NBLSA: "Stand Your Ground: History, Development, & Significance of the Trayvon Martin Case"

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Distr: Open 20 September 2012 National Black Law Students Association Judicial Advocacy Team “STAND YOUR GROUND”: History, Development, and Significance of the Trayvon Martin Case Contents I. Introduction II. The English Common Law III. Stand Your Ground and Trayvon Martin IV. Stand Your Ground and Minority Defendants V. Model Legislation

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Transcript of NBLSA: "Stand Your Ground: History, Development, & Significance of the Trayvon Martin Case"

Page 1: NBLSA: "Stand Your Ground: History, Development, & Significance of the Trayvon Martin Case"

Distr: Open

20 September 2012

National Black Law Students Association

Judicial Advocacy Team

“STAND YOUR GROUND”: History, Development, and Significance of the

Trayvon Martin Case

Contents I. Introduction

II. The English Common Law

III. Stand Your Ground and Trayvon Martin

IV. Stand Your Ground and Minority Defendants

V. Model Legislation

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I. Introduction

“It is undoubtedly distasteful to retreat; but it is ten times more distasteful to kill.”

– Joseph H. Beale, Jr.1

On the evening of February 26, 2012, in Sanford, Florida, George Zimmerman shot and killed

Trayvon Martin. Zimmerman, a neighborhood watch captain, told police Martin had attacked

him and that he had only shot back in self-defense. After being detained and questioned,

Zimmerman was released because police said they found no evidence to contradict

Zimmerman’s self-defense claim. The events of that night soon came to the forefront of the

nation’s attention, shining a spotlight on an area of Florida law known as “Stand Your Ground,”

which eliminates the common-law duty to retreat and broadly expands the self-defense immunity

known as “the castle doctrine.” The law tilts so strongly in favor of those using deadly force in

self-defense that critics have suggested that a better name for it would be “Shoot First” or “The

Right to Commit Murder Law.”23

As America witnessed Stand Your Ground (“SYG”) at work in the George Zimmerman case,

questions were raised as to how such a law could come to pass. SYG seemingly stacks the deck

against law enforcement and potentially-faultless shooting victims like Trayvon, victims who are

no longer alive to dispute the killer’s rendition of facts. As said by a Sanford detective

investigating Trayvon’s shooting: “The best evidence we have is the testimony of George

Zimmerman, and he says [Trayvon] was the primary aggressor in the whole event, [and]

everything I have is adding up to what he says."

This paper documents the development of Stand Your Ground and examines how SYG, when

combined with racial biases, has a disparate impact on minorities, both when minorities are the

1 Retreat from a Murderous Assault, 16 HARV. L. REV. 567, 581 (1903). 2 See Jason W. Bobo, Following the Trend: Alabama Abandons the Duty to Retreat and Encourages Citizens to Stand Their Ground, 38 CUMB. L. REV. 339, 363 (2007). 3 “Stand Your Ground” terminology employed herein because of the predominance of this term in discussing the laws in academic and news contexts, not as an indication of endorsement or support.

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victims of crime - as in the case of Trayvon Martin - and as applied when a minority defendant

faces homicide charges. Part II will discuss the historical context around the development of

Stand Your Ground laws. Part III discusses the events of the Trayvon Martin case in more

detail, including the role played by race. Part IV traces case studies of minority defendants with

stories similar to Zimmerman’s who were unable to assert the self-defense immunity. Yet, this

paper serves not only to lambast Stand Your Ground laws, but also to correct them. Part V

proposes model legislation that can be enacted by state legislators so as to roll-back SYG or to

prevent its implementation.

II. The English Common Law

When SYG laws were advocated in Florida and other states, their proponents marketed them as a

restoration of a natural right, arguing “[t]he duty to retreat has not always been a part of the

common law. Centuries ago, ‘any man who was feloniously attacked without provocation could

stand his ground anywhere, not retreat, and use deadly force if necessary to repel the attacker.’”4

Under this justification, SYG laws were a mere codification of America’s inherited tradition of

the ancient English common law. Historical context highlights how misguided such SYG

proponents are. There is a long tradition in criminal law of allowing self-defense only when

reasonably necessary, and a well-reasoned, black-letter tradition of a duty to retreat when

attacked outside one’s home. Stand Your Ground laws represent a radical break with these

traditions, the result of political demands by right-leaning activists. These laws have been

associated by scholars with vigilantism.5

Other proponents of SYG laws advanced a competing common law argument: that the early

conditions of America forced the eschewal of the English doctrine and the creation of a new

concept of self-defense.6

4 Senate Staff Analysis and Economic Impact Statement, *2 , Florida Staff Analysis, S.B. 436, 2/25/2005.

“From the battlefield to the baseball field, Americans are loath to

5 See e.g., Bobo, supra note 2 at 364 (2007) (quoting president of National District Attorneys Association Paul Logli: SYG laws “basically give citizens more rights to use deadly force than we give police officers, and with less review.”). 6 David Collins, The Duty to Retreat, 3 CRIM. JUST. Q. 81 (1975).

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retreat.”7 Thus, the “United States repudiated the English preference for retreating instead of

fighting during the 1800s as the rebellious nation sought to distinguish American bravery from

British cowardice.”8

These contradictory interpretations of the common law tradition are at the heart of the debate

over Stand Your Ground laws. However, an examination of both traditions finds that neither

fully supports the claims of SYG proponents.

a. The Duty to Retreat

“From the beginning of the jurisdiction of the king’s courts over crime to the reign of Edward,”

the common law imposed a duty amongst all citizens to “retreat to the wall” before killing in

self-defense.9 The crown held a monopoly on the legitimate use of force. “For though in cases

of hostility between two nations it is a reproach and piece of cowardice to fly from an enemy, yet

in cases of assaults and affrays between subjects under the same law, the law owns not any such

point of honour, because the king and his laws are to be the vindices injuriarum, and private

persons are not to be trusted to take capital revenge one of another.”10

The common law recognized two types of homicide: justifiable and excusable.11 Justifiable

homicide was homicide conducted pursuant to a warrant or other form of writ by the King –

homicide done in execution of the law.12 These scenarios were limited, and only where the

crime was punishable by death. Justifiable homicide was a defense to robbery, for example, but

not attempted murder or rape, and “only when to refrain from killing the malefactor would

necessarily leave him free to commit his crime and escape.”13

7 Steven P. Aggergaard, Note, Retreat from Reason: How Minnesota's New No-Retreat Rule Confuses the Law and Cries for Alteration--State v. Glowacki, 29 WM. MITCHELL L. REV. 657, 659 (2002).

