The Castle Doctrine, stand-your-ground, duty-to-retreat, and the rule of first aggression, are a few of the elements of the legally, ethically and emotionally complex realm of self-defense law. Self-defense statutes vary very widely from state to state, though often the specific facts of a situation along with the opinion and community standards of jurors, makes a far bigger difference in the legal outcome than does the language of the law on the books. As with all fields of law, there's what the book says, and then there's how it actually works.

Law is a lot like grammar -- it's a living part of the culture which it inhabits. What the grammar books say and how people talk are quite different; what the law books say and how the law is applied can also be quite different. This comes as a surprise to many people who think that the law-is-the-law-period-the-end. The law is more like.... guidelines. With some exceptions (like mandatory sentencing).

Self-defense is the idea that despite the proscriptions of law, ethics, and religion against killing, a person has the right (lawful or ethical authority) to defend him- or herself against an attacker, including with the use of deadly force if necessary. But not all attackers, attack-ees, or attack circumstances are the same.

Duty To Retreat

The starting point of self-defense law is a duty to retreat. The duty to retreat says that if someone attacks me -- anywhere, any time -- I MUST make all effort to remove myself from that situation before I can lawfully use deadly force. Until I am backed into a corner at the end of a blind alley, I can not legally shoot the person assaulting me.

Why would the law apply a duty to retreat? To stop people from looking for trouble and to avoid the standard bar-room murder situation where someone baits another individual then shoots them when they throw a punch. With no duty to retreat, I could stand in the middle of the sidewalk and shout obscenities and epithets at passersby then legally shoot each one who responds by shoving me or taking a (probably well-deserved) swing at my mug.

Worse, with a full duty-to-retreat, if someone invaded my home I'd be obliged to run out the back door into the night in my nightgown rather than shoot them. So the majority of duty-to-retreat laws have modifying factors -- I don't have to retreat if it would put me in danger, like making me run out into a blizzard in bare feet and my April Cornell nighty. Or into oncoming traffic. Or leap off a train.

Castle Doctrine

The Castle Doctrine reflects the adage that a man (PERSON'S) home is his (OR HER) castle, and that you have an absolute right to occupy your own home (mortgage foreclosure schemes aside). At least half the states in the US, and many other countries, have Castle Doctrine laws that say you don't have to retreat in your own home. If someone breaks into my home in the night, I can shoot them. This makes conceptual sense, though I can think of dozens of tragedies where people have shot their own partner or kid who had forgotten their key -- a duty to leave the house rather than shoot might have avoided those instances. Yet at the same time, countless home invasions have been thwarted by the use of the castle doctrine.

The castle doctrine also gets very complicated when dealing with instances of domestic conflict, and with cases where someone leaves their home to get a weapon then returns to their home. A recently widely reported and criticized case in Florida involved a woman leaving the house to get a gun from the garage to come back and shoot her abusive spouse in the midst of an argument with him. In most states, a jury will be instructed that once you leave that house, the Castle Doctrine evaporates; you can't come back in and invoke the Castle Doctrine. Vermont has seen similar cases, where an individual comes home to find people in his house, gets a gun out of his car or barn and comes in to chase out the intruders. You can't use the Castle Doctrine in your defense when you do that.

Stand Your Ground

Stand Your Ground is a concept now made notorious by the Trayvon Martin case, in which an unarmed black teenager on a public sidewalk was shot and killed by George Zimmerman. The concept of a stand your ground law is that you do not have to retreat when attacked in any place which you are lawfully permitted to be. In a duty to retreat state, or even a state with a Castle Doctrine, if I'm attacked in my car, at a restaurant, or in a parking garage, legally I must run, not shoot. If I'm walking to my car in a dark parking garage and someone menaces me, rape kit in hand, I can't legally shoot him (or her). I have to run out, maybe in heels, maybe in a city I'm not familiar with, to avoid the attack. In states with a stand-your-ground law, I can pull out my gun, since I'm lawfully allowed to be there in that parking garage.

In the parking garage scenario, few people would probably argue that I should have to run out into the night, regardless of the statutes on the books. Yet if I shot my assailant and was arrested, a jury in a duty-to-retreat state would be instructed that they must find me guilty if I didn't run; in a stand-your-ground state, the jury would be told that I did not have to run.

But the world usually doesn't hand us this kind of made-for-tv-movie scenario of a helpless high-heeled woman assaulted by a stranger in a dark parking garage. The majority of assaults are a more ongoing, dynamic situation -- hostilities festering in a bar or between social acquaintances who hate each other, or with self-appointed vigilantes following or harassing people they don't want in their neighborhood for whatever reason (race, clothes, ethnicity, profession, religion, or buying the wrong brand of candy).

While the principle is well-intentioned and meant to protect the innocent damsel in distress, how can we stop a stand-your-ground law from descending into the scenario where I can antagonize people at a bar or in the street, and then shoot them when they take umbrage?

First Aggression

The vague notion of first aggressor doesn't necessarily provide the guidance to say when a person surrenders their right to stand their ground. The law usually says 'first aggressor' is the person who swung first -- NOT the person who started the conflict.

Some years ago I represented a young man on charges of attempted murder when he beat the bejesus out of several guys (ayup, several, he was damn good at it) because those guys had been baiting him and his friends all evening as they tried to enjoy a meal in a diner. The beaten-up-guys were urban, and making snide comments about smelling cowshit and other comments questioning the manhood of the group of local farm kids. Apparently the urban guys were unaware of just how much those bales of hay and heifers way; they wound up nearly dead in a ditch.

No matter what jerks the urban guys had been, no matter what come-uppance one might thing they deserve, the law says the local farm kids had to retreat. Even the one who was really good with his fists. He's now doing a very long stretch of time for this.

Many people would consider an hour of taunts and insults to constitute an act of first aggression. The urban boys were, obviously, looking for trouble. They were trying to start something. But the law says this is not an act of first aggression. Not until the first punch is thrown.

Then, since the incident was in an open parking lot, the duty of retreat would have applied; the local kids could have, and legally should have, run. Had the urban guys hit them, they would have been entitled to take enough of a punch to break away and run, but would never have been justified in using more force than necessary to escape.

There are many more factors in self-defense law, including the strengths and capabilities of the individuals involved, the jury's perceptions of the reasonable fears of the people involved, along with all of our society's biases, privileges, and prejudices. The self-defense laws both on the books and as applied seem so varied and capricious as to be unjust. Whenever there is a vast realm of discretion in some area of the law, that law can easily be applied unfairly, to the benefit of some and the detriment of others. Yet whenever laws have no discretion -- like mandatory sentencing -- they are also unfair and don't allow juries and judges to take into account the infinitely varied factors of all the circumstances and people to whom they are applied.

I don't know where to start to begin making our self-defense laws across the country reflect the right of every individual to the dignity to protect themselves against physical aggression while not giving a free hand to troublemakers and vigilantes. I tend to think that an expansion of the concept of first aggression, so that juries are instructed that they can consider whether a person was looking for trouble, might be a good place to start -- but the problem is working through all the possible scenarios that might arise and trying to figure out how this could also be mis-used to the detriment of justice rather than its advancement.