The legal right to “stand your ground” is just one element in the fabric of a state’s self-defense laws and cases. Tragically, too many armed civilians seem to misunderstand the scope of these laws, and find themselves on the wrong side of criminal charges and convictions.
Just because a state recognizes “stand-your-ground” doesn’t mean we can ignore all the other self-defense laws or ignore common sense in a deadly-force situation. Deadly force can be used in self-defense only in Imminent Defense of Life (“IDOL”).
Our view of an IDOL Analysis includes asking (if time is available) up to five different “W” questions: WHO poses a deadly threat; WHAT is the imminent threat; WHY NOW–why must deadly force be used now to stop the deadly threat; WARNING–is warning a feasible and safe option; and WITHDRAW–is withdrawal or retreat a feasible and safe option?
Why do we think it is important to consider the possibility of WITHDRAWAL even in a “stand-your-ground” state? Because the touchstone of deadly-force law is “reasonableness,” not standing your ground. Deadly force can only be used in Imminent Defense of Life if reasonable person in your shoes would also find deadly force a necessary option. If, at the time of a potential confrontation, you are thinking about “standing-your-ground,” your mind might not be able to effectively process the other critical self-defense elements that must be accounted for to make a “reasonable” decision to use deadly force.
So, in our view, it is better to keep focused on a proper IDOL Analysis–determine if deadly force is reasonable under all the circumstances facing you.
Stand-Your-Ground: Not Just for “Gun” States
Most people would agree that California is decidedly an “anti-gun” state, while Texas is decidedly a “pro-gun” state. Nevertheless, laws of the two states might be remarkably similar when it comes to the duty to retreat, or the right to “stand your ground.”
Let’s take a look:
While there is no statutory “stand-your-ground” law in California, California Criminal Jury Instruction 3470 takes a very clear and common-sense approach to the problem:
A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of [death or bodily injury] has passed. This is so even if safety could have been achieved by retreating.
This jury instruction has been cited in a California reported case as recently as October 5, 2011 in People v. S.G. (Cal. App., 2011).
By comparison, Texas has legislatively adopted “stand-your-ground” laws in various sections of the Texas Penal Code. The Texas language generally reads as follows:
A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force…
So the Texas law only allows one to stand his or her ground when the person “has a right to be present at the location where deadly force is used” and “not provoked the person against whom the deadly force is used…”
California has no such narrowing restrictions in its jury instruction, but the balance of Instruction No. 3470 has provisions that do more or less the same thing—focusing on the duty to retreat if in mutual combat.
To be sure, there are differences between the Texas approach and the California approach. But, at a high level, both the Texas statute and the California jury instruction seem to be getting at the same problem through different ways: one who is a provoking or causing a conflict cannot use “stand your ground” as an excuse for deadly force. Deadly force must be, in all circumstances, a reasonable course of action.
Retreat While Holding a Gun?
While discussing the duty to retreat question, one comment on tactics should also be raised as food for thought: should a person holding a firearm on an assailant, retreat by backing up?
A highly-regarded police tactics expert recently testified in a federal civil trial in Los Angeles that a police officer holding a gun on a dangerous suspect should not be expected to back up with a gun in his hands. A person backing up while keeping his or her eyes on the suspect might trip on an obstacle, a curb, or step into danger. Most tactics instructors teach that backward movement with a weapon must be made only with great caution.
Again, the law of deadly force resoundingly depends on the touchstone of “reasonableness.” Even though it might be “possible” to back up with a gun in your hands in a deadly encounter, would it be “reasonable” to expect you to back up under the circumstances?
Sound tactics make deadly force decisions easier. Often times, moving (“retreating”) to a position of substantial cover, if that option is available, makes great sense from both a tactical and a self-defense standpoint.
Expert tactical instructors constantly reinforce that the safer a position you can take in a deadly encounter, the longer you can let a situation develop before making a deadly force decision. This makes great common sense.The safer you feel, the less threatened you are—and the less likely you will need to use deadly force. Conversely, the more at risk you feel, the more threatened you feel—and the more likely you may feel the need to use deadly force.
There are at least three big advantages to seeking cover, where reasonably possible: first, you are keeping yourself more safe in a dangerous situation; second, you can probably make slower, more deliberate decisions regarding use of deadly force—a good thing for everyone; and third, when you are questioned afterward, you can point out that you did, in fact, make a reasonable effort to retreat before using deadly force.