In the wake of the Mike Brown shooting in Ferguson, Missouri, it is difficult not to reflect on the constant expansions of affirmative defense doctrines that seem to be increasingly lenient. Specifically, self-defense laws and the fleeing felon doctrine demonstrate how the law has steered away from “defending”, and has empowered the attacked to become the aggressor. By removing the duty to retreat, and not creating any sort of alternative action provisions to prevent deadly force, self-defense, in some states, has become a license to kill. The fleeing doctrine, on the other hand, allows trained law enforcement, which are skilled in using defensive methods to apprehend suspects, to use deadly force if the felon resists and flees. Instead of using other techniques to stop and subdue, deadly force is permitted if it is reasonable to believe that the officer is in danger of deadly force or physical injury, or if others are. While justifiable homicides are commonplace in our criminal law system, this shift from trained police to everyday citizens having these rights is concerning. On the one hand, there is a necessity to permit reasonable force to defend against injury/assaults on one’s person. On the other hand, where is the line between reasonable force and vigilante justice? When does that line begin to get disturbingly blurred at the hands of our judicial system? This entry will discuss state self-defense laws, their application in controversial cases, and potential reform efforts.
Traditionally, the law allows the use of deadly force only when one reasonably believes that they are in imminent danger of death or serious bodily harm. As it stands, the defense of self allows for individuals to use the necessary force to protect their person and their life. What is troubling is the constant expansion that states are using to create more lenient self-defense laws. From states that do not require there to be imminent danger of death to states that allow you to murder over property, the boundaries are constantly tested, pushed back, and blurred. This was exhibited in a study that showed the expansion of self-defense laws lead to more homicides by a significant 8%.
This 8% increase should raise eyebrows, as it directly impacts the role of the prosecutor. That is an additional 600 homicides per year across states that have expanded the castle doctrine. Homicides are on the rise because they are “justified” through states permitting the use of unnecessary force. This will increase prosecutorial workloads. For those who are taken to trial, it takes up the court’s time, it is costly, and victims’ families are forced to listen to testimony that indicates deadly force was okay, even though the harm had passed. The prosecutorial role contains a duty to be an administrator of justice. That justice shouldn’t extend to self-proclaimed warriors, using the statutes as a shield to commit murder, but instead it should be used to ensure that self-defense is only allowed when there is a life to defend. These laws are tying the hands of prosecutors who wouldn't be able to bring forth a case where one of these expansions prevented it. So where is the accountability for those that intentionally manipulate the law in order commit these crimes?
In Texas in 2007, Joe Horn chased and shot down burglars after they stole property from his home. At the time he was on the 911-dispatch call and was alerted that there were officers en route. Since he was chasing them, there was also no apparent harm. However, a grand jury refused to indict him. It should be noted that throughout the call, Horn continuously said to the dispatcher that he had a right to defend himself and his property, and as he chased the burglars he stated “I’m going to kill them.” The law protected Horn as he chased down the burglars, and gunned them down.
The “stand your ground” law that Texas modeled its castle doctrine after has long been deemed the vigilante justice doctrine that hands people a gun and a license to kill. By having no duty to retreat, even outside the home, states are empowering the attacked to become the attacker. This concept of allowing pursuance even when the danger has ceased brings us to present day Ferguson, Missouri. Legal experts in the media frenzy surrounding the Mike Brown killing have reported that self defense includes consistent pursuance until deadly force is used. In Tennessee v. Gardner, the Supreme Court ruled on this issue in relation to law enforcement. The Fleeing Felon Rule allows law enforcement to use deadly force to retrieve a felon. This justifiable homicide, which can be conducted while the felons are subdued, seems to deter the entire goal of the doctrine itself. By not requiring some level of retreat or at least avoidance, this doctrine can easily lead to a game of hunter and hunted. It completely contradicts the “reasonable” force expectations.
The modifications to justifiable homicide defenses for both citizens and law enforcement continue to be a rising issue. The attacked are given a license to kill and not a permit to protect. When states permit deadly force to the extent that one can hunt down their initial attacker, burglar, etc., it sends a very inconsistent message to communities. That message conflicts with the initial message of protecting your home, protecting your person, and protecting your community, because it contains no responsibility to retreat or use a lesser force. That same message is being echoed through the application of the fleeing felon doctrine. Even though there must be a reasonable belief that serious injury or death from the hands of the felon may occur, there is still no requirement for an officer to first attempt a lesser level of force for apprehension before deadly force is used. Instead of taking measures to stop the criminal, they are permitted to kill. These steps taken by states are sending a message that it is okay to kill when you have to, but it is also sending a message that says you can kill if you want to. There is no duty to retreat, no duty to use a lower level of force, and therefore no duty to be held accountable.
Staffer, Criminal Law Practitioner
Photo by Mike Licht, via Flickr