A National Stand Your Ground Law Would Protect Against Prosecutorial Overreach

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Rep. Matt Gaetz
Rep. Matt Gaetz, R-Fla. (Rod Lamkey/Pool via AP)

By Lee Williams

There are few laws more misunderstood than “Stand Your Ground” – especially Florida’s current version. Stand Your Ground laws have become an anti-gun fundraising issue. They’ve tried to make them synonymous with the 2012 death of Trayvon Martin – even though George Zimmerman never invoked the statute. To be clear, despite mainstream media accounts to the contrary, Zimmerman’s was never a Stand Your Ground case.

The gun-ban industry and their adherents in the media have tried to demonize the statute as a “shoot first,” “make my day,” or “license to kill” law. As with most everything they write about the Second Amendment, these assertions are pure fiction and nothing more than politically motivated fake news.

Now, two Florida Republican Congressmen, Matt Gaetz and Greg Steube, along with five other Republican representatives, have introduced the National “Stand Your Ground Act” of 2021.

The national bill, like the Stand Your Ground laws already on the books in more than 35 states, are actually pretty simple and designed to safeguard what the framers had in mind when they wrote the Second Amendment. They prohibit prosecutorial overreach and thus safeguard citizens.

“Like Kyle Rittenhouse, every American has the right to defend their life from an attacker. If someone tries to kill you, you should have the right to return fire and preserve your life. Let’s reaffirm in law what exists in our Constitution and in the hearts of our fellow Americans. Abolish the legal duty of retreat everywhere,” Congressman Gaetz said in a press release Monday.

The spirit of the law

The main component of any Stand Your Ground law is that it removes a potential victim’s “duty to retreat.” In other words, a citizen is not required to run away before they can use deadly force in response to a threat of deadly force. From a real-world tactical perspective, this is incredibly important – the difference between life and death.

Think of it this way: You and your spouse are accosted in a dark parking lot by an assailant armed with a handgun. In states without a Stand Your Ground law, legally, you and your spouse would both have to somehow run away and pray you’re not shot in the back.

A Stand Your Ground law removes this deadly “duty to retreat.” It allows you to immediately meet the threat of deadly force with deadly force. It allows you to…stand your ground.

“It is a defensive law not an offensive law,” said Florida attorney Lisa Chittaro, a former prosecutor now in private practice.

“Without the Stand Your Ground law, you would be required to retreat, and forced to consider your life or your liberty, in the heat of the moment when you’re in extreme danger,” she said. “Our constitution was put in place to limit government power, not expand it. The Stand Your Ground law restores what was given to us in the constitution, which has been encroached upon over time. It resets us to where we are supposed to be.”

The letter of the law

The National “Stand Your Ground Act” of 2021 bill is very clear.

A person is justified in using, threatening, or attempting to use deadly force if he or she reasonably believe that using, threatening, or attempting to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses, threatens, or attempts to use deadly force in accordance with this paragraph does not have a duty to retreat and has the right to stand your ground if the person using, threatening, or attempts to use the deadly force is not engaged in a criminal activity and is in a place where he or she have a right to be.

The bill clearly defines a “forcible felony.”

The term ‘forcible felony’ includes treason, murder, manslaughter, sexual battery, carjacking, home-invasion robbery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aggravated stalking, aircraft piracy, unlawful throwing, placing, or discharging of a destructive device or bomb, and any other felony which involves the use or threat of physical force or violence against any individual.

“Stand your ground” is also clearly defined.

The term ‘stand your ground’ means the allowance of an individual to defend himself or herself by any means necessary when his or her life is threatened.

The new federal bill also limits the amount of force a citizen can use, much to the consternation of the anti-gun industry, which has long described the Stand Your Ground as “shoot first, ask questions later” law.

If an assailant uses “unlawful force” – for which a deadly force response would not be allowable, something far less than a forcible felony – the new federal bill prohibits the use of deadly force in response. To be clear, potential victims may respond to force with force, but not with deadly force if it’s not merited. Similarly, the duty to retreat has also been removed.

A person is justified in using. threatening, or attempting to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against an aggressor’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this paragraph does not have a duty to retreat before using or threatening to use such force.

