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Self-Defence by Deadly Force in America. A Critical Look at Florida’s Stand-Your-Ground Law

Hausarbeit 2015 18 Seiten

Amerikanistik - Kultur und Landeskunde

Leseprobe

Table of Contents

1. Introduction

2. Theoretical and Historical Foundations of Self-Defence by Deadly Force
2.1. The Theory of Self-Defence
2.2. Self-Defence by Deadly Force in Medieval English Law
2.3. The Duty to Retreat and the Castle Doctrine in American Law

3. Florida’s Stand-Your-Ground Law
3.1. The Situation Before October 2005
3.2. The New Law Since October 2005
3.2.1. The Content of the Law
3.2.2. The Grounds and Arguments for the Law

4. The Downsides of Florida’s Stand-Your-Ground Law
4.1. The Superfluousness and Unproportionality of the New Law
4.2. The Questionable Immunity from Criminal Prosecution and Civil Action
4.3. The Problem of the Irrebuttable Presumption

5. Conclusion

6. Bibliography

1. Introduction

“ This bill basically tells the bad guys: If you’re going to use illegal force, be prepared to face legal force.” 1

Admittedly, it is not easy to condense a complex issue into a catchy one-liner. The result often is an inadequate oversimplification, useful for election campaigns at best, but it can at least hint at the rough structure of the issue. Nevertheless, the debate about “stand your ground” seems to rest on simplification and emotion. Suffice it to say that a former president of the National Rifle Association (NRA), Marion P. Hammer, called opponents of Florida’s stand-your-ground law “Chicken Littles”, and that Martin Dyckman of the St. Petersburg Times advised tourists to avoid Florida because “Lebanon might be safer” (Roig-Franzia).

Since emotions often cloud the view, this paper wants to abstain from them (simplifications, though, will be inevitable) and establish a clear view on some aspects of the past and present of self-defence by deadly force, which is the most controversial case of Florida’s stand-your-ground law. The paper hence aims at two things: shortly explaining the historical roots of the law and then taking a critical look at the law itself in order to determine whether it shows any serious flaws that would justify changing it. In order to achieve these aims, the 2005 senate bill adding “stand your ground” to Florida’s statutes and a number of academic articles in various American law journals, most of which centre on Florida’s stand-your-ground law and its roots, were consulted and evaluated. The results of this research will be presented as described in the following.

After a short account of the theory of self-defence in general, the focus in the first part will be on the history of self-defence by deadly force in English and American law, whose keywords “duty to retreat” and “castle doctrine” are pivotal for understanding today’s law. In the second part, the specific situation of Florida will be addressed. Firstly, by giving a brief overview of how the duty to retreat and the castle doctrine were interpreted in Florida until the new stand-your-ground law took effect in 2005, and secondly, by expounding the content of the law and the arguments that have been put forward in favour of it. The last part will then deal with the arguments speaking against it and produce some of the points it has been most criticised for in the literature.

2. Theoretical and Historical Foundations of Self-Defence by Deadly Force

2.1. The Theory of Self-Defence

American law differentiates between two types of defences: justification defences and excuse defences. In the moral hierarchy that underlies the law, justification defences are “better” than excuse defences. Justified acts are not regarded as wrong, whereas excused acts are regarded as wrong but not blameworthy because of special circumstances (Jaffe 157).

Self-defence falls into the category of justification defences (Jaffe 158), which means that the law in principle approves of violent acts committed in order to defend oneself against attacks. Behaving in a way that would otherwise qualify as criminal is thus sanctioned as morally acceptable if it was in self-defence. Naturally, certain limitations must apply to the concept of self-defence, which is not an absolute right (Ross 1). These limitations are that the attack must be unlawful and imminent, and that the force used to defend oneself must be necessary to repel the attack and proportional to the force the aggressor is using (Jaffe 158).

The interpretations of these general principles of limitation can already be subject to lively debates, but once the question is raised whether the use of deadly force in self-defence can ever be legitimate, debates grow even livelier.

2.2. Self-Defence by Deadly Force in Medieval English Law

In order to understand the treatment of self-defence by deadly force in American law, one has to go back to medieval English law. There, one distinguished between three kinds of homicide: felonious homicide (definite guilt), justifiable homicide (no guilt; when executing a criminal, for example) and excusable homicide (little guilt); cases of killing in self-defence were included in the third category (Bobo 341‒342). Albeit in self-defence, killing another person was still considered a crime, and a defendant could not escape conviction and required a royal pardon to go free, which later became a mere formality (Bobo 340‒341).

However, in order to be convicted “only” for excusable homicide and later pardoned, a self- defender had to meet additional criteria (Bobo 343). Since, at that time, he was a subject of the monarch rather than a citizen and therefore “had no autonomy to deprive the Crown of another subject […] [and] could not take the law into his own hands, but needed to look to the state to ‘champion’ his interests” (Holliday 410), he had the duty to retreat until his back was again a wall.

