A Constitutional Challenge to Modern Stand Your Ground Laws?

Substantive Due Process
This argument begins from the idea that the Due Process Clause recognizes some life interest—an interest that contemporary versions of Stand Your Ground laws violate. The substantive interpretation of the Due Process Clause looks to “principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Rather than being seen as legitimately protecting the right to life, Stand Your Ground laws could be seen as depriving people of life without due process of law.

Modern-Day Stand Your Ground
To understand why, it is first necessary to understand that basic “no duty to retreat” laws have existed for over a hundred years. Historically, no-duty-to-retreat laws originated in the 1800s and early 1900s, in the South and in the West. According to Prof. Dan Kahan, “[b]y virtue of the slave culture in the former and the frontier culture in the latter, both of these regions had inherited rich systems of honor that put a premium on physical displays of courage and on violent reactions to slights [the so-called ‘true man’ doctrine].”

Yet, despite the already problematic nature of how these laws originated, modern-day versions of Stand Your Ground routinely permit people to invoke “no duty to retreat” beyond what even history—problematic as it already was—has permitted. Routinely, people have invoked Stand Your Ground in wholly public property far outside their own private places of dwelling, as Caroline Light details in her recent book. Yet, arguably even historical Stand Your Ground laws, in extending the so-called “castle doctrine” outside of the home, did not necessarily envision that this doctrine could be invoked in any possible public property, such as quasi-public spaces under private ownership, where any legal right to be is potentially predicated on restraint on the carry or use of deadly weapons. Routinely in recent times, people have also invoked Stand Your Ground to justify the use of deadly force in highly questionable circumstances, such as those in which no imminent threat of danger existed (or had ceased to exist), but rather the would-be “defender” comes back to use deadly force, a practice that likely would not have been covered by Stand Your Ground laws historically.

In other ways, today’s iterations of Stand Your Ground laws break even more egregiously with the already-problematic Stand Your Ground laws of the past. For example, Florida has gone far beyond traditional Stand Your Ground laws by adopting such provisions as:

• deprivations of civil causes of actions for those harmed by proclaimed instances of Stand Your Ground;
• limitations on the arrest of individuals who invoke Stand Your Ground;
• the imposition of pretrial hearings wherein judges alone can dismiss a case if determined that Stand Your Ground was invoked lawfully; and
• shifts in burdens of proof, requiring prosecutors to show that Stand Your Ground was not legitimately invoked (if Gov. Rick Scott signs a bill currently on his desk).

Removal of Traditional Protections for Life/Property Interests
How do these laws, then, amount to a possible due-process violation? The Due Process Clause, of course, inhibits state action. In these cases, it is not the state itself that directly takes any life. Nevertheless, legislatures passing modern versions of these laws—thus abolishing traditional “duty to retreat” (or less permissive “no duty to retreat”) regimes, as well as civil causes of action—are unconstitutionally removing common- and criminal-law protections for these life interests. This amounts to a potential substantive due-process claim.

Indeed, the U.S. Supreme Court has recognized that “[q]uite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way.” PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 93–94 (1980) (Marshall, J, concurring). See also New York Central R.R. Co. v. White, 243 U.S. 188, 201 (1917) (noting uncertainty as to whether “a state might, without violence to the constitutional guaranty of ‘due process of law,’ suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute”).

On one hand, “the Supreme Court has never decided what level of constitutional scrutiny applies to a statute that abrogates a common-law cause of action and leaves no alternative remedy available.” Ileto v. Glock, Inc., 565 F.3d 1126 (2nd Cir. 2009). On the other hand, a thought experiment may be illuminating: What if any particular state decriminalized what is traditionally thought of as first-degree murder, with malice, as well as removed the civil tort cause of action for wrongful death? Arguably, this is what contemporary versions of Stand Your Ground amount to.

Other provisions such as limitations on arrest, pretrial hearings, and burden-shifting also amount to potential substantive due-process violations. Of course, these types of provisions are more traditionally thought of as having to do with procedural due process. Here, this is not strictly the case: The person afforded traditional due-process protection is the defendant invoking Stand Your Ground. Nonetheless, these may still amount to substantive claims, based on the argument that when the government has allowed for the deprivation of life (or property) interest, it must have a fair procedure for doing so.

