ALEC Unfairly Demonized Over “Stand Your Ground” Laws

by Hans Bader on April 19, 2012 · 1 comment

in Features, Legal, Politics as Usual, Sanctimony, Zeitgeist

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The pro-free-market American Legislative Exchange Council (ALEC) is under fire for its support of self-defense laws, known as “Stand Your Ground” laws. It began after George Zimmerman, a 28-year-old Hispanic, shot and killed Trayvon Martin, an African-American teenager, and claimed to have done so in self-defense. Zimmerman has now been charged with second-degree murder by a Florida prosecutor.

Since Zimmerman has claimed self-defense, the media has used the shooting as an excuse to attack “Stand Your Ground” Laws, the laws in two dozen states that formally recognize the right of people threatened with death or serious bodily injury to defend themselves with a firearm rather than retreating. But attacks against Stand Your Ground are rooted in widespread misconceptions about how the laws work.  In George Zimmerman’s trial, Florida’s Stand Your Ground Law will probably “make no difference,” and not affect Zimmerman’s odds of being convicted, notes legal commentator Walter Olson. (The media, especially NBC and the New York Times, have also made many false, misleading, and racially inflammatory claims about Zimmerman and the town in which the shooting occurred, as I discuss at this link.)

The New York Times’ Paul Krugman and the left-wing American Constitution Society have depicted Stand Your Ground laws as being an appeal to “ignorant yahoos.” That reflects their own ignorance. The concept behind the law — that you can defend yourself rather than retreating in the face of grave physical threats – originated in many state judiciaries in California and elsewhere. Indeed, Robert Leider points out in The Wall Street Journal, “California became a Stand Your Ground state more than 150 years before Florida.” The concept was then adopted legislatively in various other states.  In some of these states, the Stand Your Ground legislation effectively changed state law to make it more congenial to self-defense claims.  In others, it largely codified existing judicial interpretations of the defense. As law professor Michael Mannheimer has noted, “the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development.”

Moreover, Stand Your Ground laws did not make huge changes in existing law, since they did not eliminate the requirement that a use of force be “reasonable” to justify a claim of self-defense — and since even the duty to retreat before using force that previously existed in some states was not absolute. Professor Mannheimer writes:

[E]ven where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions.

The New York Times’  false claim that Stand Your Ground Laws allow trigger-happy people to shoot whenever they “perceive” a threat (even if the perception is unreasonable) simply ignores the plain language of Florida’s Stand Your Ground Law, which reads:

A person is justified in using 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 the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that 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; or

(2) Under those circumstances permitted pursuant to s. 776.013 [home protection].

In short, claiming self-defense won’t get you off the hook if your claim is unreasonable. The statute’s plain language thus contradicts Jeremy Leaming of the left-wing American Constitution Society, who falsely claims that this law “gives legal protection to those who kill others outside their homes, if they claim they did so in self-defense.” It also contradicts the New York Times, which falsely claims that under the law, any person who perceives a threat to his life is not required to attempt a retreat and has a right to use a weapon.” As Reason Magazine’s Jacob Sullum notes, that is just wrong:

[Florida’s] self-defense exemption does not apply to ‘any person who perceives a threat to his life’; that perception has to be reasonable—a crucial point, because otherwise panicky people could get away with murder. Second, the right to “stand your ground” seems irrelevant to Zimmerman’s self-defense claim, because in the fight he describes there was no chance for him to safely retreat.

By falsely branding Stand Your Ground laws as radical changes to existing law that endanger public safety (even though homicides fell in Florida after it adopted a Stand Your Ground law), liberal interest groups and The New York Times hope  to stigmatize a group that backed Stand Your Ground laws, the free-market oriented ALEC. Using the threat of boycotts and bad publicity, left-wing groups like the Color of Change, headed by radical former Obama advisor Van Jones, have successfully pressured many large corporations to cut off their donations to ALEC. (Ironically, Florida adopted its Stand Your Ground law before ALEC even began promoting such laws, so there is no nexus between ALEC and the Martin-Zimmerman case.)

The campaign against ALEC is an attempt to drive the marketplace out of the marketplace of ideas. ALEC’s critics and the Times complain that it is partly “corporate funded.” Strangely, ALEC’s critics have no problem with the fact that ALEC’s liberal cousin, the National Conference of State Legislatures (NCSL), is government-funded. It makes little sense to allow the government to lobby for more largesse and immunities for itself (which can happen through NCSL), while blocking corporations — which are associations of persons — from lobbying.

The Constitution’s freedom-of-petition clause, like other First Amendment provisions, protects corporations. (The Supreme Court began recognizing that corporations have constitutional rights in 1819, and other civil-liberties charters, like the European Convention on Human Rights, also protect corporations because they are associations of persons.) But the government itself has no First Amendment rights, since the purpose of the First Amendment is to allow people to control their government, not to allow the government to increase its control over the people. It is far more dangerous to allow government funding of organizations that promote government-sponsored legislation, legislation that may entrench the government’s own prerogatives, than it is to allow private entities to petition the government to reduce its power — like a Stand Your Ground law that slightly broadens a citizen’s self-defense rights against government prosecutors. Logically, ALEC’s corporate donations are less, not more, problematic than NCSL’s government funding.

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