Stand your ground laws don't include domestic violence victims
August 16, 2016 10:46 AM   Subscribe

Libby Anne has a well researched and sourced post about stand your ground laws and how they apply, or rather don't apply, to the victims of domestic violence The TL;DR is that in 11 states stand your ground laws explicitly do not apply to the victims of domestic violence (unless they have a restraining order). As a result many women nationwide are serving long prison sentences for defending themselves.
posted by sotonohito (32 comments total) 29 users marked this as a favorite
 
Governing bodies made up primarily of white dudes worked to pass laws that enshrine their right to shoot and kill others while failing to apply the same standards to non-white-dudes? Say it ain't so!
posted by tocts at 10:52 AM on August 16, 2016 [14 favorites]


I don't have time to research it right now, but I am suspicious open carry laws also apply mainly to white dudes.
posted by TedW at 11:00 AM on August 16, 2016 [2 favorites]


Well, this is more systematically horrifying than I even thought.
posted by desuetude at 11:02 AM on August 16, 2016 [5 favorites]


TedW Tamir Rice, John Crawford III, and Philando Castile all demonstrate that this is true. Less fatally, there's a video on youtube showing how wildly differently police react to a black man walking around (legally) with an AR15 strapped to his chest vs a white man walking around (legally) with an AR15 strapped to his chest. The short form is that they said "hi" to the white guy, and had the black guy face down on the street, hands cuffed behind his back, and arresed.
posted by sotonohito at 11:05 AM on August 16, 2016 [15 favorites]


The subject here is the castle doctrine. Under the castle doctrine, there is a presumption that the homeowner can shoot in self-defense when another is in the home unlawfully. For example, someone that breaks into a home is there unlawfully and there is a rebuttable presumption that the homeowner can use deadly force in self-defense.

The author apparently thinks it's weird that that presumption only applies to people in the home unlawfully, and that we should be able to shoot anyone that is in the home lawfully.
posted by jpe at 11:09 AM on August 16, 2016 [6 favorites]


I think the author stops too early, and should've considered how something like battered woman syndrome as self-defense doctrine should be codified.
posted by jpe at 11:12 AM on August 16, 2016


The author apparently thinks it's weird that that presumption only applies to people in the home unlawfully, and that we should be able to shoot anyone that is in the home lawfully.

I think the author apparently thinks it's weird that, as noted in the post and the article, the widely copied Florida version of Stand Your Ground specifically exempts the victims of domestic abuse from that presumption:
and there is not an injunction for protection from domestic violence or a written pretrial supervision of no contact order against that person
Seriously, why is that there? Why do you need to add that to
[t]he person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, [or] residence
Why?
posted by Etrigan at 11:29 AM on August 16, 2016 [9 favorites]


Stand Your Ground specifically exempts the victims of domestic abuse from that presumption:

It doesn't. It exempts people lawfully in the home. There is then an exception for people against whom there is an order of protection.
posted by jpe at 11:32 AM on August 16, 2016 [1 favorite]


It exempts people lawfully in the home. There is then an exception for people against whom there is an order of protection.

Who would already not lawfully be in the home.
posted by Etrigan at 11:36 AM on August 16, 2016 [8 favorites]


Thank you for posting this, sotonohito.

The subject here is the castle doctrine. Under the castle doctrine, there is a presumption that the homeowner can shoot in self-defense when another is in the home unlawfully.

This is not quite accurate; first off, the sentence beginning "Under the..." is difficult to parse as you've written it. The Castle Doctrine doesn't "presume" that someone "can" shoot an intruder, it's a legal principle which provides certain conditional exemptions from laws against killing other people, basically. And I don't think one needs to be the home owner for that exemption to be applicable. And furthermore, it isn't the unlawfulness of another person's presence per se that enables one to use force without trying first to retreat. You've gotten some things confused here.

For example, someone that breaks into a home is there unlawfully and there is a rebuttable presumption that the homeowner can use deadly force in self-defense.

I am not sure if you know what "presumption" means. Whether or not an act involving the shooting of an intruder would be deemed justifiable (under the Castle Doctrine) depends on the way that particular state's laws are written and the circumstances of the event.

