Are "Stand Your Ground" laws unconstitutional?

Nicholas Johnson in All Voices, April 20, 2012

Media Source

In Atlanta, Ga., a Baptist minister is suing the governor and the attorney general challenging the state’s 2006 “Stand Your Ground" law that allows individuals to use deadly force outside their home if they feel threatened.

Similarly, the law passed in Florida in 2005 eliminated the English Law concept of “'duty to retreat” from a situation that is dangerous outside your home." In the years since Florida enacted Stand Your Ground, so-called “justifiable homicides” in the state have tripled, according to data from the FBI and Florida law enforcement officials, the Washington Post reports.

Before the law’s passage, there was an average of 12 justifiable killings per year. Since Stand Your Ground passed, the average has grown to 36. To date, 32 states have passed similar laws boosted by the National Rifle Association and the conservative corporate backed American Legislative Exchange Council (ALEC). Since the shooting of Trayvon Martin, the law’s constitutionality is being questioned. The argument is that one has the right to defend one’s self in the face of imminent danger and is treated as constitutional in nature.

Trayvon’s killer, George Zimmerman, was charged with second-degree murder and is currently out on $150,000 dollars bail awaiting trial.

Meanwhile in Georgia, the Rev. Markel Hutchins, 32, a minister and civil rights leader, claims Georgia's law, enacted in 2006, violates constitutional rights of due process and equal protection, and civil rights laws.

Under Georgia's law (O.C.G.A. 16-3-23.1), a person is justified in using force intended or likely to cause death or great bodily harm to prevent the commission of a "forcible felony" if "he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force," according to Hutchins' complaint.

Hutchins claims the law is unconstitutionally vague and wants its enforcement prohibited by a legal injunction.

At issue is what constitutes a "reasonable fear," Hutchins says in the complaint.
"It is without question that the determination of the reasonableness of one's fear in the invocation of self-defense will differ in application if the decedent is an unarmed elderly white woman as opposed to an unarmed young black man," the complaint states. "Thus the reasonable person standard with regards to the use of self-defense when an individual is standing one's ground offers different levels of protection to individuals based upon their race."

Before Georgia's law took effect as part of S.B. 396, critics "argued that law-abiding citizens already enjoyed sufficient protection under Georgia law and the Act will 'do nothing except make it more difficult to prosecute the overly trigger-happy among us.' For these reasons, no African-American senator voted in favor of SB 396 which created the Act," Hutchins says in the complaint.

"Critics further voice concerns regarding the 'reasonable person' standard. They feared that the Act's reliance on a victim's reasonable perception would lead to the unnecessary use of lethal force, especially when the alleged aggressor is of a different race, and that jurors will be sympathetic to that perception where they share a common race with the victim.

"SB 396 never defined what a reasonable perception constituted," the complaint states.

It continues: "By not defining what actions create a reasonable perception justifying the use of deadly force, the Act, potentially deprives all Georgians' of the right to life without due process of law in contravention of the 14th Amendment of the United States Constitution as the law is so vague as to not apprise a person of common intelligence of the bounds of lawful behavior.

"Further, as the act does not define what evidence can be used to establish a person's reasonable fear it creates the risk of arbitrary enforcement in violation of the equal protection clause of the 14th Amendment of the United States Constitution.
"Because the Act infringes upon the fundamental due process right of life it must be reviewed under strict scrutiny. United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82L. Ed. 1234 (1938)."

The complaint adds: "(B)y statutorily codifying the right to stand one's ground outside of an individual's residence or place of business, the Act created a new right for individuals to use deadly force based upon their 'reasonable fear' that a violent encounter may happen without first attempting to withdraw and without regard to the proportionality of the response. This new right allows individuals to respond to what they believe to be a threat with deadly force even where no deadly threat existed without the need to first attempt to escape the threat.

"By creating a right to kill based upon an individual's reasonable fear without defining what circumstances would demonstrate 'reasonable' the Act will potentially deprives individuals of their lives without due process of law.

"As 'reasonable' is not defined there is no way for an individual to comport his action within the confines of the law and as to prevent being slayed due to the reasonable fear of another. ...

"Additionally, courts around the country have accepted that the race of an individual is relevant evidence in determining the reasonableness of a claim of self-defense. See People v. Goetz, 68 N.Y.2d 96 (2001)."


“Justifiable use of deadly force” is another way of talking about a right of self-defense. This right is curious indeed: it is not mentioned in the Constitution, yet it has ancient roots in legal theory and history, everyone probably assumes they have such a right, and perhaps half the states make it a specific right under their own state constitutions.

The Supreme Court has ruled on self defense in an individual’s home. Their decision in 2008 in District of Columbia v. Heller, recognizing a personal right to have a gun under the Second Amendment, said that such a weapon could be used “for traditionally lawful purposes, such as self-defense within the home.”

Fordham law professor Nicholas J. Johnson declared confidently in a 2009 law review article: “While the stickler might quibble about the fashion in which it has been recognized, the ancient right of self-defense is in the first echelon of fundamental constitutional rights essential to ‘liberty,’ first among the [unenumerated] rights protected by the Ninth Amendment, and at the core of a proper understanding of the Second Amendment.”

If George Zimmerman is charged under Florida law making it a crime to engage in “unnecessary killing to prevent an unlawful act,” which is the law cited by the police in the incident report, his conviction depends on his unauthorized use of deadly force in one or all of these four areas: 1) the shooter having a right to be where the incident occurred; 2) the shooter must have been acting lawfully at the time; 3) must have been attacked; 4) must have had a “reasonable” belief that deadly force was necessary.

As of now, Stand Your Ground laws are a matter of state law only, but could in time provide the means to implement a right nationwide if self-defense were ultimately to emerge as a guaranteed right under the Constitution. Or the use of deadly force under "Stand Your Ground" laws could be declared unconstitutional with test cases like Rev. Hutchins challenge in Georgia.