Are Stand Your Ground Laws Racist?

Does South Carolina’s “stand your ground” law encourage racial violence?

Last week, I read an op-ed that attempts to make the case that “stand your ground” and self-defense laws are racially biased and are a legal justification for violence against black people.

That’s ridiculous. So are these statements made in the article:

  • Stand your ground laws “can provide a literal get-out-of-jail pass for those who use them as legal justification for racially charged acts of violence;”
  • They make it “even easier for defendants to get off by shifting the burden of proof to the state;”
  • Parents are concerned that “they or their children risk being gunned down under” stand your ground laws;
  • Stand your ground laws are “used by vigilantes to turn themselves into judge, jury and executioner;”
  • Stand your ground laws protect “whites, harboring overt racism or implicit bias, perceive people of color as suspicious or criminals who must be terminated or, at the very least, apprehended;” and
  • The laws let “those who shoot to kill walk free.”

People have the right to defend themselves, their family, and any other person who is being unlawfully attacked, and that has nothing to do with the race of the attacked or the attacker.

Self-defense law in America is, indeed, rooted in white supremacy and racial violence – not because there is inherent racial bias in the notion of self-defense, but because of the way the laws were used by white supremacists throughout America’s history.

Do we say, then, that we should not be allowed to defend ourselves when attacked? That, if someone points a gun at me and I shoot them first, I should stand trial for murder?

I don’t think so.

Does SC Have a Stand Your Ground Law?

South Carolina’s “stand your ground” law is called the Protection of Person and Property Act.

First, what was the legislature’s stated intent when the law was passed?

  • “[T]o codify the common law Castle Doctrine which recognizes that a person’s home is his castle and to extend the doctrine to include an occupied vehicle and the person’s place of business;”
  • “That it is proper for law-abiding citizens to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others;”
  • “That persons residing in or visiting this State have a right to expect to remain unmolested and safe within their homes, businesses, and vehicles;” and
  • “That no person or victim of crime should be required to surrender his personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack.”

SC’s stand your ground law says that, if you are in a place where you have a right to be and if you are not doing anything illegal, that you can meet force with force, including deadly force, if:

  • You reasonably believe that it is necessary to prevent death or great bodily injury to yourself;
  • You reasonably believe that it is necessary to prevent death or great bodily injury to another person; or
  • To prevent a violent crime.

If you are defending yourself or another and it is necessary to prevent death or great bodily injury, you should not be arrested, charged with murder, forced to spend thousands of dollars on attorneys, and forced to stand trial with the threat of lifetime imprisonment hanging over your head.

That’s reasonable. And necessary, because police and prosecutors tend to err on the side of charging people with murder when there is a killing – when you’re a hammer, everything looks like a nail…

What is the Castle Doctrine?

The Protection of Persons and Property Act codifies the Castle Doctrine but extends its protection to any place that you have a right to be.

The Castle Doctrine originated in England. Your home is your castle, and, if you are attacked in your home, there is no duty to retreat from your last place of refuge. That rationale should apply to anyplace you have a right to be, and that is what “stand your ground” laws accomplish.

What are the Elements of Self Defense in SC?

The Protection of Persons and Property Act also codifies the law of self-defense – traditionally, the elements of self-defense were in line with stand your ground laws:

  • You were “without fault in bringing on the difficulty” – if you caused the problem, you can’t claim self-defense later;
  • You reasonably believed you were in imminent danger of death or serious bodily injury – that belief must be reasonable – any reasonable person in your shoes would have felt the same way; and
  • There was no probable means of avoiding the danger – this was the “duty to retreat,” which only applied in some circumstances, and is no longer applicable under the stand your ground law.

Why is There No Duty to Retreat?

To say that I must retreat if someone is attacking me is ludicrous.

Even before SC’s stand your ground law was passed, there were numerous exceptions to the duty to retreat that illustrate why it is ludicrous – running away from an attacker will get you killed:

  • If someone is pointing a gun at you, running is not going to save you.
  • If someone is forcing their way into your car, trying to escape past that person without also defending yourself or taking the time to climb to another door will get you killed.
  • If someone is hitting you, attempting to run and exposing yourself will invite more serious injury or death.
  • If the attacker is bigger or stronger than you are, attempting to run away, again, exposes you to injury or death.

Forcing people to run away when attacked is forcing people to become victims.

First, it’s the opposite of “self-defense.” Second, every person has a natural right to defend themselves – as a matter of principle, you cannot tell people that they must run away when they attacked.

The System May be Racially Biased, but the Laws are Not

Stand your ground laws are not racially motivated or inherently racially biased. As written, they make it clear that every person, regardless of race, has the right to defend themselves against an attacker, regardless of the attacker’s race.

What is racially biased? People are. The criminal justice system in America is. The application of self-defense law by people in the criminal justice system may be racially biased. But, the stand your ground laws are not.

Is the Criminal Justice System in America Racially Biased?

