opined that Florida's statute creating presumptions, authorizing use of deadly force, and granting immunities was not offensive to either the Arkansas constitution or the United States Constitution, the Arkansas Legislature resisted the urge to abolish the retreat rule and rejected Florida's lead of creating presumptions and granting immunity to individuals who kill in self-defense. Arkansas's amendment extending the Castle Doctrine to include the curtilage is in line with Beard v. United States. There, the Court stated that because the “defendant was where he had a right to be,” there was no duty to retreat. The facts of the case indicate that the defendant was standing on the property where his home was located. The defendant was fifty to sixty yards from his house. Therefore, when the Court stated that the defendant did not have to retreat because he was where he had a right to be, it meant that because the defendant was at home, he did not have to retreat. The Court extended the Castle Doctrine exception to the premises, but no further. The line of cases following Beard and adopting the “stand your ground” doctrine when one was where he had a right to be failed to make the distinction. This failure has led to a misapplication and expansion of the rule beyond its intended boundaries. In many states recent legislative changes to self-defense laws include “any place” where a person may be, not limited to the house or home. Arkansas has expressly kept the exception to the duty to retreat rule to the limited situation by maintaining a connection to the home. To avoid any confusion and to exclude the streets, the proposed amendment defines curtilage. Other states facing this issue should follow Arkansas, rather than Florida or Alabama.

D. States which have legislation pending

Seven states considering a change to their self-defense laws have bills pending. They are Colorado, Minnesota, Ohio, West Virginia, Maryland, New Mexico, and Pennsylvania.

IV. Impact of NRA-Inspired Statutes

A. Recent Impact in Florida

“It is undoubtedly distasteful to retreat; but it is ten times more distasteful to kill.”

While it will take more time to determine the true impact of these laws, Florida has begun to see some results. After the passage of Florida's “Castle Doctrine,” the police wondered how they would enforce the statute. In 2006, just one year later, those concerns materialized. In Florida, the police agencies are enforcing the statute differently. In one department, after being called, a detective elected not to investigate a shooting involving a teenager, while other counties expect detectives to investigate cases where persons are shot and wounded. One sergeant noted, “If you don't investigate every won't be able to tell if there was reasonable fear.” Then, he correctly inquired, “But what's reasonable fear? It's so vague, it's different for every one.” And therein lies the problem. The difficulty lies in determining when the deadly force was applied in self-defense rather than because of fear or hubris.

It is well demonstrated in the choices made by two Florida residents. One chose to retreat in the face of an attack in the park. He was attacked from behind, but retreated to his car, retrieved his gun, warned his attacker to stay away, and fired a shot into the ground. The police arrested the man and the assailed Floridian returned home. The second case turned out differently. The homeowner shot a stranger who threatened him with his fist. He was cleared by the grand jury. However, it has caused a deep rift between him and his neighbors because the person he shot and killed was his neighbor's guest. The shooter regrets the incident, stating, “[u]nfortunately, I had to make a decision that day that changed my life forever. I wish I could turn back time.”

A more recent case further demonstrates the dilemmas for police, prosecutors, and juries inherent in the “stand your ground” law. While walking his dog, a man was assailed by occupants of a jeep who tried to run him down. He shot at them five times through the windshield and then moved to the side of the vehicle and shot nine more rounds, killing two of them. The prosecutor filed murder charges, and at trial argued that the defendant had exceeded the force justified when he continued firing after shooting the driver and stopping the jeep. The jury acquitted him. While it is true that the law did not require the shooter to retreat, but permitted him to stand his ground, it did not sanction using more force than was necessary to repel the threat he faced. Once he shot and killed the driver of the vehicle, presumably in the first round of shots, the threat of being run over had ended.

B. Projected Impact on Racial Minorities

“[T]he death of a man, however it happens, will leave some stain behind it.”

At common law deadly force was never permitted, only justified or excused in certain narrow circumstances. The Castle Doctrine was one of the exceptions. The overarching goal was to prevent deaths and to preserve life. Entitlement to use deadly force in self-defense turns on the reasonableness of the actor's belief that 1) imminent danger exists; and 2) there is a necessity to use deadly force to thwart the danger.

These new statutes present potential danger for society at large, but they particularly endanger racial minorities. These statutes create a vigilante atmosphere. The hypersensitive individual, such as Bernhard Goetz, will interpret every act as being menacing and life-threatening if made by any member of a group he fears. Operating under a “reasonable belief” that he faces a threat of harm to himself, and a “reasonable belief” that deadly force is necessary to defend him, he will shoot quickly. In many cases, his victim will be a member of a different race or class. The new laws will presume that his act was proper and grant him immunity for his deed. Second, the law has a long history for creating pretexts for using deadly force in cases where racial bias or personal feuds exist. In 1994, Professor Armour posed a hypothetical which best demonstrates this phenomenon. She describes a white woman at an ATM being approached by a black man in a trench coat. He puts his hand in his coat, takes hold of something and begins to withdraw it. “Panic-stricken at the image before her...the woman pulls a pistol from her purse and levels it at the entering figure.” What the man has is a billfold, which she perceives to be a handgun. So she “shoots and kills the black man.” According to Professor Armour, the woman will then claim self-defense by arguing that “the black victim's race is relevant to the reasonableness of her belief that she was about to be attacked.” According to Professor Armour, the white woman in her hypothetical would be viewed as acting reasonably. “First, she [would] claim that it was reasonable to consider the victim's race in assessing the danger because most people would do so.” “Second, she could claim that her consideration of the victim's race was reasonable because blacks commit a disproportionate number of violent crimes and therefore pose a greater statistical threat.” Third, “if she had previously been violently assaulted by a black individual, she might claim that her overreaction to the victim's race was reasonable in light of her earlier experience.” She further argues “if we accept that racial discrimination violates contemporary social morality, then an actor's failure to overcome his racism for the sake of another's health, safety, and personal dignity is blameworthy and thus unreasonable, independent of whether or not it is “typical “.”