So only if all ways of fleeing the scene had been cut off, a medieval Englishman, in order to save himself, was allowed to use deadly force against an assailant, and even then had to prove both that he had retreated as far as possible and that deadly force had been necessary (Bobo 342‒343). This reversal of the burden of proof can be explained by “the fear that the right to defend oneself would mutate into the right to murder” (Jaffe 160).

As an exception to the duty to retreat, English law created a second important legal principle: the castle doctrine, which was based on the idea that one’s home was one’s castle, in other words, the ultimate sanctuary from where there can be no obligation to retreat (Bobo 351‒352). Not having to retreat before killing an attacker within one’s own home was also a consequence of the generally accepted rule that one had the right to defend the home (using lethal force) against intruders, even if self-defence did not play a role (Holliday 411).

Here one can see that the castle doctrine’s abrogation of the duty to retreat is, at least partly, based on the protection of one’s property, which appears somewhat paradoxical when looking at self- defence outside the home: Life and health are endangered, but one is nevertheless expected to retreat to the wall before forcibly defending oneself. Once, however, the much less valuable legal asset of property is (also) endangered, retreat is no longer necessary.

The reasoning underlying the castle doctrine could thus be turned around: A duty to retreat which applies even in the face of imminent death should not be neutralised by a comparatively more marginal violation of property rights. The conflict between the value of life and the value of property will also be of interest in connection with the downside of Florida’s stand-your-ground law discussed in chapter 4.3.

2.3. The Duty to Retreat and the Castle Doctrine in American Law

After the founding of the United States, the treatment of self-defence by deadly force was reassessed by the now independent American judiciary: The majority of states abandoned the duty to retreat, whereas a minority upheld “such English cowardice” (Jaffe 160). Particularly southern and midwestern states, with their agricultural economy, were more attached to bravery, honour and equity than to the traditional English law (Catalfamo 507). Consequently, most southern states, by the middle of the 19th century, had adopted the principle that no retreat was required before using deadly force when being assaulted (Catalfamo 508‒509).

In the late 19th and early 20th centuries, the Supreme Court of the United States decided a number of problematic cases of self-defence. In the 1895 case Beard v. United States, the defendant, having killed another man in self-defence on his property just outside his house, was acquitted because the court saw no difference between the house itself and the defendant’s premises as far as their function as castle was concerned (Ross 12). Hence, he did not have the duty to retreat, and the castle doctrine was broadened “to include the outside area around or near the home” (Ross 13).

Deciding Allen v. United States in 1896, the court ruled that there had been a duty to retreat for the defendant, who had been in a public place when being attacked, not on his property (Ross 13). It seemed that the Supreme Court was relying on the old principle of the duty to retreat with its accepted castle doctrine exception. Nevertheless, there was still no consensus amongst the states’ jurisdictions (Ross 13).

The most important of these cases, Brown v. United States, was put before the Supreme Court in 1921. Brown had repeatedly been threatened and assaulted by another man, whom he shot dead upon being attacked again, without retreating as far as possible and not on his own premises (Bobo 350). Having originally been convicted because he could have fled without endangering himself, Brown was acquitted by the Supreme Court for two reasons: As he was faced with serious danger, he could not be expected to weigh all possible solutions in a rational manner, and even though he was not on his own property, he nonetheless had a right to be where he was (Bobo 350‒ 351). In effect, this meant that the Supreme Court had once again expanded the castle doctrine, this time to every place one had a right to be (Ross 16).

One might think now that those rulings, combined with the authority of the highest American court, finally established a uniform opinion about the issue of self-defence by deadly force amongst state jurisdictions. But not all of them have followed the Supreme Court and still demand retreat before allowing the use of deadly force in order to stand one’s ground if the castle doctrine does not apply (Bobo 351). As of March 2014, 19 states2 have a duty to retreat. Nine states3 do not have a duty to retreat because of legal rules drawn from cases like the aforementioned, and 22 states4 have stand- your-ground laws, which explicitly abolished the duty to retreat (Jamison and Cottrill). For the remainder of this paper, the third group will be relevant, focusing on the example of Florida.

[...]


1 Quote by Tony Cornish, Republican member of the Minnesota House of Representatives; see “This Train Keeps a

2 Alaska, Arkansas, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Wisconsin

3 California, Colorado, Idaho, Illinois, New Mexico, Oregon, Vermont, Virginia, W

4 Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West

Details

Seiten
18
Jahr
2015
ISBN (eBook)
9783668971110
Sprache
Englisch
Katalognummer
v489856
Institution / Hochschule
Eberhard-Karls-Universität Tübingen – Englisches Seminar
Note
1,0
Schlagworte
self-defence self-defense deadly force stand-your-ground law Florida duty to retreat castle doctrine National Rifle Association (NRA) gun control guns

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Titel: Self-Defence by Deadly Force in America. A Critical Look at Florida’s Stand-Your-Ground Law