
The shot that rang out in Sanford, Florida on the night of February 26th, 2012 was heard 
across the nation. Trayvon Martin's death, and the circumstances surrounding it, blurred 
the line dividing victim and assailant and sparked a national debate about the potential 
abuse and possible racial prejudice in connection with what are known as "Stand Your Ground" laws. With the exception of crimes in one's own home, under standard self-defense laws, a victim of a potentially lethal crime has an affirmative duty to retreat, if safely possible, before the use of deadly force is justified against the assailant. In contrast, Stand Your Ground laws remove this duty to retreat prior to using deadly force. 

Stand Your Ground is currently the law in the majority of states. Despite legal, historical and social justifications in support of Stand Your Ground, recent cases highlighting the deaths of young black males have resulted in questions regarding possible underlying racial prejudices and negative consequences of Stand Your Ground. This has led to a spate of criticisms resulting in calls for its repeal by some. Any flaw in Stand Your Ground, however, lies not in the law per se, but rather in the inconsistent or erroneous application of the law which has led to bad results and has further led to false public perceptions. The solution lies not in abrogating Stand Your Ground laws, but in effecting certain changes that will ensure their proper application.

Stand Your Ground is not a bizarre or recent legal contrivance, but is the product of a long legal history (Kopel). Its origins can be traced to natural law philosophy which posits that the right to self-defense is a "primary law of nature" (Fair 157). This right of self-defense is recognized under common law but is limited by a duty to "retreat to the wall," if a safe means is available, before deadly force is justified (Fair 159). However, the "Castle Doctrine" provides an exception to the duty to retreat in cases where a person is attacked at home. The underlying theory is that there is no safer retreat than a person's own home, which is his "castle" (Roberts). While the Castle Doctrine was first articulated by the Supreme Court in the 1895 case of Beard v. United States (Roberts), it has become a nearly universal feature of self-defense law, both under common and statutory law (Fair 159). 

Recently, a majority of states have passed laws expanding the Castle Doctrine to any location one has a legal right to be, allowing a victim to use lethal force in public places without any duty to retreat (Roberts). These laws are known as "Stand Your Ground" laws, and, although they vary from state to state, in essence, they are extensions of the Castle Doctrine (Fair 160). The elimination of the duty to retreat anywhere a potential victim has a legal right to be is not new, however. The concept was first articulated in the 1877 case of Runyan v. State, nearly 140 years ago (Roberts). The legal rationale for the extension of the Castle Doctrine is that "(t)he right to self-defense...is a right that belongs to victims by virtue of being a person, not by virtue of the person's location at the time of the attack" (Fair 161). 

There are also several psychological reasons that support Stand Your Ground laws from both the victim and the perpetrator's perspective. As to the victim, first is the argument that an innocent person is stripped of their human dignity when the state bars the choice to defend themselves and forces them to run away (Fair 162). Second is the fact that the police usually respond to the commission of a crime and are rarely are in a position to prevent it. The ability of the innocent to defend themselves is empowering and reassuring to the public's sense of safety (Fair 163). Third is the effect of Stand Your Ground in minimizing the psychological fallout of violent crime. If the danger is eliminated, the psychological impact may be totally avoided because the crime was not completed; if not, a victim may feel less guilt and shame if they believe they did everything they could to prevent the attack (Fair 165). 

As to the perpetrator, Stand Your Ground may have a deterrent effect if criminals believe there is a risk of encountering deadly victim resistance (Fair 166-167). Second, removing the victim's duty to retreat prior to using lethal force denies the perpetrator the psychological reward of dominance, preventing further emboldenment and leveling the playing field for the potential victim (Fair 169-170). Finally, as a matter of justice, the violent criminal, not the intended victim, should be the one at risk during the crime (Kopel) and the law should favor the rights of the innocent party (Fair 176).

Although Stand Your Ground Laws vary from state to state, Florida's law is instructive. Under the statute, a person can use deadly force and does not have a duty to retreat if the person "reasonably believes such force is necessary to prevent imminent death or great bodily harm ... "( section 776.012, Fla. Stat. (2011)). This is a fairly standard example of a Stand Your Ground self-defense law (Ochs 676). According to legal expert Andrew Branca, Esq., to understand the justified use of lethal force under Stand Your Ground, one must grasp its legal underpinnings. In order to prevail in court, there are up to five elements which must be proved, or a claim of self-defense will fail. These elements are (1) innocence (the claimant was not the agressor), (2) imminence (the attack must be about to occur, not in the future or the past), (3) proportionality (force must be no greater than necessary to repel the attack), (4) reasonableness (the claimant's conduct and perceptions must be objectively and subjectively reasonable) and (5) avoidance (if there is a safe means of retreat, the claimant must use it prior to using lethal force; this is the duty to retreat). In a duty to retreat state, all five elements must be proved, whereas in a Stand Your Ground state,  all the elements except avoidance must be proved; the duty to retreat is simply removed, but the remaining elements must be established in order to prevail (Branca). 

