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July 26, 2013

M.D. Harmon: All Americans deserve the right to stand their ground

So, now we're engaged in one of those "great national conversations" that our leaders seem to demand on a regular basis, this time on so-called "stand your ground" laws.

Those laws are found in about 24 states, and court decisions have adopted the standard in a half-dozen others (not including Maine), according to constitutional lawyer Eugene Volokh.

Such laws permit people to defend themselves in public areas when threatened with forcible assault; that is, they have no "duty to retreat."

George Zimmerman's not-guilty verdict in his second-degree murder case in Florida produced a national outcry (in some quarters) over Florida's self-defense statutes, even though "stand your ground" was not part of his defense.

Zimmerman's version of the case was that he couldn't retreat because he was prone on a sidewalk beneath his assailant, Trayvon Martin, who was hitting him and beating his head on the concrete.

So his case was judged under self-defense rules that have been part of both statutory and common-law standards for centuries.

But even the broader "stand your ground" standard isn't new: State court decisions in the late 1800s cite it as a settled practice.

As one among many, here's a decision from Indiana in 1877: "The weight of modern authority ... establishes the doctrine that when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable."

Nevertheless, a wide variety of sources have called for review and repeal of "stand your ground" laws, alleging they are disproportionately used against blacks.

As it turns out, that isn't true, at least in Florida. But first, let's recall that by the mid-1900s, the "stand your ground" standard had been unwisely set aside, and citizens lawfully going about their business both at home and in public were required to yield to criminals by retreating from the threat of illegal force if at all possible.

That is, if you were in your living room and someone broke in, the law expected you to retreat to the farthest corner of the house and let the robber walk off with your goods.

Only if you were pursued into that corner could you lawfully use force in your defense.

The utter injustice of thus privileging criminals over law-abiding people -- it is, after all, your house, your property and your life -- led first to what were called "Castle Laws," saying there was no duty to retreat in your own home, your "castle."

And "stand your ground" laws were widely readopted when it was realized there's no reason to let a criminal compromise a person's right to be secure in any other place where he or she is legally permitted to be.

Attorney General Eric Holder recently told the National Association for the Advancement of Colored People that "It's time to question laws that senselessly expand the concept of self-defense."

But what's "senseless" is to give up public spaces to the control of criminals. That's hardly a mark of a civilized society, as all Americans once understood.

Along with the advent of concealed-carry laws -- now present in all 50 states; the last holdout, Illinois, adopted a concealed-carry statute over its governor's veto earlier this month -- such laws have coincided with a significant decrease in violent crime rates (including firearms crimes) in the past two decades, something I documented in a recent column.

But what about blacks and "stand your ground" laws? Patrick Hawley, writing on the Daily Caller website July 16, noted that "African Americans benefit from Florida's 'stand your ground' law at a rate far out of proportion to their presence in the state's population," according to a 2012 study by the Tampa Bay Tribune.

The paper said blacks relied on the "stand your ground" defense in about a third of the state's cases where it was invoked, a rate double their presence in the state's population (16 percent).

They were successful in court 55 percent of the time, "at the same rate as the population at large and at a higher rate than white defendants," Hawley reported.

Jason Sullum, analyzing the same data at the reason.com website, said on July 19 that "Whites who invoked the law were charged at the same rate as blacks," so it's hard to say bias spurred such prosecutions.

And the law specifically prohibits people from starting fights and then relying on it for a legal defense: As law professor Alafair Burke noted on the Huffington Post website, "A defendant in Florida cannot claim self-defense if he 'initially provokes the use of force' against himself."

So, it appears that states that have "stand your ground" laws have every reason to -- well, stand their ground.

When will Maine join the two-thirds of states that don't surrender public spaces to criminals?

M.D. Harmon, a retired journalist and military officer, is a free-lance writer and speaker. He can be contacted at:

mdharmoncol@yahoo.com





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