Discredited gun "researcher" John Lott has done it again. In an April 25th op-ed for the New York Daily News, Lott strongly defended the “Stand Your Ground” self-defense law that is at the center of the shooting death of 17-year-old Florida teenager Trayvon Martin. Lott provides a number of distortions about “Stand Your Ground” in voicing support for the law.
Lott opens his piece by stating, “Call them what you will: 'Stand Your Ground' or 'Castle Doctrine' laws.” In doing so, he is grouping together two laws that are in fact radically different - this faulty conflation is at the center of his entire argument. For example, Lott later claims that “In states adopting Stand Your Ground and Castle Doctrine laws from 1977 to 2005, murder rates fell by 9% and overall violent crime by 11%.” But “Stand Your Ground” largely was not implemented until after 2005, making his point meaningless.
“Castle Doctrine” typically refers to the codification of centuries old common law stating that an individual owes no duty to retreat to an invader of his or her domicile. Some states have passed explicit “Castle Doctrine” laws, while others rely on courts to uphold the common law.
“Stand Your Ground,” however, expands “Castle Doctrine” by removing the duty to retreat before employing deadly force outside of the home while often adding the presumption that the use of deadly force was lawful. The first of a wave of codifications of “Stand Your Ground” occurred in Florida in 2005, at the behest of the National Rifle Association. Soon after, the NRA used the American Legislative Exchange Council to push “Stand Your Ground” laws nationwide. Currently at least 25 states have some version of the law on the books. While Lott would like his readers to believe that “Stand Your Ground” is a mainstay of American legal tradition, he fails to note that these laws are quite different from the original English common law of self-defense.
In further defense of the law, Lott then made broad claims about how self-defense in public places worked before the widespread enactment of “Stand Your Ground.” He writes, “Earlier statutes affirmatively required potential victims to retreat as much as possible before using deadly force to protect themselves, sometimes putting their lives in jeopardy.” Actually states that did require duty to retreat largely did so only under the narrow circumstance where the victim could do so safely. If it was unsafe to retreat from a conflict, a victim was fully entitled to use deadly force to protect him or herself from death or serious injury.
The American Law Institute's Model Penal Code (MPC), a highly influential treatise on criminal law, states this fact clearly. According to libertarian UCLA law professor Eugene Volokh's assessment of the MPC, “Even the MPC concludes that one loses the right to self-defense only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one's liberty. And the common-law rule in the duty-to-retreat states embodies this view as well.” John Lott would have us believe that before “Stand Your Ground” victims of serious crimes had a duty to retreat from conflict at their own peril. But that is simply not true.
Lott's dubious legal analysis continues with the statement, “The supposedly infamous laws passed in Florida and elsewhere, in contrast, use a 'reasonable person' standard for determining when it is proper to defend oneself -- requiring that a reasonable person would believe that another individual intends to inflict serious bodily harm or death on them.” Of course what Lott fails to mention is that the elimination of the duty to retreat often means that “Stand Your Ground” confrontations end with only one surviving witness to attest to the reasonableness of using deadly force: the shooter himself. As Zachary Weaver notes in a law review article on “Stand Your Ground,” the problem is that "dead men don't talk." This very scenario played out in the killing of Trayvon Martin. Initially police were unable to arrest Zimmerman because they had to take him at his word regarding what happened prior to the shooting.
And if the case does go to trial, courts have interpreted the law in a way that stacks the deck in the defendants' favor. In Florida, for example, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense, and must do so without the help of perhaps the only witness; the aforementioned “dead man.” On the other hand the defendant need only offer his own version of the facts that make his use of deadly force reasonable.
Lott continues, “Ultimately, it is judges or jurors who determine what constitutes a reasonable fear under such a law, not the person who fires the gun.” This is not necessarily true. For starters, law enforcement confusion about what constitutes justifiable force means that many shooters are not charged with a crime and never have to face a judge and jury. Even if an individual claiming immunity is prosecuted, legal mechanisms exist that can result in a dismissal of the case before there is an opportunity to air out all of the facts surrounding the shooting. In Florida, defendants claiming immunity under “Stand Your Ground” are entitled to a pre-trial hearing that could lead to the dismissal of the case. This hearing could occur before a single judge who decides any factual questions surrounding whether the use of force was unlawful - questions that are traditionally decided by a jury. Instead of using self-defense as a defense at trial, defendants can go free without ever facing a jury that would determine the reasonableness of their actions.
In an attempt to downplay the real world consequences of “Stand Your Ground,” Lott then writes, “The media have also been busy painting a picture that an epidemic of justifiable homicides has erupted since these laws have passed.” This suggestion that media hysteria is to blame is meritless. In Florida there were 43 cases of justifiable homicide in 2005. By 2009, the last year that complete figures were available, the number had risen to 105. The very data cited by Lott confirms this trend is mirrored nationwide. But while Lott criticizes the media for implying causality between “Stand Your Ground” laws and rise in justifiable homicides, at no point does he provide his own theory about what is really behind the uptick. All Lott has done is provide the reader with the pointless conclusion that more justifiable homicides could be tied to any conceivable variable (besides of course “Stand Your Ground” laws).
Lott then labels the “most important issue” in the “Stand Your Ground” debate to be the question, “Have these laws increased total deaths?” This claim is nothing more than a red herring. What is truly at issue is how homicides are treated by the criminal justice system. Based on a large number of controversial shootings tied to the law, critics of “Stand Your Ground” have rightly pointed out that the grave concern about this law is whether it provides vigilantes with a legal justification to kill.
John Lott's methodology is simple. Develop a conclusion, and then invent whatever legal or statistical justifications are needed to reach it. At this point, it is shocking that anyone outside of the National Rifle Association gives any credence to his claims.