Changes to ‘Stand your Ground’ make it defensible

The killing of Trayvon Martin in Florida recently has prompted an examination of so-called “stand your ground” laws passed in recent years by many state legislatures.

    These laws were strongly supported by the National Rifle Association. West Virginia has been listed in much of the national media as a state that has passed such a law. This is inaccurate.

    Such a law was in fact introduced in both houses of our legislature in 2008. The NRA was indeed a strong supporter. The NRA deviously called the contents of that bill a “castle” law, not a “stand your ground” law.

    Sir Edward Coke, one of the most eminent jurists in the history of British jurisprudence, wrote in a 1603 court decision “…the house of everyone is to him as his castle and fortress, as well for his defense against injury and violence, as for his repose…” Sir Edward went on to say “…everyone may assemble his friends and neighbors to defend his house against violence; but he cannot assemble them to go with him to the market or elsewhere for his safeguard against violence; and the reason for all this is because ‘domus sua cuique est tutissimum refugium’ (his own house is the safest place of refuge).”

    Since then it has been accepted in law that one has a clear right to use deadly force to defend one’s home. That is the “castle” doctrine. But such a right is not so clear when one is defending oneself in public. You can certainly defend yourself, but you are expected to attempt retreat first. If you kill someone in public the presumption that you had a good reason is not nearly as strong as it is if you kill someone in your own home.

    “Stand your Ground” laws stand this 400-year old precedent on its head. It presumes that you have just as much right to fire your pistol at someone in the shopping mall as you do when someone is breaking into your house.

    By camouflaging the introduced bill as a “castle” law I suspect the NRA hoped to inveigle legislators into thinking that they were not venturing into uncharted territory. It partly worked. The Senate passed the bill unchanged.

    The House of Delegates Judiciary Committee, under the leadership of then-Chair Carrie Webster, D-Kanawha, had other ideas. That committee made major changes. House Judiciary amended the bill to the point that it was no longer a “stand your ground” bill. Instead it merely reaffirmed the precedents enshrined in common law by Coke and hundreds of successors on benches in Britain and the United States.

    West Virginia courts had already participated in the refinement of the distinction between defending oneself in the castle and defending oneself in public. In “State vs Workman” (1891) the state Supreme Court in an opinion written by Judge Lucas, president of the Court, said, “The presumption which the law establishes, that every man who goes armed in the midst of a peaceable community is of vile character, and a criminal, is in consonance with common law and is a perfectly just and proper presumption, and one which ought to prevail in every community which aspires to be called civilized.” Lucas further said that a person carrying weapons in public could overcome the presumption of vileness by offering evidence that he or she is a person of good character. The judge then conceded “This is a discrimination, it is true, between classes; but it is only a discrimination in favor of the virtuous class against the dangerous and vicious.”

    The bill reported to the floor of the House by the Judiciary Committee had been transformed from a “stand your ground” bill into truly a “castle” bill. Ironically, the House Judiciary Committee had made the NRA honest.

    I was prepared to vote against the bill when it really was a “stand your ground” bill masquerading as a “castle” bill. When it was neutered to the point where it made no change from common law I voted against it because I considered it unnecessary.

— John Doyle represents the 57th District in the West Virginia House of Delegates.

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