However, excusable homicide –

that committed by a person “by misfortune, or in his own defence” – was not permissible at

8 Id. 9 RICHARD MAXWELL BROWN, NO DUTY TO RETREAT: VIOLENCE AND VALUES IN AMERICAN HISTORY AND SOCIETY 5 (1991). 10 Beale, supra note 1 at 574. 11 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 176, 178-79 (1769); Beale at 568. 12 Beale, supra note 1 at 572. 13 See id. at 572; BLACKSTONE, at 181-82.

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common law.14 A person committing homicide was still deemed culpable for their action and

the law required a conviction and a forfeit of chattel, unless pardoned by the King.15 A pardon

was granted only after the defendant had retreated “to the wall” and where self-defense was

found to be reasonably necessary.16

As the law developed, pardons for excusable homicide were granted as a matter of course –

issued by the Chancery Clerk and signed in the King’s name – after the accused was indicted and

Justices performed a brief inquiry into the evidence supporting homicide se defendendo.17 The

common law grew to acknowledge that the law affords each man absolute protection of his

home, waiving the duty to retreat and culpability for homicide when one is attacked in their

“castle,” a belief thus known as the Castle Doctrine.18

However, anyone who was feloniously

attacked without provocation could not “stand his ground anywhere,” decline to retreat, and

instead use deadly force to counter the attack, as SYG proponents claimed.

b. A New American Common Law?

The other intellectual tradition that explains the emergence of Stand Your Ground laws is the

“frontiersman myth,” the idea that the unique conditions of America created a new common law

that expressly rejected the English duty to retreat. This rejection had its origins in the experience

of the burgeoning American Republic during the Revolutionary War.19

Self-defense was not originally recognized as a valid defense to homicide at common law.

However, as the American consciousness began to be shaped by expansion into the Midwest and

Southwest, the split in tradition grew as well.20

14 Beale, supra note 1 at 569.

Eastern and Southern states continued the

English tradition. In 1847, Alabama endorsed the duty to retreat, stating that “[t]he common law

of this State, on the subject of homicide is derived from, and the same as, the common law of

15 Id. 16 P. Luevonda Ross, The Transmogrification of Self Defense by National Rifle Association-Inspired Statues: From the Doctrine of Retreat to the Right to Stand Your Ground, 35 S.U. L. Rev 1, 6 (2007-2008); BROWN, at 3-4. 17 Beale supra note 1 at 570-71. 18 Id. at 569. 19 BROWN, supra note 9 at 6. 20 Collins, supra note 6.

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England, and wherever that law requires the person assailed to decline combat, or to retreat,

before he will be excused in taking the life of his adversary, our law requires the same.”21

Tennessee courts injected reasonableness in their analysis of self-defense without explicitly

acknowledging the duty to retreat, acquitting where the defendant had literally retreated to the

wall before acting.22 New Jersey courts held that “[i]n some cases an accused is bound to retreat

. . . If he can retreat with safety[,] he is bound to adopt the course.”23

However, courts in the American frontier diverged, repudiating the English tradition. The

frontier at that time was far from the romanticized notions of a John Wayne film, but it was

chock-full of farmers, ranchers, miners, prostitutes, and criminals. Many of these people left the

relative comforts of the more-developed East Coast to pursue their happiness as homesteaders,

living off the land. A hard-scrabble existence wrought hard-scrabbled men. In Ohio, it was said

that “a true man, who is without fault, is not obliged to fly from an assailant, who . . . maliciously

seeks to take his life or do him enormous bodily harm.”24 In Indiana, the court assessed that “the

tendency of the American mind seems to be very strongly against the enforcement of any rule

which requires a person to flee when assailed.”25

At the turn of the twentieth century, the Supreme Court, interpreting Texas law, addressed the

diverging trends in Brown v. United States.26 Writing for the Court, Justice Oliver Wendell

Holmes acknowledged that the repudiation of the duty to retreat came from a misinterpretation of

the English common law, but that “[t]he law has grown, and even if historical mistakes have

contributed to its growth, it has tended in the direction of rules consistent with human nature.”27

21 Pierson v. State, 12 Ala. 149 (1847).

The common rule that had emerged, according to Justice Holmes, was that “[d]etached reflection

cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not

a condition of immunity that one in that situation should pause to consider whether a reasonable

22 See e.g., Grainger v. State, 1830 WL 934 (Tenn. Mar. 1830). 23 State v. Blair, 2 N.J.L.J. 346, 348-49 (Essex O. & T. 1879). 24 Erwin v. State, 29 Ohio St. 186, 199-200 (1876). 25 Runyan v. State, 57 Ind. 80, 84 (1877). 26 256 U.S. 335, 343 (1921). 27 Brown, 256 U.S. at 343.

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man might not think it possible to fly with safety or to disable his assailant, rather than to kill

him.”28

While seemingly upholding an inherent right to self-defense, and perhaps even the right to stand

one’s ground, Justice Holmes couched the exercise of that right on the reasonable belief that a

person is in immediate danger of death or grievous bodily harm.29

Still, the vagueness and

ambiguity in the Brown decision led to a continued disparate interpretation of the common law

between the states.

c. The Statutory “Wave” of SYG: Rewriting History

“Every generation writes its own history.”

