Getting self-defense right

This April witnessed a steady stream of tragic cases involving claims of self-defense.  In Missouri, for example, 84-year-old Missouri homeowner Andrew Lester shot and seriously injured 16-year-old Ralph Yarl after the teenager accidentally stopped at Lester's house.  In Upstate New York, 65-year-old Kevin Monahan killed 20-year-old Kaylin Gillis, who mistakenly drove up to the wrong upstate address.  That same day in Florida, 43-year-old Antonio Caccavale shot at a car carrying two teenage Instacart drivers who mistakenly pulled into his property and were on the phone with a customer trying to find the right address.

These cases, and others like them, understandably generated torrents of reporting.  Unfortunately, legal commentators on all sides of the political divide bungled self-defense basics.  In so doing, they both dangerously misinformed the public and impeded an honest discussion about the role of defensive force and gun control in a modern, pluralistic society.   

Washington Post reporter discussing the Yarl case, for example, wrote that stand-your-ground laws allow defenders to respond with violence, up to and including deadly force, immediately upon "perceiving a threat in a place where they have a right to be." 

The New York Times similarly claimed that U.S. castle doctrine and stand-your-ground provisions afford greater protections to those who act pursuant to "misjudgments and mistakes."  It then doubled down by proclaiming that castle doctrine laws accord individuals in their homes a "legal presumption" that their defensive acts against an intruder are lawful. 

These claims about U.S. self-defense law are bold.  But they are also entirely wrong — wrong not as a matter of moral judgment or public policy preference, but as a matter of basic, undisputable law. 

For starters, simply "perceiving a threat" when you are in a place where you have a right to be is never in and of itself enough to trigger deadly defensive force, neither in Missouri nor in any other state in the Union. 

Nor do either the castle doctrine nor stand-your-ground provisions generate greater leeway for mistakes or, in any other way, produce a pro–defensive force "presumption."

Instead, stand-your-ground laws merely remove any otherwise existing duty-to-retreat state law when the defender could have retreated in complete safety. 

More to the point, the violence-reducing fundamentals of U.S. self-defense law remain in full operation.  Most significantly, the person claiming self-defense must have acted (1) objectively reasonably in his belief, even if mistaken, that (2) defensive force was necessary to thwart the attack.  The reporting notwithstanding, neither stand-your-ground nor castle doctrine provisions impact these foundational requirements.

Of course, the perils of misinforming the public are the same, regardless of which side of the ideological divide births them.

Consider when Fox, on February 9, 2023, while reporting on Arizona rancher George Alan Kelly's killing of a Mexican migrant, without qualification, asserted that "Arizona ... allows residents to shoot trespassers on their property."  

Arizona law permits no such thing.  Nowhere in the U.S., in fact, can a person resort to deadly force to prevent a simple trespass.  This, then, is just another recent example of commentators spreading risky misinformation. 

Even beyond using deadly force against trespassers, in the U.S., deadly force to defend mere property has long been unlawful. 

Although reasonable force is permitted to defend both personal property and dwellings, and deadly force can, in some states, be used to prevent an attacker from committing serious crimes in a dwelling, it is never okay to kill an attacker solely to protect property.  The only counterexample is a strangely narrow one: Texas unusually permits deadly force to stop a burglar, robber, or thief from escaping with the property at nighttime when no other safe means of recovery are available.

And even by international comparison, U.S. self-defense is surprisingly vanilla.  England and Germany reject a categorical requirement that the defender either avoid conflict or retreat once the conflict is imminent.  The same is true for legally, politically, and culturally diverse countries ranging from Argentina, Botswana, Canada, France, and Nigeria to Ghana, Indonesia, Japan, Spain, and Sweden.

Casting U.S. self-defense law as more extreme to appeal to a particular ideological base is perilous.  Telling people they can kill mere trespassers, use deadly force to defend property, and shoot at will when they are in their house because the law will judge any mistake in their favor is indefensible.  Spreading such misinformation puts lives at risk and distorts our public dialogue.  We can and must do better.

Markus Funk, a former federal prosecutor who taught criminal law at institutions including Oxford University (where he earned his Ph.D. in law), the University of Chicago, and Northwestern University, is in private practice with the international law firm Perkins Coie.  He is the author of Rethinking Self-Defense: The "Ancient Right's" Rationale Disentangled (Rowman & Littlefield, 2021).


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