The author apparently thinks it's weird that that presumption only applies to people in the home unlawfully, and that we should be able to shoot anyone that is in the home lawfully.

This is wrong. The author is pointing out that, in practice, women and girls who use deadly force to protect themselves in their own homes, and specifically from domestic abusers, tend not to benefit from the exemptions and protections of either Castle Doctrine-derived laws or from the newer "Stand Your Ground" laws, and are instead often prosecuted under the statutes that these laws are intended to confer conditional immunity from.
posted by clockzero at 11:44 AM on August 16, 2016 [11 favorites]


The Castle Doctrine doesn't "presume" that someone "can" shoot an intruder,

It creates a presumption of reasonable fear of severe harm or death, a necessary condition for the exercise of self-defense.

Whether or not an act involving the shooting of an intruder would be deemed justifiable (under the Castle Doctrine) depends on the way that particular state's laws are written and the circumstances of the event.

Obviously. But the castle doctrine creates the presumption of reasonable fear. Here's the FL statute:

A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or anothe

The author is pointing out that, in practice

The author is also making a false claim about the law. There is no specific exception for domestic violence that renders the castle doctrine inapplicable. Instead, there is a general rule that I can't get the benefit of the presumption against people lawfully in my home. For example, I can't invite someone in and then get the benefit of the presumption.
posted by jpe at 11:49 AM on August 16, 2016 [2 favorites]


You're setting up a strawman to be knocked down by invoking Castle Doctrine in the first place.

The author is talking about Stand Your Ground, which is superficially similar, but different in all the ways that matter. For one thing, Stand Your Ground has been successfully used as a defense in shootings in public. Similarly, it ought to apply when an invited guest or legal resident of your home turns violent, and you use deadly force to defend yourself.

This has absolutely nothing to do with whether someone is legally on the property, and everything to do with the right to shoot someone in self-defense rather than the duty to retreat.
posted by explosion at 11:57 AM on August 16, 2016 [18 favorites]


Florida's Stand Your Ground law:
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used or threatened; or
(c) The person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity; or
(d) The person against whom the defensive force is used or threatened is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
Note that (1)(b) says "unlawful or forcible act was occurring or had occurred." So the law protects someone who defends herself against domestic violence, except that (2)(a) says it doesn't.

Why would the author of this law specifically say that this sacred right of self-defense does not apply to people in their own homes if the attacker lives there, if not because he's basically okay with a little domestic violence?
posted by Etrigan at 12:00 PM on August 16, 2016 [20 favorites]


It creates a presumption of reasonable fear of severe harm or death, a necessary condition for the exercise of self-defense.

This is wrong. The Castle Doctrine's mere existence doesn't engender a presumption on the part of the state that an individual had a reasonable fear of harm because, ipso facto, they shot someone in their house that they believed to be an intruder (the SYG laws are written more along these lines, however). The standard for the Castle Doctrine is more about a subjective belief that an attack is imminent, not about fear.

The author is also making a false claim about the law. There is no specific exception for domestic violence that renders the castle doctrine inapplicable. Instead, there is a general rule that I can't get the benefit of the presumption against people lawfully in my home. For example, I can't invite someone in and then get the benefit of the presumption.

The author isn't even talking about the Castle Doctrine when arguing that such an effective exemption exists, she's talking about Stand Your Ground laws, which are derived but distinct from the Castle Doctrine. And her point is correct, in any case: women and girls who use force to protect themselves from domestic abuse are rarely accorded any of the protections entailed in any of these laws, precisely because they are all written in such a way as to protect people from intruders, not from someone else living in the home; this is a huge problem for many reasons, one of which is that, statistically speaking, women and girls are vastly, vastly more likely to be abused, raped, or murdered by an intimate partner or domestic co-resident than by an intruder.
posted by clockzero at 12:12 PM on August 16, 2016 [16 favorites]


Note that (1)(b) says "unlawful or forcible act was occurring or had occurred." So the law protects someone who defends herself against domestic violence, except that (2)(a) says it doesn't.

Why would the author of this law specifically say that this sacred right of self-defense does not apply to people in their own homes if the attacker lives there, if not because he's basically okay with a little domestic violence?