— John Bowman30

Generally, the common law in the states developed around a general duty to retreat and de-

escalate the conflict, except when assaulted in the home.31 Many states codified this

understanding in castle doctrine laws. The common principle was that, outside of the home, a

person assaulted could respond with force that was reasonably proportionate to that received by

the attacker and necessary to dissuade the assault.32 Deadly force could be met with deadly force

only if a reasonable person would have done the same; less than deadly force required a less-

lethal response. Often, this required an attempt to retreat before taking action. Some states

rejected such laws in favor of a more expansive judicial interpretation of the right to self-defense

similar to the later Stand Your Ground laws, if not called that in name.33

28 Id. at 343. 29 Id. 30 Jerry W. Knudson, JEFFERSON AND THE PRESS: CRUCIBLE OF LIBERTY xiii (2006). 31 Elizabeth B. Megale, Making Murder Legal: How Laws Expanding Self-Defense Allow Criminals to "Get Away with Murder" (2010) available at http://works.bepress.com/elizabeth_megale/1/. 32 Id. 33 Id. at 8; see also Judith E. Koons, Gunsmoke and Legal Mirrors: Women Surviving Intimate Battery and Deadly Legal Doctrines, 14 J.L. & POL’Y 617, 629 n.41 (2006) (finding that twenty-two American jurisdictions maintain the duty to retreat; twenty-one jurisdictions impose no duty to retreat before a defendant may resort to deadly force; and eight jurisdictions occupy “middle ground” in which retreat is a factor in determining whether deadly force is justified).

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Proponents of the law-and-order movement demanded a stricter criminal justice system,

especially in relation to violent and property crime, through stiffer criminal penalties for

offenders and a focus on giving the victims “equal rights with the criminal.”34 Alongside longer

terms of imprisonment, mandatory sentencing, and “three strikes” laws, supporters of law-and-

order pointed to cases like Brown to argue that “the common citizen could manage his or her

own protection.”35

The dramatic shift to the current codification of the right to stand one’s ground occurred in 2005

in Florida. Prior to 2005, Florida’s duty to retreat was founded upon a combination of statutory

and common law.36 In 2003, Florida courts declined to extend the rights recognized by the castle

doctrine to visitors or temporary guests so as to prevent the creation of “innumerable castles”

that would “encourage the use of deadly force” in places outside one’s own home.37 Thus, the

doctrine in 2004 was largely settled and comported with the general recognition in most states of

the duty to retreat except if attacked in one’s home, business, or automobile.38

On October 1, 2005, Florida’s duty to retreat was abrogated by the passage of the “Stand Your

Ground” law.39 The bill was the product of the combined efforts of a former President of – and

current lobbyist for – the National Rifle Association (“NRA”), Marion P. Hammer; Florida State

Senator Durrell Peadon; and Dennis Baxley, a member of the Florida House of Representatives.

The NRA sought to manipulate sentiments of vigilantism, claiming that the duty to retreat

created an unfair burden on victims40 and that the SYG law was intended to allow ordinary

citizens to allow “meet force with force.”41

34 Steven D. Walker, History of the Victims’ Movement in the United States, available at http://aabss.org/Perspectives2000/f04Walker.jmm.html.

The bill unanimously passed the Florida Senate and

35 Id. 36Michael Jaffe, Up in Arms Over Florida’s New “Stand Your Ground” Law, 30 NOVA L. REV. 155, 175-76 (2005); Weiand v. State, 732 So. 2d 1044, 1058 (Fla. 1999) (“There is a limited duty to retreat within the residence to the extent reasonably possible”); see also State v. Bobbitt, 415 So. 2d 724 (Fla. 1892); Frasier v. State, 681 So. 2d 824, 825 (Fla. 2d Dist. Ct. App. 1996); Baker v. State, 506 So. 2d 1056, 1059 (Fla 2d. Dist. Ct. App. 1987). 37 State v. James, 867 So. 2d 414, 415-17 (Fla. 3d Dist. Ct. App. 2003). 38 See Koons, supra note 33. 39 S.B. 436, 2005 Sess. (Fla. 2005), codified at FLA. STAT. § 776.013. 40 See Robert Tanner, States Adopt Deadly Force Self-Defense Law, BRADENTON HERALD, May 25, 2006, at 4, available at 2006 WLNR 8950215. 41 Jaffe, at 177; Senate Staff Analysis and Economic Impact Statement, *3, Florida Staff Analysis, S.B. 436, 2/25/2005.

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was pushed through the Florida House, where it met little resistance.42 Opponents to the bill’s

expansive protections were able to amend the original bill only slightly. At the behest of law

enforcement officials concerned over its potential effects on immunity for police officers and

prosecutors, the law’s impositions of liability for legal costs incurred for criminal prosecutions

was removed.43

The bill passed with a strong majority in the Florida House.

The statute modified the common law in five significant ways.44 It revised Florida statute

section 776.012 - “Use of Force in Defense of Person” – by removing the duty to retreat.45 The

statute created a presumption of “reasonable fear of imminent peril of death or great bodily

harm,” expanded the protection of the “castle doctrine” to guests of a homeowner and other

temporary residences, provided immunity from criminal prosecution and civil action,46 and

established a general prohibition against arresting an individual for the use of such force without

probable cause that the use of force was unlawful.47

After success in Florida, the American Legislative Council’s (“ALEC”) Civil Justice Task Force

adopted S.B. 436 as the basis for its model legislation for gun control laws.48 The combined

efforts of interest groups like ALEC, the NRA, and gun-sympathetic state legislators led to early

and easy successes in passing the law in both Alabama and South Carolina.49 Over the course of

the next seven years, other states passed copycat laws that adopted the Florida/ALEC model with

little or no modification. SYG laws were “designed to take the scales of justice that were out of

balance and tilted towards the criminal and give them back to citizens to protect themselves,”

said one proponent, Alabama Attorney General Troy King.50

42 Daniel Michael, Florida's Protection of Persons Bill, 43 HARV. J. LEGIS. 199 (2006).

Though self-defense claims

43 Among the law enforcement officials lobbying against the changes proposed in S.B. 436 were the National District Attorneys Association, the Florida Prosecuting Attorneys Association, and police chiefs from cities including Miami and St. Petersburg. 44 Senate Staff Analysis and Economic Impact Statement, *3-5 , Florida Staff Analysis, S.B. 436, 2/25/2005. 45 FLA. STAT. § 776.012. 46 FLA. STAT. § 776.032. 47 FLA. STAT. § 776.032. 48Brendan Fischer, ALEC Ratified the NRA-Conceived Law That May Protect Trayvon Martin's Killer, PR WATCH, March 21, 2012 available at http://www.prwatch.org/news/2012/03/11366/alec-and-nra-behind-law-may-protect-trayvon-martins-killer. 49 Ross, supra note 16, at 19. 50 Jason Morton, Critics Say Defense Law Will Create Vigilantes: Supporters Say Law Gives Residents Power to Protect Themselves, TUSCALOOSA NEWS, Aug. 13, 2006, http://tuscaloosanews.com/apps/pbcs.dll/article?AID=/20060813/NEWS/608130380/1007.