If we were to change the race of the actors in Professor Armour's hypothetical, would the outcome be different? Suppose the woman at the ATM is black and the man approaching her is white. If the black woman shot the white man, under the same circumstances, would she be equally justified in shooting? Probably not. As further demonstration of Professor Armour's argument about race and reasonableness, I will cite an example from my fall 2006 criminal law class discussion. While discussing Tennessee v. Garner, I referenced the Amadou Diallo shooting to enrich the dialogue. Students discussed the reasonableness of the conduct of the four white officers when they shot at Mr. Diallo.Some students vigorously defended the officers' actions as being reasonable. I altered the fact pattern by changing the race of the actors: I made the victim white and the four police officers black. I asked the students if the black officers' conduct of shooting the white man forty-one times was reasonable. The class fell silent. The class consisted of forty-six students, forty-four white and two black. Of the students who defended the white officers' conduct, none defended the black officers' conduct or viewed it as being reasonable.

Professor Armour's concerns have been realized in recent sobering incidents of police violence upon minority citizens. Three black males, Amadou Diallo, Devin Brown, and Sean Bell were all killed in separate incidents while being unarmed. On February 4, 1999, Mr. Diallo was killed in a barrage of gunfire while standing in the vestibule of his [apartment] building in Bronx, New York. Police fired forty-one rounds, nineteen of which struck Mr. Diallo. The police claimed that they thought he was reaching for a weapon. Mr. Diallo was unarmed and, in fact, had been reaching for only his wallet.

In February 2005, Devin Brown, a thirteen-year-old teenager, was killed as a result of leading the police on a three and a half-mile chase following theft of a vehicle. When Brown backed the vehicle into the police cruiser, barely missing the officer, the police fired ten rounds into the car driven by Devin. He was unarmed.

In another New York incident, Sean Bell was killed when leaving a bachelor party on the morning of November 25, 2006, his wedding day. The police fired fifty shots at Mr. Bell and his two friends. Mr. Bell died in the fusillade. One friend was shot at least eleven times and the other friend was hit three times. Bell's vehicle was struck by twenty-one of the bullets. Neither he nor his friends were armed.

Finally, Kathryn Johnston, an eighty-eight-year-old, was shot in her home when undercover police opened fire and killed her. In this incident which occurred in Atlanta, Georgia, on November 24, 2006, in the early morning hours after Thanksgiving Day, Ms. Johnston was armed and shot at police when they made a “no knock” forced entry into her home late at night. Under the Castle Doctrine or the defense of habitation doctrine, Ms. Johnston was entitled to shoot without retreating. The police fired back and killed the eighty-eight-year-old woman. She was not the suspected drug dealer they were seeking; neither did the subject of their search live with her.

In each of these cases, police subjected individuals to excessive or inappropriate use of deadly force. In the Sean Bell incident, one police officer fired thirty-one shots. He had to reload his nine millimeter weapon. New York police are trained to shoot, then stop and reassess before shooting again. During this episode, Bell and his associates did not return fire at any time. About the Devin Brown incident, one individual commented, “I know he [Devin] was wrong for stealing the car, but what I really don't understand is the police have had so much training.”

All of these victims were racial minorities. Police, who are trained to make decisions in high-pressure situations, often misconstrue harmless conduct as threatening and as a result, the police kill innocent people or people who pose no life-threatening danger to them. The cases discussed above have shown that the police were wrong about supposed threats when dead “assailants” were found unarmed. The explanation put forth in defense of the police action is a phenomenon called “contagious shooting.” Contagious shooting occurs when police officers get caught in the heat of the moment and fire too many shots.

A recent article in Criminal Justice spoke to the issue of racial bias in the criminal justice system. The article suggested cross-cultural training, cultural sensitivity training, reflection of the community's ethnic distribution in public offices, frank discussions with community leaders, and effective grievance and disciplinary procedures for police misconduct as ways to improve relations. These may be plausible tools for addressing racial bias among police, however, providing similar cross-cultural training to the general population remains problematic. It is the general populace that has been licensed to kill under these new laws. One can logically conclude that such incidents will become more frequent as self-defense falls under the increasing sway of the NRA and the “stand your ground” doctrine.