I suppose this is meant to say that if you shoot your son who climbs in the window at night because he snuck out to go to that party but you thought he was an intruder, you could be prosecuted for murder. So, even though you thought he was a scary person who might take your stuff, you don't get to kill him and get away with it.

But, given that a self-defense and stand your ground defense could easily be made in some of these situations where an abuser is actively beating or threatening a person who then shoots the criminal, it seems we are simply declining to view those situations this way. Stand your ground is deeply problematic on every level. This is yet another special level reserved for women and children.
posted by amanda at 1:01 PM on August 16, 2016 [2 favorites]


The author is talking about Stand Your Ground

No, she's clearly talking about the Castle Doctrine, and it's a sign of how shitty the article that you'd misunderstand that.
posted by jpe at 1:01 PM on August 16, 2016 [1 favorite]


The author isn't even talking about the Castle Doctrine

SYG...expands the “Castle Doctrine.” The statute contains two additional unusual components: immunity from arrest and prosecution for anyone falling under the statute and a presumption that a person facing an intruder in a dwelling or residence possesses fear of death or great bodily harm
posted by jpe at 1:07 PM on August 16, 2016


The author isn't even talking about the Castle Doctrine

SYG...expands the “Castle Doctrine.”


I mean, it's right there in what you quoted. SYG expands the Castle Doctrine. Arguing that she's talking about the Castle Doctrine and not Stand Your Ground is like saying that anyone discussing Laverne & Shirley is actually talking about Happy Days.
posted by Etrigan at 1:10 PM on August 16, 2016 [8 favorites]


Note that (1)(b) says "unlawful or forcible act was occurring or had occurred." So the law protects someone who defends herself against domestic violence, except that (2)(a) says it doesn't.

It says that you can't shoot someone that lives there and is trying to get in:

unlawful and forcible entry or unlawful and forcible act

That is not an "exception for dometic violence." It means you can't kill someone teying to get into their own house.
posted by jpe at 1:11 PM on August 16, 2016 [2 favorites]


or unlawful and forcible act

Seriously, you are quoting actual parts that you then ignore entirely.
posted by Etrigan at 1:14 PM on August 16, 2016 [3 favorites]


The author is talking about Stand Your Ground

No, she's clearly talking about the Castle Doctrine, and it's a sign of how shitty the article that you'd misunderstand that.


In the portion of the article that deals most directly with exemptions to self-defense law, the author says this:

In other words, Florida’s “stand your ground” law specifically and explicitly excludes cases where an individual kills someone lawfully living in the same dwelling—i.e., a domestic partner.

I think her meaning is perfectly clear, so I'm not going to bother pointing out that she's talking about what she is talking about.

And as Etrigan noted above, the Stand Your Ground laws are derived from, but also distinct from, the Castle Doctrine. They are related but not the same.

One of the most important differences between the Castle Doctrine and the SYG laws is that the latter frequently do entail the presumption of a reasonable fear of death or great bodily harm on the part of someone facing an intruder to their home or dwelling (or even car, in some states), whereas the Castle Doctrine does not.
posted by clockzero at 1:19 PM on August 16, 2016 [6 favorites]


Why would the author of this law specifically say that this sacred right of self-defense does not apply to people in their own homes if the attacker lives there, if not because he's basically okay with a little domestic violence?

I think the point is more ambiguous than is being acknowleded. I don't think this is an inevitable reading of the intent of this (in my view not terribly well drafted) piece of the legislation.

The broad effect of the legislation appears to be a strengthening of the castle doctrine, and an expansion to include vehicles - the presumption of the existence of a self-defence defence is based upon two things - (1) an unlawful and forceful entry or removal, and (2) a belief on the part of the defendant that this was occurring. It does not deal with what happens when a person lawfully on the premises becomes violent, except when forcible removal is part of that violence. Even before we move on the explicit exceptions, then, there would be an argument that this law does not typically protect victims of domestic violence. It is not typically unlawful to forcibly enter your own property, so this would not normally protect the person using deadly force to protect herself against a partner or former partner using force to enter. So we might well be concerned that this piece of legislation goes out of its way to explicitly exclude such scenarios - the law doesn't seem to require it. At the same time, I think that it's also possible that the exception was included to protect someone who is unwittingly entering property in an unlawful manner, using force, while believing that their entry is lawful, on the basis of their right of access. I think you'd need to ask a criminal lawyer from the jurisdiction in question to comment further on context.