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nearly tripled in the wake of SYG’s passage, it was not until the death of Trayvon Martin that

Stand Your Ground garnered national scrutiny and criticism.51

III. Stand Your Ground and Trayvon Martin

a. Factual Background

Trayvon Martin's tragic shooting has been the topic of national discussion. Though the case is

ongoing, certain key facts are clear at this writing. Martin's killer, George Zimmerman, was

carrying a loaded and concealed semi-automatic pistol as he performed his neighborhood watch

duties on February 26, 2012. Zimmerman called police dispatch from his vehicle to report a

“suspicious” person in a suburban gated community named Retreat View.52

That person was

Trayvon Martin.

Zimmerman claimed that Martin looked like he was on drugs.53 After a brief discussion about

the location of the incident, he told the dispatcher that Trayvon was “walking around” with “his

hand in his waistband . . . and he’s a black male.”54 Zimmerman told the dispatcher that Trayvon

started running, so Zimmerman decided to get out of the vehicle.55 Zimmerman was told “we

don't need you to do that.”56 He defied this advice and continued to pursue Martin. Trayvon was

on the phone with his girlfriend when he noticed Zimmerman following him.57

She heard him

say “what are you following me for,” then the phone was dropped. An altercation occurred, and

Martin was fatally wounded. It was later revealed that Martin was returning from a convenience

store, where he had purchased a bag of Skittles and a can of iced tea. He was unarmed.

The Trayvon Martin case is one example of the way that racial prejudice can ultimately be

excused by the low bar required by SYG laws, leading African-Americans to be victimized. 51 Deaths Nearly Triple Since “Stand Your Ground” Enacted, CBS MIAMI. (Mar. 20, 2011), http://miami.cbslocal.com/2012/03/20/deaths-nearly-triple-since-stand-your-ground-enacted/. 52 Smith, Anna Marie, Deadly Force and Public Reason (2012), THEORY & EVENT (Forthcoming, 2012). http://ssrn.com/abstract=2072355. 53 Id. at 1. 54 Id. at 2. 55 Id. 56 Id. 57 Parker Wallace, Georgia’s Stand Your Ground Law, GPB NEWS (May 7, 2012), www.gpb.org/news/2012/05/07georgias-stand-your-ground-law.

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Even with substantial evidence showing that Zimmerman was the first aggressor, “the police said

they . . . found no evidence to dispute Mr. Zimmerman’s claim of self-defense,” despite the fact

that Zimmerman “brought a firearm to a fistfight.”58

The police documented Zimmerman’s

injuries but released him before interviewing neighbors who witnessed the incident. Police did

not test Zimmerman for alcohol or drugs, nor did they run a criminal background check on him.

Zimmerman, who maintains that he acted in self-defense after he was attacked by Martin, has

now been charged with second-degree murder. However, these charges came weeks after the

shooting, and only after Martin family attorneys, including Benjamin Crump, persuaded the

national media to cover the case, which resulted in much controversy.

b. The Role of Race

In “Deadly Force and Public Reason,” Anna Marie Smith explores role that race plays in

justified self-defense.59 According to Smith, Zimmerman decided that Trayvon Martin did not

belong in a white suburban area so he must be “one of the young black men who, according to

local rumor, were responsible for local break-ins.”60 “The six week delay in procedure is but one

element in a long list of serious failures on the part of the criminal justice system, the Florida

legislature, and, more generally, society as a whole, that contributed to Martin’s death and the

violation of his rights.”61

If Sanford police had performed a full and complete investigation they could not have

determined that Zimmerman was entitled to the presumption of immunity. Smith discusses two

potential explanations for the racially biased conclusion the police came to that evening. First,

society recognizes that different races are entitled to equal protection under an impartial system,

but justice fails to be color blind “because our basic structural institutions, such as the

Constitution, the state and federal legislatures, the police, the public prosecutors, the courts, and

58 Id. at 2; see also “Florida Stand Your Ground Law could complicate Trayvon Martin Teen Shooting Case”, MSNBC, (Mar. 20, 2012), available at http://usnews.nbcnews.com/_news/2012/03/20/10780286-florida-stand-your-ground-law-could-complicate-trayvon-martin-teen-shooting-case?lite. 59 Smith, supra note 52. 60 Id. 61 Id. at 3.

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the prison system, lag behind.”62

Those institutions still view black men as criminals involved in

gang or drug activity. Thus, Sanford police were all-too-willing to believe that Zimmerman was

a white man who was seeking to protect a middle-class white neighborhood from a black man

who must have been up to no good.

A second potential explanation is that Americans split themselves into two distinct groups: white

and non-white.63 As white officers, the police accepted Zimmerman’s explanation of what

happened because they shared his worldview; thus there was no need to question him about what

he said.64

Under either of Smith’s arguments, the tragic death of Trayvon Martin can only be

explained as a consequence of racial prejudice coupled with a poorly drafted law.

Legal analysis has shown that such self-defense arguments can actually mask racial bias. “[S]elf-

defense arguments that may seem to work in a benign, race-neutral manner for white America …

take on a significantly different meaning in the context of black-white interactions.”65 “[R]acial

fears invariably infuse routine judgments in American society about what kinds of acts constitute

a serious danger or what kinds of violent responses should be regarded as reasonable acts of self-

defense.”66 As a result, violent individuals may rely on racial stereotypes about “who commits

crime” in our society, making no distinction between the guilty and innocent before pulling a

fatal trigger and claiming self-defense.67

SYG statutes, when combined with racial biases, create a vigilante atmosphere. A hypersensitive

individual driven by stereotypes is likely to interpret everyday acts as menacing or life-

threatening if made by any member of a stereotyped group he fears. Operating under a

“reasonable belief” that he faces a threat of harm to himself, and a “reasonable belief” that

deadly force is necessary to defend him, a bias-motivated person in a Stand Your Ground state is

free to shoot first and ask questions later. Such vigilantism has the potential to have the greatest

impact on the preservation of life.

