Don’t Stand Your Ground: In Praise of Retreat

Nearly 250 years ago, William Blackstone included in his classic Commentaries on the Laws of England a well-established rule: “[T]o excuse homicide by the plea of self defense, it must appear that the slayer had no other possible means of escaping from his assailant.” Sir Blackstone understood why people should be required to retreat before using deadly force: “the right to defend,” he warned, “may be mistaken as the right to kill.”

The “duty to retreat” is still the rule in England, but not in Florida — or in most of the United States. Thirty-one states say that people attacked on the street have the right to respond with deadly force, even if violence could be avoided. Florida’s now-infamous “Stand Your Ground” law puts it bluntly: A person who is attacked “has the right to stand his or her ground and meet force with force.”

The Trayvon Martin case has set off a firestorm of controversy across the country — over race, guns, and a lot more. Among the most important debates it has jump-started is one over the once relatively obscure question of what the legal standard should be for the right to self-defense. One of the best things that could come from this tragic incident is a rethinking of our uniquely American attachment to the idea that standing up violently is better than retreating peacefully.

Self-defense law is about striking the right balance between society’s interest in letting people protect themselves and not encouraging unnecessary bloodshed. Britain has tilted the scales in favor of avoiding violence, but not entirely. Under the Castle Doctrine, named after the aphorism that “an Englishman’s home is his castle,” citizens have broad rights to defend their homes against intruders. In the streets, however, there is no such right. As one scholar explains, requiring people who get into disputes in public places to walk away “was a powerful means to produce a society of civility.”

In America, the self-defense balance is set less toward civility and more toward robust use of force. Since Trayvon Martin’s shooting, attention has been paid to the role that the American Legislative Exchange Council (ALEC) — a conservative, corporate-backed policy lobbying group — and the National Rifle Association played in getting some thirty states, including Florida, to adopt “Stand Your Ground” statutes. The enactment of these laws has had a real impact. In the five years after the law passed in 2005, the rate of justifiable homicides in Florida tripled.

But there has been less focus on the fact that even before these ALEC-backed laws were enacted, there was considerable support in American law for “stand your ground.” As Richard Brown explained in his book No Duty to Retreat, resistance to the right to retreat was particularly strong in frontier states like Texas. But the eastern legal establishment was almost as opposed. In 1921, in Brown v. United States, the Supreme Court rejected the obligation to retreat. Justice Oliver Wendell Holmes, the author of the decision, later explained: “a man is not born to run away.”

Holmes, our most epigrammatic Supreme Court Justice, got at something profound about the “stand your ground” doctrine. It is not the product of elaborate empirical research or deep philosophical debate. It is, fundamentally, based on a notion of honor: that a man (and presumably a woman, though they seem to invoke it a lot less) should not be required to run away.

That honor-based rationale is particularly American. Maybe because of our Wild West origins — the no-duty-to-retreat doctrine is sometimes called the “Texas rule” — or maybe because we are the world’s only superpower, we are a nation that is uncomfortable with retreat. We live in a culture in which avoiding conflict is considered cowardly, or, at best, humorous. (For example, in the film Love and Death, Diane Keaton asks: “Are you suggesting passive resistance?” Woody Allen replies: “No, I’m suggesting active fleeing.”) Our unofficial national anthem could be Tom Petty’s 1991 hit “I Won’t Back Down”: “I got just one life/in a world that keeps on pushing me around/ but I’ll stand my ground, and I won’t back down.”

That is a sentiment that may sound good blaring from the car radio on a hot summer night, but it is a strange moral basis for a law. The world’s great religions and philosophies talk about turning the other cheek, the Golden Rule, and the notion that whoever saves a life, it is as if he has saved an entire world. It is hard to square these values with a doctrine that says, of the idea of safely backing away to prevent a death: Eh, don’t bother.

The honor-based doctrine of no-retreat is also terrible social policy. Simply put, it leads to a lot of people getting shot when violence could easily be avoided. As former Miami police chief John F. Timoney told the New York Times: “Whether it’s trick-or-treaters or kids playing in the yard of someone who doesn’t want them there or some drunk guy stumbling into the wrong house, you’re encouraging people to possibly use deadly force where it shouldn’t be used.”

It is not just conjecture that these sorts of encounters could happen — they have happened. In Florida alone, the list of violent encounters in which “Stand Your Ground” has been invoked is long, and in many cases disturbing. For example, the Tampa Bay Times reported that a small-time Manatee County drug dealer successfully invoked the “Stand Your Ground” law on two separate occasions to avoid being charged with homicide.

There also seems to be some evidence that “Stand Your Ground” is making Floridians trigger-happy. In 2006, a year after the law was adopted, Jason Rosenbloom got into a disagreement with his ex-police-officer neighbor about the number of garbage bags that could be left out on the curb for pickup. There was some shouting, and then Rosenbloom’s neighbor shot him in the stomach. The men disagreed over the details — the neighbor said Rosenbloom was trying to enter his house; Roosenbloom denies it. But Rosenbloom, whose shooter was not prosecuted, believed he was one of the first victims of the new statute.

Laws are blueprints for the kind of society we want to live in. The “Stand Your Ground” doctrine tells people to not back down, to up the ante, to itch for a fight. It might seem like a romantic vision to some, but if any of us ever finds ourselves facing an armed neighborhood watch volunteer on a dark night — or fighting with a neighbor over garbage — we would all welcome a little more forced retreat.