Many criticisms of Stand Your Ground arise from a misunderstanding of these legal requirements. For example, some opponents contend that Stand Your Ground "allows you to use the self-defense law even when your life isn't in danger, just to stand your ground" (Covington). This is not true as a matter of law as the above elements must be established (Branca). However, opponents also claim that "(t)he fact that the news frequently reports non-arrests in shooting deaths" reinforces "the public's presumption that an individual will not have to justify the use of force" (Megale 291). They further claim that "'these laws encourage a shoot first and ask questions later' mentality" (Spitzer). More troubling, critics can cite cases where Stand Your Ground was improperly applied and where guilty people were allowed to go free (Megale 256). Together, bad outcomes and misunderstandings of the law by the public and even among law enforcement ant prosecutors have created some serious unintended consequences that must be rectified. 

Opponents have also argued that racial prejudices will justify the finding of "reasonable fear of great bodily harm" (Covington). This is unfounded, however, because there is no such thing as a reasonable racist under the law; a person's actions must be both subjectively and objectively reasonable (Branca). While some have argued that racial stereotypes of minorities play into what the majority may deem "reasonable" fear (Covington), it is unjust to require cool, cerebral reasoning on the part of the victim with respect to actions that took place during the adrenaline rush of a lethal crime. As Justice Oliver Wendell Holmes famously wrote in Brown v. United States, "detached reflection cannot be demanded in the presence of an uplifted knife" (Roberts). 

Florida's Stand Your Ground law has other specific elements which have been the subject of criticism.  section 776.013 establishes a presumption that a claimant holds a "reasonable fear of imminent peril of death or great bodily harm" against someone who enters their dwelling or vehicle and further presumes that the assailant intends to "commit an unlawful act involving force or violence." Additionally,  section 776.032 grants the claimant immunity from criminal prosecution and prevents their arrest or detainment in custody unless there is probable cause that the force used was unlawful. While these presumptions, coupled with immunity from prosecution, function to protect a claimant from having to "lawyer up" in defense of his actions (Kam), they have been criticized as creating an irrefutable case of self-defense for anyone claiming Stand Your Ground (Megale 267). This is a fair point as a decedent cannot rebut the claim of self-defense and there is rarely enough evidence at a crime scene that, without in-depth questioning of the claimant, may rise to the level of probable cause to overcome the claimant's immunity from prosecution (Megale 267). 

These provisions have been further criticized as "hamstringing" investigations (Spitzer).  Police and prosecutors are often confused as to what they may or may not do under the law, such as detaining, questioning or investigating a claimant. Although Florida's law prohibits "arresting, detaining in custody, and charging or prosecuting the defendant," it nonetheless allows law enforcement to "use standard procedures for investigating the use of force" ( section 776.032), which creates uncertainty. Decisions as to how to proceed are within the discretion of law enforcement and may result in the inconsistent application of the law and increase the potential for unjust results (Megale 268). 

Finally, Stand Your Ground has been under fire as critics argue that these laws will put people, especially teens, at mortal risk by increasing the danger of participating in "stupid pranks and petty crime" (Jonsson). They argue that, at minimum, teenagers will have to be educated about the implications of  Stand Your Ground laws on their behavior, citing cases where teens were killed for minor infractions, such as break-ins (Jonsson). In fact, critics point out that the public in general is under misapprehensions regarding Stand Your Ground as reflected in nicknames such as "Make My Day Laws" and" Shoot First [Ask Questions Later] Laws (Ochs 675), as well as in the quip "(d)on't dial 911 -- Use .357" (Megale 287). These snippets of popular culture may, in fact, indicate that a public education effort is necessary to prevent the misuse of Stand Your Ground and to mitigate negative outcomes based on ignorance or  erroneous beliefs about the law. 

In response to criticisms following the Trayvon Martin case, a Florida task force was recently appointed to assess the state's Stand Your Ground law.  The task force "essentially affirmed the law" and recommending no fundamental changes, asserting that all people have a right to feel safe and to defend themselves from attack anywhere they have a lawful right to be as long as they are acting in a lawful manner (Kam). However, the task force did recommend that the law be reviewed by the Florida legislature to address, among other items, the language in the arrest immunity clause with an eye to removing ambiguities so that police may conduct complete investigations (Kam). The task force also called for increased training of law enforcement, prosecutors, defense attorneys and judges to ensure the correct and consistent application of the law (Kam).

Stand Your Ground law, while standing on firm legal, historical and psychological grounds, has been misunderstood and misapplied.  It must be refined and clarified to ensure that it will not be used against other innocent citizens and non-lethal criminals and will not hinder the administration of justice. First, Stand Your Ground laws must be amended to rid them of provisions, such as those which hinder the fact-finding process, which may protect criminal aggressors and cause unintended harm to innocents. Second, training, processes and procedures must be established to guide law enforcement and legal practitioners in the proper execution and administration of the law. Finally, educational programs must be implemented to clarify the law for the public to ensure that it is not relied upon in situations where it is not applicable and to ensure that the public is aware of the consequences of their behavior under the law. Stand Your Ground is basically good law. By amending and clarifying it, both on its face and in the public arena, Stand Your Ground will better serve to protect those it was meant to protect - the innocent victims of lethal attacks - and will greatly reduce or eliminate its unintended consequences. 