62 Id. at 4 (citing Williams). 63 Id. at 6 (citing Williams) 64 Id. 65 http://www.americanprogress.org/issues/2012/03/legal_deadly_force.html/print.html. 66 Id. 67 Id.

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IV. Stand Your Ground and Minority Defendants

SYG laws disparately affect minorities in two significant ways. As described above, SYG laws

potentially allow a defendant to escape criminal conviction based on his or her own prejudices

masked as self-defense. It has been said that “when you make reasonable fear a legal defense,

racism can become a reasonable defense” because reasonable actions are “a matter of opinion

and subject to interpretation.”68 Other scholars have opined that part of the reason the law was

proposed and implemented was due to “a diminished sense of confidence in the criminal justice

system’s ability to protect victims and the perceived discrepancy in the judicial system that

emphasizes the due process rights of defendants over the rights of victims.”69

Yet SYG laws also disparately impact minorities because African-Americans are less likely to be

successful when asserting their right to immunity under the law. The Tampa Bay Times

conducted a study which determined that defendants who were accused of killing black victims

were acquitted 73% of the time, but those accused of killing white victims were only acquitted

59% of the time.70 Surprisingly, SYG laws have shown an increase in deaths among Caucasians,

but no corresponding increase among African Americans.71

The following cases expose how

local law enforcement officers can reflect the biases of the communities they patrol.

///

///

///

68 Wallace, supra note 57; see also Megale, Elizabeth B., Deadly Combinations: How Self-Defense Laws Pairing Immunity with a Presumption of Fear Allow Criminals to ‘Get Away with Murder, 34 AM. J. TRIAL ADVOC. 105, 129. 69 Chandler B. McClellan and Erdal Tekin, Stand Your Ground Laws and Homicides, NATIONAL BUREAU OF ECONOMIC RESEARCH (June, 2012), http://www.nber.org/papers/w18187. (citing Steven Jansen and M. Elaine Nugent-Borakove, Expansions to the Castle Doctrine: Implications for Policy and Practice, NATIONAL DISTRICT ATTORNEYS ASSOCIATION SYMPOSIUM, 2007. 70 Susan Taylor Martin, Kris Hundley, and Connie Humburg, Race plays complex role in Florida’s ‘stand your ground’ law, TAMPA BAY TIMES (July 21, 2012), http://www.tampabay.com/news/publicsafety/races-complex-role/1233152. 71 Chandler B. McClellan, Stand Your Ground Laws and Homicides. NATIONAL BUREAU OF ECONOMIC RESEARCH (August 20, 2012). http://www.nber.org/papers/w18187. Retrieved 8-20-2012

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a. Case Studies

i. Bronson, Florida: Eric Oliver

On June 12, in Bronson, Florida, a woman and her child were almost hit by a reckless driver.72

The child’s father and another man confronted the driver before he drove off. The men later

heard that the driver was at a friend’s house nearby. The two men, and at least three others, went

to the home of Eric Oliver, an eighteen-year-old black male, who was at home with his family

when the mob arrived and demanded to speak with the driver. Bronson is a small town located

only about twenty miles from Rosewood, Florida, the site of an infamous 1923 massacre where

lunch mobs executed scores of African-Americans and burnt the town to the ground.

According to Oliver, the group of men lobbied several threats against Oliver’s mother, who was

confined to a wheelchair. Eric came to his family’s defense and fought back. An incident report

drafted by investigating officers stated that witnesses saw Oliver pick up a rock and hit one of

the men in the head, sending him to the hospital.73

Oliver was subsequently charged with

aggravated assault with a deadly weapon. His bond was initially set at $100,000, but after

grassroots organizers held public demonstrations, the state reduced his bond to $10,000. Finally,

in August of 2012, some six months later, the charges were dropped.

Both Zimmerman and Oliver committed their acts in Florida, in 2012, well after the enactment of

SYG. Zimmerman killed a man; Oliver sent a man to the hospital. So why was Zimmerman

questioned and released, while Oliver was arrested? Could SYG create a perverse incentive to

kill, so there is no one alive to dispute the killer’s account of facts? Unlike George Zimmerman,

Eric Oliver did not initiate the confrontation with the mob of five men. Even though Oliver may

have used a rock as a weapon, he did not bring a firearm to the altercation, as had Zimmerman.

Perhaps because his victims were still alive to dispute his rendition of the facts, Oliver was

arrested and detained after the incident – a fate which Zimmerman escaped. Although justice

may have been served in the end, the time that it took for Oliver to achieve this outcome could be

explained by Smith’s argument about worldview. As white officers, perhaps the police could not

72 “Stand Your Ground or Ground Invaded?”, WCJB-TV, June 22, 2012, http://www.wcjb.com/local-news/2012/06/stand-your-ground-or-ground-invaded. 73 See id.

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accept Oliver’s explanation of events over that of his white accusers. When contrasted with the

death of Trayvon Martin, one can see how the strongest explanation for the differing outcomes

can only be racial prejudice coupled with SYG.

ii. The Case of John McNeil

There are a number of other cases where African-Americans were denied the right to assert

immunity, including McNeil v. Georgia.74 John McNeil hired a contracting company named Epp

Elevations to build a home for his family.75 The company was owned and operated by Brian

Epp and his wife.76 As the work progressed, the McNeils found Epp difficult to work with, and

they ultimately decided to close on the home early because of those difficulties.77 After several

heated confrontations, both parties agreed that work on the home would be completed ten days

after the closing or Epp would lose money for failure to complete the work.78

Epp later returned to the property and threatened McNeil’s fifteen-year-old son, La’Ron, with a

folding utility knife.79 La’Ron called his father and told him about the strange trespasser.80

McNeil recognized the voice over the phone and immediately dialed 911.81 La’Ron testified that

when his father arrived, La’Ron observed Epp go to his truck and stuff something in his

pocket.82 McNeil claimed that Epp had the knife in his hand, but an eyewitness did not report

seeing the knife, and it was ultimately found in Epp’s pocket. The eyewitness observed McNeil

point his gun at Epp and command him to back up.83 Epp continued to come toward McNeil.84

74 284 Ga. 586, 669 S.E.2d 111 (2008).

