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‘Hysterical claims that these laws radically change the law of self-defense are misguided,’ legal scholar argues

A law professor and United States Commission on Civil Rights commissioner recently defended “Stand Your Ground” laws in response to the commission’s new report on the harm such laws allegedly inflict against African Americans.

The commission published the report on April 6, consisting solely of expert testimony given to the commission in 2014 — six years ago.

In her dissenting statement, Commissioner Gail Heriot, law professor at the University of San Diego, argues that much opposition and criticism given against “Stand Your Ground” laws during the expert testimony, as well as in other public statements, are inflated and misleading.

So far to date Heriot’s statement has been downloaded more than 1,675 times with more than 13,400 views of its abstract.

Heriot writes that the commission’s report ignored its own research that indicated “Stand Your Ground” laws do not disproportionately harm African Americans. “This report should not have been published in this form,” Heriot stated.

She added: “When the results of an empirical study don’t come out the way Commission members hoped and expected that they would, the right thing to do is usually to publish those results anyway. Why hide useful information? Instead, the Commission sat on the report for years. Then it decided to discard the draft written by our staff and publish instead a transcript of the witness testimony received at our briefing that took place on October 17, 2014 in Orlando, Florida.”

The commission did not respond to The College Fix’s requests for a comment.

Heriot, in an email to The College Fix, noted: “The draft of the report containing the independent empirical research performed by the Commission’s staff never saw the light of day. The draft is unavailable to the public.”

In her dissenting statement to the commission’s report, Heriot also debunked the notion that “Stand Your Ground” laws are new. “The truth, however, is that ‘Duty to Retreat’ rules and ‘Stand Your Ground’ rules have existed side by side, at least as far back as 17th Century England,” she wrote.

Heriot explained in her email to The College Fix the slight difference between the two:

“State law concerning self-defense tends to come in two varieties. Some states require you to retreat when you are under attack if you know (or should know) that you can do so in safety. Other states allow you to ‘stand your ground’ if you are in a place you have a legal right to be (such as a public place). In recent years, several legislatures in states that previously imposed a duty to retreat have adopted the ‘stand your ground’ approach. In practice, the difference between the two rules is less than it might first sound. All states allow you to defend yourself in your own home. And in very large numbers of cases in which an individual reasonably believes himself or herself to be under attack, safe retreat is not an option.”

Still, many misunderstand the application of “Stand Your Ground” laws.

In her statement to the commission, Heriot defends the specific language and legal implications of “Stand Your Ground” laws against such misinterpretations using the exact language of Florida’s law, passed in 2005.

The Florida law states in part: “A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”

Wrote Heriot: “The apparently widespread notion that ‘Stand Your Ground’ laws allow an individual to use deadly force if he simply ‘feels threatened’ is false.”

“…not just any threat of intentional contact or bodily harm will do. The threat has to put the individual in peril of death, great bodily harm or the imminent commission of a forcible felony (e.g. rape). Moreover, the threat must be imminent. If there is time to call the police, then the police must be called. Any suggestion that deadly force can be employed if someone merely feels threatened is thus false.”

Critics who claim “Stand Your Ground” laws harm African Americans rely on the implicit bias argument, which infers that white people are unconsciously racist and therefore more likely to use deadly force against someone who is black than someone who is white.

Yet, the commission’s empirical study showed no evidence of discrimination against African Americans, according to Heriot. And, in fact, black Americans often use “Stand Your Ground” laws to defend themselves and their families from imminent danger, she noted.

Heriot also refutes those who believe a person who initiates aggression or confrontation can somehow claim self-defense under “Stand Your Ground” laws so as to avoid prosecution, citing again how Florida’s statute only offers protection to those who are innocent victims, not “initial aggressors.”

Heriot offered one argument in favor of “Stand Your Ground” laws, citing the 1876 Ohio Supreme Court decision in Erwin v. State.

The court had decided to adopt a “Stand Your Ground” rule under the premise that they pick the rule that saves the most lives because they understood the danger in sending the message—even if almost imperceptible—to future attackers that their intended victims are “obliged to flee rather than fight.”

She also quoted Justice Oliver Wendell Holmes and his logic that a person facing imminent danger should not be expected to be entirely capable of calculating whether they can safely flee a deadly situation.

Heriot said in her email to The College Fix that she believes there are two main takeaways from her statement:

“First, my dissent shows that the Commission set out to prove that ‘stand your ground’ laws systematically disadvantage racial minorities. But when its own research turned up evidence that this was not so, it declined to publish it. Second, it shows that, contrary to what many people have assumed, ‘Stand Your Ground’ laws are not a new-fangled change in the law. For centuries, courts have wavered between imposing a duty to retreat and allowing victims to stand their ground. Both approaches have been used at different times and in different places. Hysterical claims that these laws radically change the law of self-defense are misguided.”

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