Jan 092017
 
Owen Courrèges

Owen Courrèges

Victoria Coy, the executive director of the Louisiana Violence Reduction Coalition, went on a bit of a tear this past week over Louisiana’s so-called “Stand Your Ground” (SYG) law. In an opinion piece written for The Lens, Coy made claims that, if true, would indeed be quite disturbing:

  • Stand Your Ground was tacked on to Louisiana’s Justifiable Homicide rules in 2006, upending centuries of common-sense definitions of self-defense.”
  • Under the revamped rules, you no longer have the duty to retreat from a threat before using lethal force. You need only ‘perceive’ a threat in order to justify meeting force with force — even if you could easily escape that threat.”
  • Stand Your Ground has codified prejudice. . . . If black men are the scary ones, then why should they be afraid? It’s this exact logic that is not only encouraged, but required under the disastrous Stand Your Ground law.”

My, that does sound unsettling. Of course, it’s also utter nonsense. Coy’s claims betray ignorance of the law; ostensibly, she could not be bothered with performing the most cursory research into the history of Louisiana law relative to SYG.

First of all, it is simply not the case that SYG “upended” Louisiana law regarding justification. Unlike all other states, Louisiana is a civil law jurisdiction. Accordingly, Louisiana law never encompassed the old common law “duty to retreat.”

The Supreme Court laid out the Louisiana rule starkly in the case of State v. Simon, 131 La. 520, 532 (La. 1912), upholding a jury charge that said “[i]f a man who is not at fault is suddenly assaulted by another, who intends to kill him or to inflict on him great bodily harm, he is not bound to retreat at all, but he may stand his ground and kill his assailant if there is reasonable, apparent necessity for so doing to save his life or to protect his person.”

Thus, Louisiana’s traditional self-defense law clearly and unequivocally rejected any notion of a duty of retreat. Yet despite the foregoing, many court subsequent decisions included consideration of the possibility of retreat in determining whether there was reasonable necessity for the use of deadly force. The 2006 SYG law remedied that, declaring that there could be no consideration of retreat.

Hence, Coy was incorrect that Louisiana’s SYG law was some earth-shattering change. If anything, it restored Louisiana’s traditional self-defense laws.

Where Coy’s piece really goes off the rails, however, is in arguing that Louisiana’s SYG law amounts to an endorsement of personal prejudice. First, SYG did not change the standard for the use of deadly force in self-defense; it was and remains that the individual claiming justification “reasonably believe[d] that he [was] in imminent danger of losing his life.” The only change was that juries would no longer be permitted (or asked to) to consider the possibility of retreat, and that has nothing to do with race.

Secondly, the standard for justification – a reasonable belief of imminent death from an attack – is not a subjective one. It is hornbook law that the use of the word “reasonably” connotes an objective standard. It is not subservient to personal prejudice.

The question posed to the jury is not whether the person claiming self-defense was possessed of some prejudice, bias, or personal phobia that led them to feel threatened. Rather, the question is whether a hypothetical, “reasonable person” under similar circumstances would have believed that their life was in imminent danger.

Obviously, a “reasonable person” is not a vile racist.

Besides, the claim that SYG laws somehow promote racism or disadvantage racial minorities is belied by the facts. In Florida, where the first SYG law was passed, studies have shown that black defendants are some of the biggest beneficiaries –both more likely to invoke SYG and to be acquitted as a result. Presumably, Louisiana’s experience has been similar.

The debate over self-defense law needs to be based on actual facts, not hysterics. Characterizing SYG laws as some radical departure that devalues peoples’ lives based on race may make for juicy propaganda, but it’s wrong. There’s no retreating from that.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

  • Deux amours

    Of course, reasonable people can disagree on what is reasonable. The question is very fact intensive and frequently involves some split second decision or action. Most people fail in their analysis by not understanding that it is what the person reasonably thought, not whether he was correct on further analysis. Unarmed men get reasonably shot frequently.