What I would say is that this part of the legislation does not appear to be drawn with the intent of dealing with the sort of interactions that the rest of the article addresses. The mischief it is aimed at appears to be carjacking and home invasion, and it seems much closer to the castle doctrine than "stand your ground" as typically understood. Indeed, the part being quoted is entitled "Home defence".

However, it's worth noting that the preceding section is the broader "stand your ground" law.
776.012 Use or threatened use of force in defense of person.—
(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
(2) 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. 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.
Accordingly, it is not, in my view, accurate to say that "Florida’s 'stand your ground' law specifically and explicitly excludes cases where an individual kills someone lawfully living in the same dwelling—i.e., a domestic partner". The law actually does provide protection in the event that there is a reasonable belief that such force is necessary to defend against serious harm or death, it just doesn't provide a presumption that there is a fear of such harm.

There are questions to be asked about the intent and effect of this bit of drafting, and it's reasonable that the author raises them, particularly in the broader context the article describes. But the article does seem to involve at least a degree of mischaracterisation of the law, and I think it's reasonable to note and discuss that.
posted by howfar at 2:36 PM on August 16, 2016 [1 favorite]


Accordingly, it is not, in my view, accurate to say that "Florida’s 'stand your ground' law specifically and explicitly excludes cases where an individual kills someone lawfully living in the same dwelling—i.e., a domestic partner". The law actually does provide protection in the event that there is a reasonable belief that such force is necessary to defend against serious harm or death, it just doesn't provide a presumption that there is a fear of such harm.

The evidence that the author cites for the empirical pattern of women and girls' cases of self-defense very rarely benefiting from the protections of these laws is exemplary, though. There is a very real and very large gender-based disparity in terms of whose actions these laws tend to protect. I have done research on this. So despite the fact that the letter of the law may seem, in a strict sense, amenable to protecting the self-defense of women and girls, that appearance is sort of beside the point.

There are questions to be asked about the intent and effect of this bit of drafting, and it's reasonable that the author raises them, particularly in the broader context the article describes. But the article does seem to involve at least a degree of mischaracterisation of the law, and I think it's reasonable to note and discuss that.

I think such a discussion, however reasonable in an abstract sense, would completely miss the point of the article.
posted by clockzero at 7:11 PM on August 16, 2016 [4 favorites]


This has absolutely nothing to do with whether someone is legally on the property, and everything to do with the right to shoot someone in self-defense rather than the duty to retreat.

This is not entirely right, according to what I've read. Whether someone has a legal right to be someplace is an important part of how both the SYG and Castle Doctrine laws work. But you're right that waiving the duty to retreat is important.
posted by clockzero at 7:21 PM on August 16, 2016


Terminological Calvinball about distinguishing Castle Doctrine vs. Stand Your Ground does not help the debate. It's just like gun nuts shutting down discussion over hairsplitting on automatic vs. semiautomatic weapons.
posted by jonp72 at 8:21 PM on August 16, 2016 [5 favorites]


Here's my question: most people think SYG is bad law. This exception makes it--in demonstrable cases--even worse.

But why don't we solve that by eliminating the law rather than expanding it?

I do not think there should be prosecutorial immunity based on the presumption of reasonable fear for anyone. It has clearly led to people escalating situations and then standing their ground.

Am I wrong about that? If so, why? What are the situations in which we should presume--without investigation or trial--reasonable fear? When should we eliminate the duty to retreat?
posted by anotherpanacea at 8:36 PM on August 16, 2016


Am I wrong about that? If so, why? What are the situations in which we should presume--without investigation or trial--reasonable fear? When should we eliminate the duty to retreat?

In practical terms, all Police Officers have no duty to retreat, and there's a presumption -- without investigation or trial -- that they have a reasonable fear all the time.
posted by mikelieman at 10:09 PM on August 16, 2016 [1 favorite]


Which, to me, is a deprivation of everyone's equal protection of the law. Anytime someone is shot, the process should be identical for police officers and everyone else.
posted by mikelieman at 10:10 PM on August 16, 2016


I think such a discussion, however reasonable in an abstract sense, would completely miss the point of the article.