The burden of proof

Most Stand Your Ground laws put the burden of proof on the state, not the potential defendant. In other words, if someone uses deadly force in response to a threat of deadly force, legally, they are innocent until proven guilty. They do not need to prove their innocence.

This presumption of innocence may not sound new or novel, but the anti-gun industry fought it like demons.

In 2017, the Florida legislature put the burden of proof on prosecutors, stating they must prove by “clear and convincing evidence,” that a defendant who claimed immunity under the Stand Your Ground law did not act in self-defense.

In 2018, the Brady Center and Everytown filed a joint amicus brief with the Florida Supreme Court challenging the constitutionality of the Stand Your Ground law’s burden of proof requirement.

Brady and Everytown wanted anyone involved in a defensive gun usage to have to prove their own innocence. The gun-ban groups wanted the courts to assume anyone who used deadly force was guilty, despite the presumption-of-innocence protections in the constitution.

“The Florida legislature overstepped its bounds in an effort to make an ill-conceived law even worse,” Brady staff attorney Josh Scharff said then in a press release.

Ultimately, the gun banners lost that round, but they remain fixated on the law, especially the burden of proof requirement.

The future of the bill

Joe Biden would be more likely to sign a bill banning afternoon naps or chocolate-chip ice cream than a Stand Your Ground bill. And given the current leadership in the House and Senate, the bill will likely never get to his deck.

Still, I laud the Congressmen and Congresswoman for introducing the legislation now, since it will help educate the public about the utility and need for the law. Besides, the Biden-Harris regime won’t last forever, and given recent polling, the next administration will very likely be one that’s far more respectful of our individual rights, personal liberties and the need for national Stand Your Ground legislation.

Violent attacks don’t just happen in free states, which protect their citizens from prosecutorial overreach. You’re more likely to be accosted in New York or California than in Florida, where criminals know very well anyone could be legally armed.

But a lethal response to a deadly threat in New York or California, for which you likely would never be charged in Florida, could result in a life sentence. This disparity needs to end. We are all Americans, after all, and deserving of equal treatment under the law.

Stand Your Ground legislation further codifies our God-given right to self-defense. Certainly, all Americans deserve that, especially those unfortunates living behind the lines in non-free states, like California and New York.

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  1. Virtue signalling in an election year, nothing more.

    Not that I disapprove of the idea but this is going nowhere. But I bet it gets him a lot of TV time and digital ink.

    • Unfortunately, I have to agree.

      Remember when the Repubs controlled both Chambers back in the mid ’90s under Newt Gingrich, and many publicly stated they were carrying mini printed versions of the Constitution in their pockets as reminders of their duty to We The People? Then they did little to advance liberty?

      Or when the Repubs had another opportunity under GWB 43, but instead gave us the DHS, TSA, NDAA, and more?

      Or when Repubs took control of everything again after the 2016 General Election, resulting in not only taking the White House and both Chambers, but ending up with 38 Republican State Governors, the most in our nation’s history? Trump wisely appointed literally hundreds of Judges to the bench, and successfully placed three conservative (let’s see how that goes, but you know what I mean) Justices to SCOTUS? But Congress did practically nothing to swing the pendulum back over toward liberty.

      What we’ve learned over recent years is that the battle lies with the States. True conservative Governors are getting things done to protect liberty within their jurisdictions, and true Leftist traitors are messing things up in their own jurisdictions. But at the Federal level, the circus plays on with no real benefits to anyone.

      • R Leadership has to be on equal levels in the Senate and House. Usually it’s everything but and the results are to be expected.
        Whether the proposal passes or not it is always prudent to have no way out on your side before punching holes in a criminal. Now should you be confronted by an armed criminal in a parking lot and because you cannot outrun a projectile you do the best you can and let the chips fall where they may. In other words…Watch your back.

      • And Haz will do whatever it takes to ‘swing the pendulum back over to liberty’, provided that ‘whatever it takes’ is limited to banging away impotently on his keyboard while hiding out in his home like a scared coward while his wife sobs herself to sleep every night wondering why she ever laid down with such a bitch made loser. Dude even makes her work, despite claiming ‘all debts are paid’. Ditch this 🤡 instantly!

        • If there’s anyone who knows all about impotence, it’s this mentally-ill troll that stalks TTAG.