    • Owen Courrèges

      Deux,

      It’s not really what the person reasonably thought, which could be subjective, but what a reasonable person would have believed under the same circumstances.

      However, you’re still fundamentally correct — the jusitification analysis is not supposed to be in hindsight. The consideration of retreat as a possibility was seen as inviting too much armchair quarterbacking, which is why it has been largely eliminated (it was also seen as flatly unfair to say that a person being attacked should have to flee from a place they have a right to be before defending themselves).

  • Dixie McIlwraith

    I don’t think it is obvious at all that a “reasonable” person is not a racist. A reasonable person is a subjective view, based on the beliefs and prejudices of the jury, or another party presumably thinking “reasonably.” If that person believes that some racial group is likely to be more dangerous than another, and therefore deadly force is justified as self defense, then racism is definitely in play. As an example, if a man hears a knock on his door at night, opens the door, steps out and sees a strange black man standing outside, he has the choice of “retreating”, ie: stepping back inside and shutting the door, or believing his life is in danger because he “reasonably” knows strange black men are dangerous, carry guns, and he believes he is in danger. So he shoots. And reasonable men who also fear strange, black men at their door at night agree with him. Only maybe it was just a guy looking for directions, or needing to use a phone, or at the wrong address, or not even a man, a girl, asking for help. Still, the owner reasonably believed he was in danger of being killed. You cannot separate racism for the Stand Your Ground Law. Fear inherently involves pre judgment, whether reasonable or not.

    • Owen Courrèges

      Dixie,

      That’s not the case. The “reasonable person” is objective — by definition they are applying reason, not subjective perception or prejudice, to a particular set of facts. Now, you might get a juror who is racially biased and believes that racism is based on objective facts, but the bottom line is that the instruction is designed to minimize, if not eliminate, the influence of personal bias. It specifically instructs jurors not to automatically accept the subjective beliefs of the defendant.

      Your example is likewise invalid. It would not be “reasonable” to assume that your life was in imminent danger from a stranger at your door who is not attempting an illegal entry, threatening you, or attacking you. The hypothetical “reasonable person” would not be so prejudiced and paranoid as to shoot any member of a certain race that simply appears at their door. The only way you could get to justification under those facts is to introduce subjective prejudice.

      The only point at issue with SYG is whether juries should consider the possibility of retreat as a factor when an otherwise blameless defendant claims self-defense. That issue does not involve race.

  • Cannibal Special

    Laws are not “traditions”. Older laws are not inherently “better” than newer laws. (That fallacy is the weakest cornerstone of conservatism.) Our laws necessarily evolve along with our society. You took the time to carefully cite State v. Simon from 1912, but quickly glossed over a century’s worth of “subsequent court decisions” which DID consider retreat. Why the omission? As far as I can tell, judging only by your column, Coy’s assessment that SYG upended the law of the day back in 2006 seems pretty accurate.

    Furthermore, it has been demonstrated that simply being black in a white neighborhood constitutes a “reasonable” threat worthy of SYG protection (see State of Florida v. George Zimmerman, 2013). Prejudice codified, indeed.

    • Owen Courrèges

      Cannibal,

      There are many problems with what you’re arguing here:

      1) I did not “quickly gloss[] over a century’s worth of ‘subsequent court decisions.'” As I noted, SYG overrode a few decades’ worth of decisions from the mid-20th century that departed with previous statements of the law to invite consideration of retreat. I don’t know where you add up “over a century’s worth” of anything.

      2) Louisiana is not a common law state, and I would argue that courts overstepped themselves by revising prior law without any relevant changes to the Civil Code. Our laws do evolve, but in a civil law state, they’re supposed to evolve due to the actions of legislators, not courts. It also appears to me that those judicial decisions considering retreat were borrowing from common law jurisdictions, which was inappropriate.

