Saturday, May 30, 2020


Article Index

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.