I received a lot of attention for my article on the threat posed by the Indiana statute encouraging homeowners to forcibly resist arrest. That law, backed by the NRA, was representative of the aggressive efforts of the NRA to expand “gun rights” beyond protecting gun ownership and into promoting “gun use,” even against law enforcement.
Those arguing for the law focused upon the fact that the law contains exceptions that foreclose the defense if law enforcement is ultimately proven to have acted rightfully in entering the house. I responded that laws provide incentives and signals, and a law that tells citizens that you do not necessarily have to surrender to police in the first instance, encourages citizens to resist arrest and take their chances in the courts and encourages officers to become even more cautious in the gray area usually involved in domestic and child violence cases.
The Trayvon Martin killing provides another tragic reminder of the dangers of NRA “gun use” laws. The Stand Your Ground law, instituted in Florida in 2005, authorized the use of lethal force when a citizen feels “threatened.” The authors of the law are scrambling to point out that George Zimmerman, who pursued and killed Martin under the guise of the Neighborhood Watch, would not be protected by the law, which does not protect a shooter who initiates the confrontation.
But once again this is irresponsible lawmaking. Zimmerman, who still has his gun permit, believed he was authorized to confront people with a gun if he feared that they were trespassing in his neighborhood. Telling citizens that lethal force is justified, regardless of the setting, sets the incentive for a gun owner to confront another person. The very title of the law, “Stand Your Ground” contributes to this interpretation. It evokes images of Old West vigilante justice.
Beyond the incentive structure it sets, the law also sets up a perverse courtroom battle. Self-defense already existed as a defense in a murder case, but it required some evidence that the alleged murderer attempted to avoid violence and reacted only in self-defense. This requirement set the incentive for retreat, which at best avoided the killing and at worst provided evidence that the killer did not intentionally commit murder. Under Stand Your Ground, an alleged murderer now receives the benefit of the doubt in proving that he reasonably felt threatened. But without the victim’s testimony and no incentive to provide a record for attempted retreat this becomes an incredibly difficult defense to defeat. Moreover, the criminal trial judge determines the validity of this defense, providing the judge almost sole discretion to decide both the criminal case, and civil trials as well, because unlike a self-defense decision, Stand Your Ground provides complete immunity even from civil wrongful death suits.
Again, the authors of the law and their conservative backers will hit the talk show circuit to reiterate that Zimmerman was wrong to believe that this law protected him, but to draw a line from my earlier Indiana article, the legalistic arguments of the bill’s authors run afoul of the finality of bullets.