      3) Although older laws are not inherently better than never ones, the same can be said for SYG. Indeed, I would argue that SYG is the natural evolution of the law, which has generally been to limit consideration of retreat.

      4) It has not “been demonstrated that simply being black in a white neighborhood constitutes a ‘reasonable’ threat worthy of SYG.” First of all, Zimmerman didn’t claim SYG insofar as he claimed that he was unable to retreat. The validity of the “‘reasonable’ threat” standard is not the issue with SYG; the only issue with SYG is retreat (Why do I have to keep repeating this?) Secondly, Zimmerman claimed that he was being attacked, not that he just saw a black person in his neighborhood. Nobody, to my knowledge, has claimed self-defense purely based on the race and location of the person they killed.

    • Turlet

      There are new laws and policies that conservatives would like to see enacted, like a balanced budget amendment to the Constitution, expansion of the voucher program, and so on. Combined with your mischaracterization of the Zimmerman case, are you going to examine what factor is causing you to repeatedly make false statements?

  • disqus_ain7Kk28WZ

    The 1912 decision states that there was an assault that would justify a physical response. SYG does not seem to require any assault to occur, just something else, or nothing else, that is interpreted as a provocation.

    • Owen Courrèges

      This is incorrect for two reasons:

      1) It is not SYG that adopted the standard in La. Rev. Stat. 14:20 that the individual claiming justifiable homicide “reasonably believe[d] that he [was] in imminent danger of losing his life.” That was already the standard.

      2) The jury instructions in State v. Simon were not limited to an “assault.” The instructions previously explained the state of mind required for justification in detail as follows:

      “To justify the killing, it must appear that his life was in danger, or that his person was in danger of receiving great bodily harm, and the circumstances must be such as would lead a reasonable person to that conclusion. In such circumstances, it is not necessary that he should have been in actual danger of losing his life, or of receiving great bodily harm, but there should exist a reasonable appearance of danger, and he must have believed from the circumstances surrounding him that his life was in danger, or that his person was in danger of receiving great bodily harm, although such danger did not actually exist, and the circumstances guiding him in his conclusion as to his danger must have been reasonable, and such as would lead a reasonable person to such a conclusion. It is not enough that he should have believed himself in danger, but the facts and circumstances must have been such that the jury can say that he had reasonable ground for such belief.”

  • Turlet

    Racist is a loaded term, and it could be argued that the “anti-racist” crowd is “racist” against whites, jews, and asians, delegitimizing the concept itself, which, based on the dictionary definitions, never was legitimate. I sure hope that “racism” or the lack thereof plays no part in whether a person’s actions are considered reasonable in court. Also, there is no debate about self-defense.

  • Cannibal Special

    Rather than escalate the nitpicking, let me try a different tack…

    Your approach to punditry is akin to lobbing a grenade and then arguing about the history of gunpowder.

    Whether you or I agree with it, Ms. Coy’s opinion piece is valid and timely. Trying to shoot it down with arcane technical analyses misses the point entirely and does nothing to further the discourse (unless, of
    course, you’re writing a poli-sci textbook).

    Topics like SYG and “reasonable threat” are pertinent societal issues. State v. Simon 1912, not so much.

    • Owen Courrèges

      Cannibal,

      I’m hardly missing the point. Coy’s piece made two arguments:

      1) SYG laws are extreme, unprecedented, and racist; and,

      2) As an example, see how the JPSO applied it in two different cases.

      I focused on the first issue, and showed that Coy’s analysis of the background of SYG laws was completely uninformed. SYG is neither radical nor a departure from traditional understandings of justification. Furthermore, the “reasonable person” standard predates SYG and is specifically designed to minimize the impact of subjective prejudice.

      However, Coy was also wrong on the second issue (the two cases she cited were actually from different police departments). That’s why her piece now has not one, but two corrections.

      These concerns aren’t arcane or technical; they’re an attempt to establish the foundation of the debate so it doesn’t degenerate into a moving target.