The evidence established that Epp was less than three feet from McNeil when McNeil fired, and

75 Id. at 587, 669 S.E.2d at 113; Rania Khalek, John McNeil Killed a White Man Who Assaulted Him on His Property[,] But, Unlike George Zimmerman, He’s Serving Life, SALON.COM http://www.salon.com/2012/04/11/when_stand_your_ground_fails/. 76 Id., 669 S.E. 2d at 113. 77 Id. at 589-90, 669 S.E.2d at 114 (Sears, C.J., dissenting). 78 Id., 669 S.E.2d at 114. 79 McNeil, 284 Ga. at 590, 669 S.E.2d at 114. 80 Id., 669 S.E.2d at 114-15. 81 Id., 669 S.E.2d at 115. 82 Id., 669 S.E.2d at 115. 83 Id., 669 S.E.2d at 115. 84 McNeil, 284 Ga. at 587, 669 S.E.2d at 115.

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Epp’s hands were not raised at the time that he was shot.85

McNeil was convicted of second-

degree murder.

The McNeil case is another example of what happens to black defendants when they try to assert

their rights under SYG Laws. McNeil has been called “the black George Zimmerman” because

of similarities between the cases,86 but in reality McNeil’s claim of justified self-defense is far

stronger than the one originally asserted by George Zimmerman. McNeil had no duty to retreat

under the common law because he was defending his family on his own property.87

McNeil thus

had the right to defend himself under the traditional castle doctrine. The most glaring difference

is that Zimmerman was a Hispanic male accused of killing a black male, and John McNeil was a

black male who was convicted for killing a white man in Cobb County, Georgia.

b. Stand Your Ground by the Numbers

Contrary to the claims of law-and-order proponents, statistics suggest that SYG laws are

ineffective, and actually increase crime in poor communities which tend to be disproportionately

African-American. In Florida, during the five years preceding the passage of SYG, the average

number of justifiable homicide deaths was 12.88 The laws caused self-defense claims in Florida

to triple. 89 On a national scale, the number of justifiable homicides has increased from 196 in

2005 to 278 in 2010.90 SYG laws have also created a corresponding increase in the amount of

litigation required of the state particularly in cases involving murder and other violent charges.91

Criminals have arguably been the biggest benefactors of the new laws by creating such a weak

barrier to immunity. SYG laws are raised as a defense to protect gang members engaged in gang

85 Id. at 591, 669 S.E.2d at 115-16. 86 See http://www.theblaze.com/stories/what-if-george-zimmerman-were-black-liberals-think-theyve-found-the-answer-in-georgia/, http://westcobb.patch.com/articles/naacp-wants-murder-case-re-examined-2, 87 Beard v. United States, 158 U.S. 550, 559 (1895). 88 Sen. Chris Smith, Florida Stand Your Ground, SENATORCHRISSMITH.COM (July 21, 2012), http://www.Senatorchrissmith.com/standyourground/impact.htm. 89 "Deaths Nearly Triple Since 'Stand Your Ground' Enacted". CBS MIAMI (March 20, 2012). http://miami.cbslocal.com/2012/03/20/deaths-nearly-triple-since-stand-your-ground-enacted/. 90 McClellan, supra n. 3 at 5. 91 Id.

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violence and drug dealers engaged in drug activity.92 Representative Baxley claimed that the

law does not protect aggressors, but the law is not entirely clear with respect to where

“aggression” begins.93 Although one who makes the first physical contact is typically viewed as

the first aggressor, in Chaplinsky v. New Hampshire,94 the Supreme Court held that fighting

words were aggressive speech that “inflict injury or tend to incite an immediate breach of the

peace.”95

Under this definition, was Trayvon Martin the first aggressor when he asked “what are

you following me for?” Or, as is far more likely, was Zimmerman the first aggressor because he

was the first to introduce deadly force to the confrontation, deciding to disobey the instructions

of the local police and take the law into his own hand? Even if Trayvon defended himself with

his fists, was it not Zimmerman who brought a firearm to a fistfight?

This illustrates the lack of uniformity apparent in the enforcement of Stand Your Ground Laws.

Law enforcement officers did not find the case against George Zimmerman convincing, but they

have found sufficient cause to hold John McNeil. Stand Your Ground laws call for the opposite

result in each case. George Zimmerman did not have a lawful right to pursue Trayvon Martin in

his neighborhood after emergency personnel expressly instructed Zimmerman that they did not

need him to do that. Trayvon Martin was in Retreat View lawfully as a guest as a neighbor.

McNeil had a lawful right to be on his property, but Brian Epps was a trespasser who threatened

his family.

V. Model Legislation

The crime statistics associated with the Stand Your Ground laws are cause for concern. Gang

violence presents a great risk to minority communities; SYG laws could make the situation

worse. A sixteen-year study of Los Angeles County determined that 93% of the 5,541 gang

92 Lizette Alvarez, A Florida Law Gets Scrtiny After a Teenager’s Killing, THE NEW YORK TIMES (March 20,2012). 93 http://www.politifact.com/florida/statements/2012/mar/23/dennis-baxley/crime-rates-florida-have-dropped-stand-your-ground/; Klein at 42-43 (citing United States v. Slocum, 486 F.Supp.2d 1104, 1108-09 (C.D. Cal. 2007). 94 315 U.S. 568 (1942). 95 Richard Klein, Race and the Doctrine of Self Defense: The Role of Race in Determining the Proper Use of Force to Protect Oneself, 30 J. OR RACE GENDER AND ETHNICITY 43.

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related homicide victims were African-American or Hispanic.96

If SYG laws continue to be

promulgated in state legislatures, gang members could potentially engage in violence with a

decreased likelihood of arrest as long as they are willing to claim that the rival gang initiated the

conflict. Essentially every gang conflict boils down to standing one’s ground.