          How does it feel to have so little hanging between your legs that all women do when they see it is to laugh hysterically?

          Just give up, neither Haz nor I have any interest in having sex with you… 😉

    • A huge plus 1 to John Hume’s comment!

      (I don’t know why: the plus sign–the symbol–is not appearing in my comment so I had to spell out the word.)

    • John Hume, You said it well. They can’t do it when the other side has the majority of votes and WON’T when they have the majority, WHY?

  2. See Brown vs. the United States. Justice Oliver Wendell Holmes said it best in his “Detached reflection” statement.

  3. Would it?
    It’s not like certain urban areas have ignored the law before.
    NJ, NY airports and Massachusetts come to mind.

  4. It is stated within the article that Stand Your Ground is a political football. And, I can’t really get onboard with it. It is commonly used by ignorant redneck types to justify the use of force when force could have, should have, been avoided.

    The REAL PROBLEM is that “duty to retreat” bullshit. No man, no woman, no child, should bear the sole responsibility of running from a fight. When the fight is brought to you, you have zero responsibility to avoid the fight. If your attacker assumes ambient temperature as a result, that is his responsibility, not yours.

    A federal law, or a Supreme Court ruling that you have no duty to retreat would eliminated that nonsense from state, county, and city’s arsenals to attack people who rely on guns.

    IMHO, that is all that is needed, is to strike down any and all duty to retreat laws. All the commentary surrounding Rittenhouse’s trial made it clear that many Americans believe that there is a duty to retreat. Nonsense, nonsense, nonsense. It is ridiculous to pretend that you are required to turn your back on a threat, and pray to whichever warm and fuzzy deity you prefer that the attacker cannot catch you.

    • Simply removing the duty to retreat won’t work.

      If you did just strike all those laws down, the result would be a legal void — which would instantly be filled by the duty-to-retreat judicial precedent they’ve already got. Nothing would change. That’s why it has to be replaced with a law that codifies the proper principle.

  5. The term ‘forcible felony’ includes treason, murder, manslaughter, sexual battery, carjacking, home-invasion robbery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aggravated stalking, aircraft piracy, unlawful throwing, placing, or discharging of a destructive device or bomb, and any other felony which involves the use or threat of physical force or violence against any individual.

    Antifa / BLM “peaceful protesters” and their supporters are going to be VERY unhappy about this.
    (Not to imply that they don’t participate in the other activities that I did not make bold).

  6. SYG (Stand Your Ground) is not the issue. What is needed is self-defense immunity. One should be immune from criminal prosecution and civil liability when justifiably acting in self-defense, with or without SYG.

    Florida had an SYG statute in place; it did not protect Zimmerman – because SYG alone does not confer self-defense immunity; rather, it merely removes the duty to retreat before acting in self-defense. SYG is also now the law of the land in almost every state, last I checked.

    • Yes, exactly. Write laws effectively to exclude self-defense, and eliminate the “affirmative defense” BS.

      • The problem isn’t SYG or self defense law — by and large, every state recognizes the right of self defense, albeit some better than others — it’s that there is zero downside for Soros prosecutors to ignore than law and just play to the crowd.

        What we need is Kyle’s Law to be passed in as many states as possible (not gonna happen nationally as long as the dems hold the WH):


        Make the Soros acolytes have some personal skin in the game, and ignoring the law won’t be any fun any more.

        • I agree with you about consequences for prosecutors, etc., but there absolutely is a problem with self-defense law. The process is the punishment.

          Each criminal law or regulation is introduced because some choice or behavior, A, is harmful and/or wrong, and requires legal consequences. In most cases, other, related choices or behaviors (B and C) are not wrong or harmful, and may even be rights and/or necessities. The right and just way to write a law is to define A in such a way as to specifically and categorically exclude B and C. One simple example is speed-limit laws, which exempt police officers in hot pursuit or lifesaving ambulances, completely excluding these necessary behaviors from the definition of the violation called “speeding”. Even gun laws are well-written in this sense: they do not require soldiers, for instance, to stand trial for the “crime” of having been issued NFA weapons.