There is no question that the entire criminal justice system in America is racially biased – the statistics are easy enough to find and they are undisputed. The Sentencing Project’s Report to the U.N. on Racial Disparities in the U.S. Criminal Justice System summed it up:

African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences. African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely. As of 2001, one of every three black boys born in that year could expect to go to prison in his lifetime, as could one of every six Latinos—compared to one of every seventeen white boys. Racial and ethnic disparities among women are less substantial than among men but remain prevalent.

But, are the laws racially biased?

In some cases, like federal sentencing guidelines that provide for drastically higher sentences for crack cocaine as opposed to powder cocaine, yes.

In most cases, however, today’s laws are not racially biased – police, prosecutors, judges, and juries who make the decisions to arrest, prosecute, incarcerate, or kill defendants are racially biased…

Are Self-Defense Laws Racially Biased?

There is plenty of well-thought-out and reasonable commentary out there about how self-defense laws have been applied throughout American history in a racially biased way against non-whites.

Just like murder, burglary, rape, and most laws that are otherwise racially neutral – American courts and a government born of white supremacy used those laws to benefit whites and to subjugate non-whites.

They also passed many laws that were blatantly intended to subjugate non-whites.

Stand your ground laws, and other self-defense laws, are not intended to excuse racial violence. They are not blatantly or implicitly racially biased. If the laws are enforced or applied in a way that is biased, that is something else that needs to be addressed.

If a white man attacks a black man, the black man did not provoke the attack, the black man is in a place he has a legal right to be, and he has a reasonable fear of death or great bodily injury, he has the right to defend himself, using lethal force if necessary.

If a white man finds himself in the same situation, he has the exact same right to defend himself, using lethal force if necessary.

If police, prosecutors, judges, or juries apply the law in a racially biased manner, finding a person is entitled to immunity when the factors do not apply, or finding a person is not entitled to immunity when the factors do apply, that’s something else.

Like the decision to arrest, prosecute, or imprison, any law can be applied in a racially biased manner by racially biased people – that doesn’t make the law a bad law.

Let’s Revisit Those Statements from the Op-Ed…

  • Stand your ground laws “can provide a literal get-out-of-jail pass for those who use them as legal justification for racially charged acts of violence;”
    • No, they don’t. They provide a get of jail pass for people who use them to defend themselves, when they have a reasonable fear of death or great bodily injury, when they are not engaged in illegal activity, when they are in a place they have a right to be, and when they had no part in bringing on the difficulty.
  • They make it “even easier for defendants to get off by shifting the burden of proof to the state;”
    • No, they don’t. The state has the burden of proof in every criminal case, and that includes proving that it was not self-defense. Proving that you are not guilty – proving a negative – is unfair and unconstitutional.
  • Parents are concerned that “they or their children risk being gunned down under” stand your ground laws;
    • This is ridiculous. I understand and agree that parents are concerned about racial bias from random people on the street and even law enforcement officers. But, the stand your ground laws only apply when a person is attacked, they didn’t provoke the attack, and they are in a place where they have a right to be – if parents are afraid their child will be killed by someone their child is attacking without provocation…
  • Stand your ground laws are “used by vigilantes to turn themselves into judge, jury and executioner;”
    • Really? If a “vigilante” approaches someone they think is a criminal and attacks them, the stand your ground law allows the “suspected criminal” to defend themselves, using lethal force if necessary. Unless the “suspected criminal” is committing a violent felony or assaulting someone unprovoked, the stand your ground law protects them.
  • Stand your ground laws protect “whites, harboring overt racism or implicit bias, perceive people of color as suspicious or criminals who must be terminated or, at the very least, apprehended;”
    • Stand your ground laws protect every person who is attacked without provocation. They do not protect violent white supremacists who are stalking and attacking black people – they do protect the black person who has the right to defend themselves.
  • The laws let “those who shoot to kill walk free.”       
    • Yes. When a person shoots to kill in self-defense, and all the requirements of the stand your ground are met, they absolutely should walk free and not be subject to arrest or prosecution.

If the stand your ground law is used in racially biased manner, and if a person is given immunity when they do not meet all the requirements of the law, that’s a problem with the people who are making the decision, whether it is law enforcement, prosecutors, judges, or jurors, but it’s not a problem with the law itself.

What’s the Answer?

You can point to specific cases and say, “that decision as racially biased.” It may be true, depending on the facts of the case.

You cannot, however, reasonably point to the stand your ground law and say, “that decision was racially biased, therefore we should not have self-defense laws.” That makes no sense.

The answer is that we work to educate people about racial bias in the justice system. We look for racially biased decisions and we call them out when we see them. We root out laws and appellate decisions that are based in racial bias, and we get rid of them or replace them with racially neutral laws.

But, if you attack me or my family in my home, car, or anywhere that I have a right to be, I will defend myself and my family, with deadly force when necessary. I don’t care what color your skin is. I should not be subject to a murder prosecution, nor should any person, for protecting myself and my family.

Criminal Defense Lawyer in Columbia, Lexington, and Myrtle Beach, SC

Lacey Thompson limits her practice to SC criminal defense cases in Horry, Richland, and Lexington counties. If you are charged with a crime in SC, call the Thompson Defense Firm now at 843-444-6122 or email us through our website to talk with a defense attorney today.

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