Because SYG law so strongly tilts in favor of vigilantes, the best way to improve the current

state of the law would be to remove the immunity from arrest and the presumption that

reasonable fear existed.97 These factors thrust law enforcement officers into the role of the fact-

finder—determining the reasonableness of the defendant’s actions. When this happens, the

public runs the risk of individual officers being swayed by their own biases, as it has been argued

happened on the night when George Zimmerman was arrested. But removing these factors

would not eliminate the ability to claim self-defense. There are a number of states with broad

self-defense laws that still require that law enforcement assess the reasonableness of the

defendant’s actions.98 Succinctly stated, the “[SYG] statute is flawed because it places a greater

power on the right to possess and use a gun than it does on the most fundamental right of all: life

itself.”99

We have chosen the Model Penal Code (“MPC”) as a baseline for our model legislation because

it is based on the common law, which we have argue was erroneously departed from by

American frontier courts. We have noted the concern of certain segments of society that wish to

move away from the English tradition of retreating to the wall, and instead want to ensure that

one who is lawfully at a location has the right to defend one’s position and possessions.

However, we also believe that there is an important balance that must be struck between

preserving human life and protecting one’s dignity and home. With that said, we have adapted

provisions from the MPC and other pieces of legislation to reflect a model legislation that we

believe protects life, without disregarding dignity and protection of property.

96 Brenda Maceo, Rise in Gang Violence, USC NEWS (October 5, 1995) available at http://www.usc.edu/uscnews/stories/1376.html. 97 Megale, supra note 68 at 111. 98 Id. at 113. 99 Id. at 115.

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The following model legislation is structured so that the default rules are those which we found

most favorable, while the alternative bracketed language are less favorable, yet acceptable, for

reasons enumerated in the accompanying explanatory notes.

§ 1. Justification an Affirmative Defense; Civil Remedies Unaffected.

(1) In any prosecution based on conduct that is justifiable under this Article, justification is an

affirmative defense.

(2) The fact that conduct is justifiable under this Article does not abolish or impair any remedy

for such conduct that is available in any civil action.

(3) Any civil actions may not arise until after criminal proceedings have concluded. If the actor

is found not-guilty at the end of criminal proceedings then no civil suit may be brought against

the actor.

EXPLANATORY NOTE

§ 1(1)-(2) comes directly from the MPC and directly contradicts the intent of SYG laws--the

ability to use deadly-force without fear of criminal or civil repercussions. This lowers self-

defense from a complete bar to prosecution to an affirmative defense, allowing investigators to

collect evidence and conduct a complete and thorough investigation. Prosecutors will then be

able to fulfill their duties and decide if charges should be brought. If charges are brought, the

courts will be able to fulfill their function as fact finders.

We added subsection (3) civil immunity, in the case of a not-guilty verdict at the end of criminal

proceedings, because if the actor's conduct is considered lawful we do not want to encourage

additional lawsuits.

§ 2. Use of Force in Self-Protection.

(1) Use of Force Justifiable for Protection of the Person. A person is justified in using

physical force, upon another person in order to defend himself or herself or a third person from

what he or she reasonably believes to be the use or imminent use of unlawful physical force by

that other person. In using physical force in self-defense, the actor may use only as much force as

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he reasonably believes is needed to stop or prevent the “interference.” [and he or she may use a

degree of force which he or she reasonably believes to be necessary for the purpose.]

(2) Limitations on Justifying Necessity for Use of Force.

(a) The use of force is not justifiable under this Section:

(i) against a person who is [behaving lawfully] in a public space.

(ii) to resist an arrest that the actor knows is being made by a peace officer, although the arrest is

unlawful; or

(ii) to resist force used by the occupier or possessor of property or by another person on his

behalf, where the actor knows that the person using the force is doing so under a claim of right to

protect the property, except that this limitation shall not apply if:

(A) the actor is a public officer acting in the performance of his duties or a person lawfully

assisting him therein or a person making or assisting in a lawful arrest; or

(B) the actor has been unlawfully dispossessed of the property and is making a re-entry or

recaption justified by Section 4; or

(C) the actor believes that such force is necessary to protect himself against death or serious

bodily injury.

(3) Use of Deadly Force.

(a)The use of deadly force is not justifiable under this Section unless the actor believes that such

force is absolutely necessary to protect himself against imminent death, severe bodily injury,

kidnapping or rape [compelled by force or threat]; nor is it justifiable if:

(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force

against himself in the same encounter; or

(ii) the actor knows that he can avoid the necessity of using such force with complete safety by

retreating or by surrendering possession of a thing to a person asserting a claim of right thereto

or by complying with a demand that he abstain from any action that he has no duty to take,

except that:

(A) the actor is not obliged to retreat from his dwelling[, place of work, or car] unless he was the

initial aggressor [or is assailed in his place of work by another person whose place of work the

actor knows it to be]; and

(B) a public officer justified in using force in the performance of his duties or a person justified

in using force in his assistance or a person justified in using force in making an arrest or

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preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest

or prevent such escape because of resistance or threatened resistance by or on behalf of the

person against whom such action is directed.

[(a) The use of deadly force is justifiable if an actor reasonably believes that deadly force is

needed to prevent death or serious injury.]

EXPLANATORY NOTE

Our intent with this section was to limit the use of deadly force, particularly outside of the home,

workplace, or private vehicle. This is accomplished by instituting an objective standard, where

only a reasonable amount of force should be used. This limits deadly force to situations where it

is necessary. Situations where deadly force may be necessary--including inside the home,

workplace, or private vehicle--include, without limitation, death, severe bodily harm or

mutilation, kidnapping or [forcible] rape. The MPC provides a clear list of when deadly force

may be necessary and justified. This is opposed to a vague list of when deadly force IS NOT

justified. We recommend that legislators follow the example of the MPC and enumerate

situations when deadly force is justified, placing the onus on the actor to display why her actions

were just.

Sec. 2(3)(a)(ii)(A) was adapted to reflect the extension of the castle doctrine to the workplace

and the private vehicle.