          Conversely, most jurisdictions do NOT recognize self defense as a right, but an “affirmative defense” to murder. In other words, a self-defender in their eyes is guilty of the crime of murder, but may be allowed to get away with it (after a ruinous trial, entirely at his expense unless he is a deadbeat) because he was in fear for his life (because of his emotional state, not because the law recognizes that he did the right thing).

  7. “One should be immune from criminal prosecution and civil liability when justifiably acting in self-defense, with or without SYG.”

    We have that in our state for civil liability. If the court says it was self defense you are immune from civil liability (you can’t be sued). Also, for criminal prosecution, here, one is automatically assumed to have been acting justifiably in self-defense so they don’t criminally prosecute unless there is specific evidence saying otherwise so the prosecutors can’t just make something up or think it might not be self-defense or be very liberal with the law like they did in the Rittenhouse case because they need specific evidence that has to basically scream it wasn’t self defense.

    • Indiana is pretty much the same.

      The other aspect that needs to be included is a mandatory, pre-trial hearing in which the state must first overcome the self-defense claim, before proceeding to trial.

  8. No it wouldn’t.

    1st leftist areas would just ignore it as they do with many things already, and 2nd under a leftist admenstruation it will be amended and altered to work against us in any number of ways.

    Now that I have commented on the title maybe I should go read the story 😉

  9. “In states without a Stand Your Ground law, legally, you and your spouse would both have to somehow run away and pray you’re not shot in the back.”

    That’s not accurate. The duty to retreat is always “if able”. I’m fat and asthmatic. While the fat has come and gone several times, the asthma has been a permanent companion. Running away has never been an option for me in my entire 50 years on this planet.

  10. Although well-intentioned in concept, what we really don’t need is yet another Federal law dictating what the states should be doing.

    • Agreed. I fully support the content of this bill. But it’s not within the purview of the federal government under our constitution.

      • Serious question. What if you were on Federal land of some sort. Like a Federal Park. The state might not charge you for SYG, but could the fed. gov. come back and charge you for not retreating?

    • It really helps the prosecutor’s office when you can smear someone and be protected by the court system. And be able to lie and smear someone and they can’t fight back. But that is the all-powerful government in action.

    • You really believe what the media says about Gaetz?

      I haven’t followed that circus, so I don’t know any details…all I know is that the outlets that seem to be driving that story are lying about almost everything that matters.

  11. A national stand your ground law would be great. But the best way to eliminate prosecutorial overreach or prosecutorial corruption. Would be to remove the shield protections given to prosecutors. Because the courts have determined that prosecutors are shielded from lawsuits, when they lie under oath. Or when the prosecutors hide evidence and violate the constitutional rights of the accused.

    Most people don’t know it but prosecutors are shielded just like the police are shielded. And as everyone was able to see, the prosecutor in the Kyle Rittenhouse case broke the law and violated the civil rights of Kyle Rittenhouse.

    A credible threat of the loss of a law license. Or the possibility of heavy fines and jail time, are really the only way, to keep prosecutors in check.

  12. Another big step would be to get rid of the IL FOID card and anything similar to it in other states.

    Constitutional Carry would be another one.

  13. Just a question. “The term ‘forcible felony’ includes treason,…” If treason is a ‘forcible felony’ could that apply to half of congress when thy break their Oath to Office and try to pass laws in direct violation to the First, Second and Fourth Amendments?

    Just saying, I can’t see this passing.

  14. This is NOT a federal level issue as a standalone issue.

    We HAVE the right to “keep and bear arms”. For any state or other jurisdictioin to require I retreat as a first option, is to infringe upon my right to BEAR arms . It also infringes upon my right to “be secure in my PERSON’. By standing there waiting for Dirtbag Joe to make HIS move, and I cnly respond AFTER he’s done so, plainly infringes upon that right.
    Instead of trying to proactively enact “stand your ground” on a federal level, how’s about simply applying the laws we HAVE to override any instance where some jurisdiction wants to imprisin ME because I was not plainly and carefully trying to escape the gun in my face as a prior condition to applying my own deadly force to save my life? Or how about when the perp is attempting to abduct my Wife or child, with deadly force, must I stand there and watch? No, I’ll shoot first and let the jury sort it out. Let a fewcases rise up through the mire when someone is charged with urder because they did not stand their ground quite long enough to let the other guy soot first. Let the defendants’s counsel apply his other rights that trump the artificially imposed stand your ground.
    Nearly all states provide that an unauthorised person who has broken into an occupied dwelling, or are ATTEMPTING to do so, may be met with lethal force. In other words, I dont have to let him bust through the door and crash into my kitchen before firing. In fact I can justifiably be upstairs, and fire directly down upon his head as he is hammering away at that back door.
    Same prionciple should apply when attacked on the street in public. IF he poses a credible, imminent, threat to life or bodily integrity, he is fair game, armed with a firearm or not. Even a claw hammer is lethal.

