In a recent article on Justica.com, Cornell Law Professor Sherry F. Colb presented an interesting and informative analysis of the perception of so-called “Stand Your Ground” (SYG) laws and their implications. While the thought experiments posed by Professor Colb are helpful in determining one’s own position with respect to such laws, they seem to ignore the requirement in most such statutes that the fear of imminent death or serious bodily injury be reasonable. Also, her analysis does not address the element of necessity. These requirements make the Michigan law, at least, far less Darwinian.
Michigan has had a Stand Your Ground law (the Self-Defense Act) since October 1, 2006. MCL 780.972. Under that law, “[a]n individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat” provided that “[t]he individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual” or “sexual assault of himself or herself or of another individual” or “he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.” Put simply, for a person in Michigan, deadly force is only an option to defend against death, serious bodily injury, sexual assault, or illegal force. He or she can use it to defend him or herself or another. However, for this to be a valid defense, the person using deadly force must actually fear that harm is about to come to him or her (or another person) and that belief must be reasonable under the circumstances. Further, the deadly force must be necessary to avoid the feared harm.
These last two requirements are where Professor Colb’s analysis falls short. (It should be noted that Professor Colb wrote on Stand Your Ground laws generally, and not on the Michigan Self-Defense Act specifically.) Professor Colb suggests that most people who support SYG laws picture them applying in cases like this:
Bob Bully approaches Vigo Victim in a public park and says, “Listen, Vigo, I’m holding a loaded Glock in my hand, but I’m going to close my eyes and count to five. That will give you more than enough time to leave the park. If I open my eyes and you are still in this park, I will shoot you dead. Count on it.”
Bob then closes his eyes, and Vigo has a choice: he can leave the park for safety (for purposes of our hypothetical example, assume that this will take almost no time and will truly guarantee Vigo’s safety); or he can remain where he is.
If he remains where he is, then Vigo knows that Bob will shoot him. Unbeknownst to Bob, though, Vigo has a gun of his own, and could—if he so chose—shoot and kill Vigo immediately, instead of leaving the park.
At the same time those who oppose SYG laws envision their application as something like this:
Victor is walking down a poorly lit street when he suddenly catches sight of Billy, a teenage male who appears to be loitering. Victor becomes frightened, because he does not know Billy and perceives Billy’s gait and posture as menacing. If Victor were asked to explain exactly what frightened him about Billy, Victor could not provide much more information than the fact that looking at Billy elicited an elevated heart rate, sweating, and other signs of anxiety in Victor. This reaction, Victor might explain, made Victor feel confident that Billy posed a threat to Victor’s life. Assume, in this case, that Victor knows that he can safely retreat from Billy (and thus, from whatever threat Billy poses) if he chooses to do so.
The Michigan Self-Defense Act eliminates the need for Vigo and Victor to retreat from their assailants. This means that Vigo, who honestly and reasonably believes Bob will kill him if he does not retreat, may be warranted in using deadly force. However, Vigo would have to show that he also honestly and reasonably believed that nothing short of deadly force would prevent Bob from killing him.
For Victor, however, the Michigan Self-Defense Act is unlikely to provide any meaningful defense. Remember that Victor cannot articulate what it was that made him fear Billy. Billy has made no overt threatening act or statement. He was not even carrying a weapon. While Victor may honestly be fearful for his life merely as a result of Billy’s presence, that fear is not reasonable. Nor can it be said that there is any imminent threat of death, great bodily harm, sexual assault, or unlawful force. While the law permits a person acting in self-defense to be mistaken about the presence of the threat, it must still be a reasonable mistake.
The Michigan Self-Defense Act of 2006 does permit individuals to “stand their ground” and defend against perceived threats to their lives, health, or integrity. However, Professor Colb’s analysis would imply a far broader application than is appropriate under the law.