In this case, a novel argument may lie in the idea that prosecutors—who are representing the life rights of those potentially victimized by Stand Your Ground—should be able to access fair procedures on behalf of those rights. Instead, they are faced with procedures that dramatically shift the balance toward those who historically would have been considered aggressors, not themselves victims. The Fifth Amendment, this argument would further proceed, must implicitly protect the lives of victims in a manner that prosecutors might be able to challenge a legislative reconceptualization of fair procedure; in these cases specifically, when it is another part of the government itself that allows for the taking of these lives in the first place. Without this fairness, these provisions, though procedural in nature, arguably amount to another substantive due-process problem: They limit the ability of victims and/or their families to affirm life interests implicitly through criminal proceedings. (Further support for this argument is found in legal scholarship attempting to establish that municipalities might have substantive due-process rights against the state that has created them.)

Admittedly, this is a novel argument. Yet again, however, the hypothetical comparison to first-degree murder is illuminating: What if a particular state limited arrest powers or allowed for pretrial hearings where first-degree murder with malice was alleged (a situation where it is possible that a person might falsely invoke Stand Your Ground)? Of course, the constitutional rights of defendants and bedrock principles of “innocent until proven guilty” must be upheld. Yet, these very rights are rooted in strong historical background. These shifts in Stand Your Ground laws pointedly are not, and arguably allow at least some people to get away with what, indeed, amounts to murder in the first degree.

State-Created Danger
Beyond creating a substantive due-process violation by removing historical protections, legislatures that pass Stand Your Ground laws also create this violation through the “state-created danger” theory. According to the Eleventh Circuit, “conduct by a government actor will rise to the level of a substantive due process violation . . . if the act can be characterized as arbitrary or conscience shocking in a constitutional sense.” Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1305 (11th Cir. 2003). Of course, the passage of Stand Your Ground laws is on its face hardly arbitrary—indeed, it is deliberate—but therein actually lies its problematic nature.

In particular, these laws are clearly conscience-shocking. Advocates of these laws assert that they have a legitimate basis (i.e., protecting a right to self-defense). However, not only does the legislative intent behind these laws manifest a dubious intention, but the laws in practice manifest clearly problematic applications as well, as documented, among other places, by a statistical analysis of racism and sexism in Florida's Stand Your Ground cases. At best, these laws, even if well intentioned by legislatures, are vague and impossible to apply in a consistent, just manner (an argument further explored below). At worst, these laws are driven—and have the effect of—perpetuating racism, sexism, and other societal problems. In this sense, the passage of Stand Your Ground, while hardly “arbitrary” in the sense of “random,” is “arbitrary” in the sense of operating on “irrational” discrimination.

Vagueness
Finally, part and parcel of these arguments—but also standing alone as a due-process “void for vagueness” argument—is precisely the fact that these laws lack sufficient specificity. Legislation “may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.” Musser v. Utah, 333 U.S. 95, 97 (1948). Persons “of common intelligence cannot be required to guess at the meaning of [an] enactment.” Winters v. New York, 333 U.S. 507, 515–16 (1948). The U.S. Supreme Court has struck down, on precisely such grounds, statutes that do not give fair notice, and permit and encourage arbitrary arrests and convictions.

On their face, modern-day Stand Your Ground laws are lenient, rather than unforgiving, toward those who might be charged with a crime; that is, those who would invoke Stand Your Ground themselves. Yet, there is at least some evidence of racial and other disparities regarding who is able successfully to invoke Stand Your Ground. A popular comparison is the George Zimmerman case with that of Marissa Alexander, a black woman who fired a warning shot at her husband but was nevertheless unable to invoke Stand Your Ground successfully, and was ultimately convicted.

These potential disparities only emphasize how vague Stand Your Ground is in practice, not only with respect to those who are victimized, but by those who might seek its protection. With respect to self-defense, which generally uses a “reasonable person” standard, there will always be an element of uncertainty. Line-drawing will never be perfectly consistent. Once again, however, the problem is not actually one of arbitrariness in the traditional sense. Instead, the problem with Stand Your Ground laws is that they consistently allow for “irrational” biases, ultimately with deadly effect.

Conclusion
Much more must be done to turn these novel arguments into actual winning litigation. Still, it provides a possible opportunity to challenge a trend that, despite its dismal and deadly results, is only getting worse. Stand Your Ground laws speak to the very interests enshrined in the Due Process Clause of the U.S Constitution. Given that so much of the constitutional dialogue on self-defense already revolves around what rights are and are not afforded to those wishing to carry weapons, this may be an important opportunity to use the Constitution to speak about the rights of those harmed by weapons.

Marvin Lim is a civil rights attorney in Atlanta, Georgia.

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