The American Bar Association (ABA) has come out with a startling, indeed groundbreaking white paper: American Bar Association National Task Force on Stand Your Ground Laws Preliminary Report and Recommendations (which oddly enough is titled “GunReport.pdf” on their website). This report is startling for displaying just how ignorant and uninformed a ostensibly select group of lawyers can be. It also breaks new ground in attempting to re-cast crime victims as criminals for choosing to fight back while painting their would-be assailants as victims. Now I could go into one of my famous multi-thousand word, highly detailed and meticulously annotated dissertations, identifying and eviscerating each logical flaw, unsupported assumption, undulating lie and outright falsification in the report, but I am not going to do that here for two reasons . . .
First, because if you read their:
I. Legal Summary of Stand Your Ground Laws
II. Executive Summary of Findings and Recommendations
You will find out all you need to know about the ABA’s (lack of) factuality and complete (non-)objectivity on the issue. Second…well, we’ll just get back to number two in a few.
So, starting with that legal summary:
Self-defense is available in all states as a criminal defense. Self-defense law applies to both non-deadly as well as deadly encounters. Self-defense is a “justification” defense, which means if the self-defense applies, the act is justified and not a crime. In other words . . .
I have a friend who is a lawyer and permit instructor. In discussions with him regarding fighting criminal charges, especially fighting complete and utter bool$hit criminal charges he always asks the same question: “How much justice can you afford?”
In other words, if you are a wealthy white lawyer you can afford to hire another rich white lawyer or two to defend yourself from the consequences of defending yourself. For the middle-class, if they’re willing to re-mortgage their home and empty the kids’ college funds they can hire a mediocre lawyer to try and keep them out of prison. If you’re blue-collar or indigent, fuggedaboutit, you get to take your chances with a public defender. There is a reason I have two lawyers on speed-dial and another two in my contacts. All four are gun-friendly as well as being solid lawyers well-versed in the intricacies of use of force cases.
The ABA report continues with some blather about “reasonableness” and “proportionate force” before slipping in this little prevarication slight falsehood gargantuan, outright lie:
Prior to the enactment of Stand Your Ground laws, most states followed the traditional common law self-defense rule, which imposed a duty to retreat before using force in self-defense, if safe retreat was available.
Really? The duty to retreat (DtR) is “the traditional common law self-defense rule”? Not according to the United States Supreme Court it ain’t. Way back in 1895, in the case of Beard v. United States, 158 U.S. 550 (1895), SCOTUS stated:
A man assailed on his own grounds, without provocation, by a person armed with a deadly weapon and apparently seeking his life is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control …
And this wash’t something they just made up on the spot. Beard cites a number of precedents, going back before there even was a United States of America. SCOTUS cited Sir Michael Foster of the King’s Bench (effectively Great Britain’s Supreme Court) who, in 1762 had published “influential treatise[s] on the criminal law of England” in which he stated:
“In the case of justifiable self-defense, the injured party may repel force with force in defense of his person, habitation, or property … In these cases he is not obliged to retreat, but may pursue his adversary till he findeth himself out of danger, and if, in a conflict between them, he happeneth to kill, such killing is justifiable.”
SCOTUS cited several other sources from the early 1800s on, all of which found that when attacked in public, or anyplace he has the right to be, a law-abiding citizen does not need to retreat and may freely use force, up to and including deadly force, in defense of himself and others. So contrary to what the learned lawyers of the ABA claim, it’s actually stand your ground (SYG) which is the “traditional common law self-defense rule,” not DtR.
Just one more example of how screwed up this report is; if we go to the Executive Summary, the second sentence states:
Much of the recent media attention surrounding Stand Your Ground laws is due to the nationally publicized fatal shooting of the Florida teenager, Trayvon Martin, and the subsequent prosecution and acquittal of George Zimmerman.
As any TTAG reader could have told the “researchers” on the ABA’s panel, neither George Zimmerman nor his lawyers ever raised SYG as a defense. When someone is sitting on your chest pounding your head against the sidewalk “MMA-style,” the question of retreat is moot.
Now that ABA’s blown its own credibility on the matter, let’s get to the second reason to impugn their report: none of their objections matter.
Even if every single claim the ABA makes were true, if passage of SYG makes homicide rates sextuple, if “white Hispanics” are gunning down black teens with impunity every day of the week and twice on Sundays, if puppies and kittens are being burned at the stake in town squares across the country as a direct result of SYG, none of that changes the fact that the presumption of innocence is an absolute cornerstone of our legal system. And stand your ground laws restore the presumption of innocence to those who have used deadly force in self-defense.
Many people are familiar with Justice Holmes’ statement that “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” Most people, however, aren’t aware that Justice Holmes was actually articulating the stand your ground defense:
Detached 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 man might not think it possible to fly with safety or to disable his assailant, rather than to kill him. [emphasis added]
I think I’ll take Justice Holmes’ reasoning over the ABA’s irrational hoplophobia any day of the week.
Author’s Note: This was one of the toughest pieces I have ever done, because the ABA’s report is just so chock-a-block with lies, distortions and ad hominem attacks against peaceful, law-abiding gun carriers. Practically every second sentence had some “fact” that just begged for exposure and ridicule. I had to throw everything out and start again at least three times because the fact of the matter is reason number two is absolutely the most important aspect of SYG laws, and it is so easy to get side-tracked and forget the simple fundamental fact: SYG laws restore the presumption of innocence to law-abiding citizens. Something that’s apparently abhorrent to the solons of the ABA.