Also, we recommend as a default rule that an actor is not justified in using physical force when

the victim is in a public place, regardless of if the victim in engaged in lawful actions or not. This

is designed to prevent vigilantism. This encourages people to call the police, if a person is

engaged in unlawful actions.

In the alternate language, we followed Wisconsin’s traditional approach of reasonable belief of

the necessity of deadly force, with no presumptions in favor of the actor. This places the actor’s

actions in the hands of the jury in assessing the reasonableness of those actions.

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§ 3. Use of Force for the Protection of Other Persons.

(1) Subject to the provisions of this Section the use of force upon or toward the person of another

is justifiable to protect a third person when:

(a) the actor would be justified under Section 2 in using such force to protect himself against the

injury he believes to be threatened to the person whom he seeks to protect; and

(b) under the circumstances as a reasonable actor would believe them to be/[the actor believes

them to be], the person whom he seeks to protect would be justified in using such protective

force; and

(c) the actor [reasonably] believes that his intervention is necessary for the protection of such

other person.

(2) Notwithstanding Subsection (1) of this Section:

(a) when the actor would be obliged under Section 3 to retreat, to surrender the possession of a

thing or to comply with a demand before using force in self-protection, he is not obliged to do so

before using force for the protection of another person, unless he knows that he can thereby

secure the complete safety of such other person; and

(b) when the person whom the actor seeks to protect would be obliged under Section 2 to retreat,

to surrender the possession of a thing or to comply with a demand if he knew that he could

obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using

force in his protection if the actor knows that he can obtain complete safety in that way; and

(c) neither the actor nor the person whom he seeks to protect is obliged to retreat when in the

other's dwelling [or place of work] to any greater extent than in his own.

EXPLANATORY NOTE

This section simply applies section 2 to the protection of others.

In Sec. 3(1)(b), the MPC uses a subjective standard, i.e., what the actor believes. A subjective

standard puts a huge burden on investigators and prosecutors to show that a person does not

actually believe, what he says he believed. Because it is extremely hard to argue what someone

believed, we changed the section so that an objective standard is the default rule, while provided

the option to select the subjective standard.

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This portion comes unedited from the MPC. In Sec. 3(2) the actor does not have a duty to retreat,

surrender the possession sought, or comply with demands unless he knows that he can secure the

complete safety of the other person. However, in situations where the other person would have a

duty to retreat, surrender the possession sought, or comply with demands then the actor is

obligated to try to cause the other person to do so if he knows that complete safety can be

achieved in that manner.

§ 4. Use of Force for Protection of Property.

(1) Use of Force Justifiable for Protection of Property. The use of force upon or toward the

person of another is justifiable when the actor believes that such force is immediately necessary:

(a) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or

the unlawful carrying away of tangible, movable property, provided that such land or movable

property is, or is believed by the actor to be, in his possession or in the possession of another

person for whose protection he acts; or

(b) to effect an entry or re-entry upon land or to retake tangible movable property, provided that

the actor believes that he or the person by whose authority he acts or a person from whom he or

such other person derives title was unlawfully dispossessed of such land or movable property and

is entitled to possession, and provided, further, that:

(i) the force is used immediately; or

(ii) the actor believes that the person against whom he uses force has no claim of right to the

possession of the property and, in the case of land, the circumstances, as the actor believes them

to be, are of such urgency that it would be an exceptional hardship to postpone the entry or re-

entry until a court order is obtained.

(2) Meaning of Possession. For the purposes of Subsection (1) of this Section:

(a) a person who has parted with the custody of property to another who refuses to restore it to

him is no longer in possession, unless the property is movable and was and still is located on

land in his possession;

(b) a person who has been dispossessed of land does not regain possession thereof merely by

setting foot thereon;

(c) a person who has a license to use or occupy real property is deemed to be in possession

thereof except against the licensor acting under claim of right.

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(3) Limitations on Justifiable Use of Force.

(a) Request to Desist. The use of force is justifiable under this Section only if the actor first

requests the person against whom such force is used to desist from his interference with the

property, unless the actor believes that:

(i) such request would be useless; or

(ii) it would be dangerous to himself or another person to make the request; or

(iii) substantial harm will be done to the physical condition of the property that is sought to be

protected before the request can effectively be made.

(b) Exclusion of Trespasser. The use of force to prevent or terminate a trespass is not justifiable

under this Section if the actor knows that the exclusion of the trespasser will expose him to

substantial danger of serious bodily injury.

(c) Resistance of Lawful Re-entry or Recaption. The use of force to prevent an entry or re-

entry upon land or the recaption of movable property is not justifiable under this Section,

although the actor believes that such re-entry or recaption is unlawful, if:

(i) the re-entry or recaption is made by or on behalf of a person who was actually dispossessed of

the property; and

(ii) it is otherwise justifiable under Subsection (1)(b) of this Section.

(d) Use of Deadly Force. The use of deadly force is not justifiable under this Section unless the

actor believes that:

[(i) the person against whom the force is used is attempting to dispossess him of his dwelling

otherwise than under a claim of right to its possession; or]

(i) the person against whom the force is used is attempting to commit or consummate arson, and

either:

(A) has employed or threatened deadly force against or in the presence of the actor; or

(B) the use of force other than deadly force to prevent the commission or the consummation of

the crime would expose the actor or another in his presence to substantial danger of serious

bodily injury.

EXPLANATORY NOTE

SYG laws tend to place value in honor and possessions over life. The MPC weakens those

values, and we have reduced them even further with some edits. For example, the MPC version

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follows the Castle doctrine closely. Our default version reduces the castle doctrines to only

situations of arson because it is such a life threatening crime that also puts the lives of neighbors

and firefighters in jeopardy.

VI. Conclusion

Stand Your Ground laws disparately impact African-Americans and other minorities. The laws

adversely affect minority defendants and victims. The statistical data indicates that these laws do

not make communities safer. Though proponents sconce Stand Your Ground laws as a

protection of individual rights, the laws in their current form allow criminals to get away with

murder. These laws should be reformed post-haste, before the blood of the next Trayvon Martin

is on the hands of the American people. To this end, we encourage state legislators to consider

adopting our proposed Model Legislation.