Civilian Use of Deadly Force in Self-Defense: Public Health, Stand Your Ground

Stand Your Ground and Expanded Castle Doctrine (SYG) laws are part of the broader doctrine of self-defense in US criminal law. They excuse the use of deadly force in self-defense under some circumstances, even when the actor could have safely chosen retreat over violence. The elimination of this “duty to retreat” is said by SYG proponents to reduce the legal risk for people defending themselves and deter criminals by increasing their perceived risk of encountering an armed and ready victim.¹ Although the no-retreat rule embodied in SYG laws has a venerable lineage in Anglo-American jurisprudence, the concept became more salient after the turn of the century—and spread to more states—with support from the National Rifle Association (NRA).²

The effects of SYG laws are hard to study. Both self-defense doctrine and the morality it reflects are complicated, and the changes entailed in SYG marginal.² Legal complexity arises in part because the duty to retreat is a less distinct element of self-defense in practice than it sounds in legal text (Figure 1). Even in states still requiring retreat, a defendant can set forth a version of events (possibly uncontested if the victim is dead) in which retreat was not a reasonable option. Other elements of self-defense interact with retreat. Who was the aggressor? Was violence imminent? Was the defendant’s force proportional to the victim’s? Had the aggressor stopped the attack before the defendant used force? The defendant’s decisions must be objectively reasonable, but the jury will be composed of people with at best a normal distribution of biases and sometimes a skewed one if lawyers have used jury selection skillfully, so that the race, gender, and other characteristics of the victim–defendant dyad will influence juror perceptions of events and judgments of reasonableness.¹

FIGURE 1—

Legal Elements of Self Defense in US Law

Implementation of the law by legal agents, and the public’s understanding of the law, typically diverges from what legislators intend or anticipate. With SYG, there have been many reports of inconsistency and possible implicit bias on the part of police and prosecutors, who make the initial arrest and charging decisions that start, or forestall, a criminal case. Flawed decision making at these early stages is particularly important in states that create an immunity for SYG claimants, who then may also avoid civil liability.¹ For researchers, all that adds up to a process from which any signals about the causal impact of law will be subject to significant distortion.

As the article by Yakubovich et al. (p. 675) in this issue of AJPH shows, the signals that do emerge from this murky legal galaxy are inconsistent with the belief that SYG laws deter criminal behavior. The authors find both a modest increase in homicide at the average state level and a much bigger one in Florida, a state with one of the most protective SYG laws. These findings are consistent with individuals becoming more willing to use force in situations of perceived threat. The strongest signal detected for racial discrimination in SYG emerges in race-of-victim analysis: again the average state-level effects are small, but in Florida, people who kill Blacks and claim SYG are more likely to succeed than people who kill Whites.

This is the point in an editorial when it is customary to call for more research. We certainly need substantially more funding for research on the effects of all kinds of legal treatments to which hundreds of millions of people are exposed over decades,³ not least research on disparate impact.⁴ Until such funding materializes, the evidence reviewed by Yakubovich et al. is probably the best we can expect to get on SYG and supports the recommendations of a 2015 national task force of the American Bar Association.¹ If our aim is to reduce the negative health effects of law, and we are properly committed to extirpating racism in all its forms and mechanisms, then the article has brought us to a modest but important point: legislatures are best advised to repeal SYG laws, expressing as clearly as legislation can that society prefers retreat to homicide and racial equity to enacted racism.

Yet, as Frederick Zimmerman has recently written, public health research cannot confine itself to describing what happens; it must draw on broader theory and experience to consider why.⁵ Along with serious consideration of the evidence of effects, we should step back and consider the SYG phenomenon in a wider resolution. Legislative campaigns can often be best understood as symbolically moral crusades, with interest groups seizing on the production of law to mobilize adherents and claim legitimacy for their ideas.⁶ That can explain the support of the NRA for these laws—and the opposition of anyone for whom NRA support is all that is needed to prove a policy bad. The law does not create the worldview behind SYG; rather it reflects and reinforces it. It is the attitude of SYG that should bother us—and that we should be trying to change—not just its embodiment in SYG laws.

Along with a baseline of implicit racism, the moral chord sounded by proponents of SYG has three dissonant notes: bellicosity, hyperindividualism, and deep pessimism. Starting with the image of the strong man defending his castle, SYG laws evoke a tough individual, alone and with no expectation of communal assistance, resolving disputes with violence. Retreating—or as the more martial among us might say—standing down, only postpones the inevitable or, worse, betrays a dangerous weakness. In this Hobbesian world, life is nasty, brutish, and short, and the most one can hope for is to survive the war of all against all.

Public health should be articulating and actively advancing a more positive worldview. The idea of a duty to retreat plucks the more adaptive strings of ingenuity, solidarity, and optimism. Retreat is the wilier option, better because it avoids the harm that violence does both to the victim and to the fabric of society. It assumes the membership of both parties in a robust civil order to which both will revert once the immediate confrontation is defused, a community in which help can be summoned and will come. The hope that individuals can find alternatives to violence, and can routinely treat each other with more patience and respect, embodies an indispensable optimism about collective efficacy and the future of our society.

People working for public health should support repeal of SYG laws because the best evidence suggests they do harm and not good. But if we fail to understand what SYG laws represent, our advocacy is too likely to take the form of hating on the NRA, its members, and the many people in the United States who feel angry, threatened, isolated, and at their wits’ end. We are apt to win or (probably) lose, without actually touching the deeper problem. The roots of both violence and endemic psychosocial suffering grow in the soil of a drastically inequitable society still living out and reproducing the trauma of racial subordination. Public health research can bring data and social theory to bear, with humility and an ethic of service rather than the pursuit of factional victory.⁷ But perhaps the most important single thing we can advance is solidarity, the idea of a society that cares for itself and its members. Our goal must not just be the repeal of a bad law but that far fewer Americans feel they are alone, beset with threats, in a hostile land.