I don't think that's the fault of those making engaging in that discussion, however. The article was framed, here, as "The TL;DR is that in 11 states stand your ground laws explicitly do not apply to the victims of domestic violence (unless they have a restraining order)". That's not really a true claim. And the author does seem to make that claim.

It's also notable that there is no reason to think that, were 776.013(2)(a) not a part of the law, a single one of the women described in the article would have avoided prosecution or conviction. From what we are told, the home defence part of the law simply wouldn't apply to cases like theirs in any case.

None of which is to say that stand your ground laws aren't, in concept and execution, inherently protective of privileged individuals generally and white men in particular, but accuracy on specifics is important even (especially) when the general claim is true. We do no-one any favours by handwaving the need for accuracy in such cases. There are a couple of reasons for this. Firstly because it encourages us to waste energy trying to reform laws that simply need repealing, not least because of their discrimatory nature and effect, or at the very least introduces confusion into our discourse about what should be done. Secondly because not every person who reads this article will necessarily have reached the view we share of stand your ground laws, and making erroneous claims about how they work is likely to make the article less persuasive to the unpersuaded. It's distracting, if nothing else, from the persuasive and accurate points made elsewhere in the piece.
posted by howfar at 12:53 AM on August 17, 2016


She wrote a follow-up article about sentencing today. Women Who Murder Their Husbands Are “Wicked” While Men Who Do the Same Are Ordinary Blokes:
After writing yesterday’s post, I came upon something very interesting. A study by Australian researchers published last year evaluated judges’ sentencing remarks in 72 cases of domestic murder—67 involving male perpetrators and 5 involving female perpetrators—and found stark differences between the way the judges talked about men who murdered their domestic partners and women who murdered their domestic partners. While the study looked at cases in two provinces in Australia, many of the same themes transcend borders throughout the West.

As one Australian news site summarized the study:

The researchers found that when it came to sentencing male offenders, the judges went out of their way to present the murderers as essentially good blokes who had gone off the rails. For example, in sentencing remarks evaluating the offenders’ characters, the judges made frequent mention of the men’s involvement in the community and their work ethic.
posted by palindromic at 7:43 AM on August 17, 2016 [8 favorites]


Thank you for posting that fascinating update, palindromic.
posted by clockzero at 10:43 AM on August 17, 2016


Here's my question: most people think SYG is bad law. This exception makes it--in demonstrable cases--even worse.

But why don't we solve that by eliminating the law rather than expanding it?


These state-level laws tend to pass in places where it would be difficult to repeal them for the same reason they passed in the first place. However, one source of support for repeal could be from law enforcement itself: many prosecutors have noted that these laws can make it so tricky to prosecute cases where SYG might be invoked that they may not bother; the laws create so much uncertainty, and grant so much autonomy to wielders of deadly force, that it can seem like a bad gamble. I doubt district attorneys or their staff like that very much.

I do not think there should be prosecutorial immunity based on the presumption of reasonable fear for anyone. It has clearly led to people escalating situations and then standing their ground.

Am I wrong about that? If so, why? What are the situations in which we should presume--without investigation or trial--reasonable fear? When should we eliminate the duty to retreat?


1. Personally, I think you're right about that -- we have legal trials precisely because we want to ensure that justice is served. These laws make it easier to get away with murder, plain and simple. There's no evidence that they deter criminals or help protect innocent people, but there is evidence that they lead to excess mortality and reduce the rate at which cases involving lethal force make it to trial across the board.

2. Presuming that someone has a reasonable fear for their safety if, e.g., their house is invaded doesn't seem problematic; making it legal to shoot at someone just because you're willing to claim that you were scared is crazy.

3. The duty to retreat, under the pre-SYG self-defense laws, is almost always qualified by an important clause to the effect of "if it is possible to safely do so." So, even under the most conservative legal conceptions of the right of self-defense, the duty to retreat is not absolute.
posted by clockzero at 1:56 PM on August 17, 2016


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