  15. Where is the Constitutional power to pass such a law? They could say that Federal courts can’t hear civil cases against someone who used force to defend themselves. They could say SYG applies to Federal Civil Rights prosecutions, violent response against federal employees/law enforcement, etc. There is no power for Congress to say how States shall have defenses to their laws. It needs to be a Constitutional Amendment and applied via the 14A for it to go anywhere.

    • Exactly. This is a state issue. Federal overreach is one of the main reasons we are in the mess we are currently in.

      The Feds are not supposed to have any general police powers over any crime other than treason, piracy, and counterfeiting.

  16. “Think of it this way: You and your spouse are accosted in a dark parking lot by an assailant armed with a handgun. In states without a Stand Your Ground law, legally, you and your spouse would both have to somehow run away and pray you’re not shot in the back.”

    That’s inaccurate and a little over dramatized. Its always “if able” to run away AND escape harm, if you can not do that you have no duty to retreat. If you fear being shot in the back when running away, and the situation is such that its likely your would or COULD be – If after retreating or attempting to retreat, or are not able to retreat AND escape harm, the threat continues or is still present the victim person(s) may respond with force including with firearms.

  17. The Gun Banning movement is NOT an industry it is giving people the absolute right to Free Speech and to express an opinion. Gun manufacturing is an INDUSTRY and pours millions and millions of dollars into supporting the supposed Constitutional Right to Bear Arms to fight the Dreaded BRITISH REDCOATS or them COMMUNIST hoards at the UNITED NATIONS about to invade the USA THe ESTABLISHMENT of the STATE NATIONAL GUARD was origionally meant to cover the provisoin of the Articles in the US Constitution that refer to the right to establish a WELL DISCIPLINED and REGULATED MILITIA IT was not meant to give leave to a bunch of poorly trained make believe heros armed with many varitities of firearms with out a common ammunition, common training, common weaponry and with as much discipline as a pack of Jack Russels after a rat’s arse. It’s the GUN manufacturing Industry that’s creating a problem every bit as damaging as the recreational drugs industry and sooner or later it WILL be called to account. Can America afford to take up to 20,000 and counting, PREVENTABLE casulaties a year through gun crime ? Which is at least ten times that of Battle Casualties for the US Armed Forces in Combat over the last two decades.

    • Except that the gun banning industry is also censoring people on a daily basis.

      The gun banning industry is just the fascists trying to disarm the population. Creates more victims that way.

        • That is not correct. You see Fascists’ are kindred spirits to Socialists (Leftists). Google the name Giovanni Gentile and you will find that he was the Italian Socialist who wrote Mussolini’s Manifesto and was a favorite of Adolph Hitler.

        • “Educate Yourself,” you have been tragically misinformed.

          Fascism is a socialist movement, which means they’re leftists.

          In Europe, where EVERYTHING starts and ends with socialism and there’s nothing like the American conservative/libertarian movement, fascism is their right wing and communism is the left. They’re just two competing flavors of leftist totalitarianism.

          Here in the USA, the only acceptable answer to “which totalitarian flavor” is NO.

  18. For the sake of argument, assume this legislation is actually passed. Then what?

    Does anyone really think a Liberal-minded ADA will not still prosecute a citizen? Anyone who watched the videos knew that Kyle Rittenhouse acted in self-defense yet he was still prosecuted.

    A better legislative act would be to penetrate the veil of statutory immunity. DAs and police need to have skin in the game.

    • Sid, Such a law would be what is known as an “affirmative defense”. This means that the prosecution would have to prove that it was not a “stand you ground” situation.

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