The Volokh Conspiracy
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Bystander's Defensive Shooting of Titusville Shooter Has Nothing to Do with "Stand Your Ground"
As often happens, news reports misunderstand what "stand your ground" laws mean.
It appears that an "unidentified vendor with a licensed, concealed weapon" critically wounded -- and, more importantly, stopped -- someone who had been shooting at a "Peace in the City" event yesterday at a Titusville, Florida park. Florida Today (J.D. Gallop) and Spectrum News 13 have reports (which should, as always, be taken with an extra grain of salt because the shooting is so recent).
According to police, the man who fired shots, had been involved in a fistfight with another person at the park. He left and returned minutes later with a gun and opened fire.
The unnamed vendor then shot the shooter, whose own shots had, fortunately, missed everyone.
If the facts are as described, the vendor deserves great praise; and the Florida shall-issue law, which lets pretty much any law-abiding adult get a license to carry concealed deserves praise, too. (One can, of course, debate whether on balance shall-issue laws are a good idea or a bad one, but this seems to be an example of its working as intended.) Right now, over 40 states are shall-issue (or don't even require a license); but when Florida shifted to shall-issue in 1987, it was just the 10th state to take such an approach, and many credit Florida for helping launch the movement.
But Florida's well-known "stand-your-ground" law (which also represents what is today the majority view among the states) is not relevant here, contrary to what the Florida Today story says, and what I expect others to say (again, given the history of media misreporting of this). Stand-your-ground laws generally resolve an important but narrow legal question that has been debate in the U.S. for over 200 years:
- If you are threatened with deadly force (or rape or kidnapping or, in some states, some other serious crime)
- outside your home (or, in some states, your workplace)
- but you can avoid the threat with complete safety by retreating,
- are you allowed to use deadly force to stay where you are and defend yourself (that's "stand your ground")
- or do you not have the right to use deadly force because you can retreat (that's "duty to retreat")?
You can imagine situations in which this might arise, e.g., if you're in a car and someone is running at you with a knife, so you can just drive away, or if you're threatened by someone who you know won't attack you if you do retreat. But it only arises if retreating will avoid the threat with complete safety, so that (in theory) it's not "necessary" for you to use deadly force, since you have a nondeadly alternative (retreat).
But this is almost never in play when you are threatened by someone with a gun (unless it's the rare situation when you're sure he won't shoot you in the back if you leave). And it's likewise not in play if you're defending others from death or serious injury (as you are legally allowed to do), since your retreating won't prevent the threat to them (again, setting aside some rare scenarios, such as if they're all in the car with you and you can drive away). In the Titusville case, the defender is protected by the general law of self-defense, which in this respect is present in all the states; in Florida, the provision says,
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
The defender does not need the "stand your ground" version of the law, which in Florida adds, "A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be."
Florida self-defense law does have an extra provision that is sometimes swept (confusingly, I think) under the "stand-your-ground" umbrella: The provision in Fla. Stat. 776.032 that lets defendants who claim self-defense get their prosecutions dismissed before trial, unless the government can persuade the judge that the self-defense claim is very likely unsound:
(1)?A person who uses or threatens to use force as permitted in [the substantive self-defense provisions] is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened ….
(3)?The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
(4)?In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
But, if the facts are as the news stories describe, the bystander who shot the shooter would have acted legally in all states, with or without Florida's specially self-defense-friendly provisions (however useful those provisions might be, substantively or procedurally, to criminal defendants who claim self-defense).
Thanks to InstaPundit for the pointer.