C. The Reasonableness Test

“[T]he law rightly insists that our actions be reasonable. It does not require you to be unafraid...or not to suspect a stranger. But it does uphold the worthy standard that you have no right to translate your fear into aggressive, dangerous action that is out of proportion to any threat. Bernhard Goetz did that.”

The question of the duty to retreat is a problem only when deadly force is used in self-defense. Before an actor will be justified in using deadly force, she must believe that deadly force is necessary. Actual peril need not exist, but must be apparent.

There is a wide margin of error between actual peril and belief that peril exists, and life and death lie within that margin. The actor's belief need not be correct, as long as it is reasonable. Edward East is credited with interjecting the concept of “reasonableness” in the law of self-defense. There are several prongs of reasonableness. First, the actor must be reasonable in her belief that a threat of death or serious bodily harm is imminent. Second, she must be reasonable in her belief that force is necessary. Third, she must reasonably believe that deadly force is the proper amount of force required. If the belief was reasonable, but wrong, the actor will be justified in applying deadly force, while the victim will be dead and unvindicated. Should defendants be liable for the harm caused by their mistaken beliefs? Yes. Certainly, a mistake as to the degree of force necessary to repel the threat (excessiveness) should be reviewed and held to account. After all, this kind of mistake has the potential to have the greatest impact on the preservation of life. But the new law says no. What does this say about the sanctity of life? It implies that innocent people are expendable as long as fearful people are reasonable when they kill. In this scenario, the law creates an anomaly. When citizens are mistaken in their judgment, we should not accept their acts as the “cost” of balancing the scales between victims and criminals. When a member of the law enforcement shoots or kills, an investigation takes place. This new law presumes that the lay person is justified in the use of deadly force and prohibits an arrest. We should not be so cavalier about life such that we are willing to accept the loss of an innocent life or serious bodily injury to an innocent person. If, under the circumstances, the investigating agency finds that there is no criminal liability, we should not deny the innocent person's family the right to recover for the wrongful death or the battery in a civil action. We profess to believe in the sanctity of life. Under this principle, every life has value, even that of a wrongdoer. Yet, when we preclude the victim or his estate from filing a civil action, we devalue the innocent life. This is done in the name of having the right to stand one's ground. There is a “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” If “our society has willingly chosen to bear a substantialburden [of allowing the guilty to go free] in order to protect the innocent,” then another corollary should hold true: it is far worse to kill an innocent man than to let a guilty one go free or live.

Professor Sanford H. Kadish states that the extension of the right to resist aggression flows from two contending principles: the principle of autonomy and the principle of proportionality. According to the first, there should be no limit on the right to resist threats to the person of the actor or interests closely identified therewith. According to the second principle, the moral right to resist threats is subject to the qualification that the actions necessary to resist the threat must not be out of proportion to the nature of the threat. Legislators who are concerned about the overbreadth of these new laws agree with the second principle.

V. Conclusion

“We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind.”

Paine wisely advised that we should look to the origin of things to get an understanding of them. With this article, this author attempted to get an understanding of why the NRA was proposing these statutes. Conspicuously, in some states, there is no legislative record of the floor debates to explain why. In the process, I was forced to get to the origin, Sir William Blackstone; and in so doing, I learned that the NRA was correct, at least in one sense. The problem lies in the nomenclature of criminal law. In modern criminal law, we categorize every case in which a person kills to protect himself as a self-defense case. Originally, there was a distinction: there were cases of prevention of forcible crimes or cases of self-defense. In cases involving the prevention of any forcible atrocious crime, no retreat was required, and if a killing occurred while defending against such an incursion, no criminal liability attached. However, this was not considered self-defense. True self-defense occurred in cases of simple assaults. In those cases retreat was required, so that if one killed an attacker before retreating, he was liable for the death.

With the passage of these so-called “Castle Doctrine” statutes, the NRA seeks to grant immunity from prosecution, civil or criminal, in all cases of “self-defense” killings. The stated goal is to protect innocent people from the criminals. However, a paradox is created. These laws are passed to protect the law-abiding people from criminals. Yet innocent people may end up being killed because of the new laws, while nothing will happen to the killers. No one will be punished. There once was a time when we punished all homicides. Soon, we will punish none. Thus begins a transmogrification of the law.

With this article, I propose that, where enacted, these new laws should be repealed and where pending, they should be tabled. These “stand your ground” statutes have passed quickly and quietly in state legislative bodies across the United States. Most were passed without any notice of the great change that the law will bring. There are deadly consequences to their passage. More violence is not the panacea for violence. I propose that we take note of these bills and pause long enough to discuss and consider what could happen upon their passage. If we do this, we might achieve our true goal - avoiding homicides. As there is nothing new under the sun, I end with the words of Prof. Beale:

If the law is to be carried out it must protect the state against homicides. The interests of the state alone are to be regarded in justifying crime; and those interests require that one man should live rather than that another should stand his ground in a private conflict.

Associate Professor, Faulkner University, Thomas Goode Jones School of Law. B.A. Hendrix College, 1986; J.D. Temple University, 1991.