Back in January, a young Mizzou student, Karl Henson, became dissatisfied with his new phone, and he listed the device for sale on Facebook, where it remained for about 30 days before a buyer contacted him. The two men scheduled a meeting in Columbia, and during the transaction, the buyer took off with Henson's phone without paying for it. Henson pulled his pistol, and started firing at the thief. Henson wasn't much of a shot, the thief lived, but one of the rounds found its mark in his heel. Henson told police that he believed that his use of deadly force was justified under Missouri's new "Stand Your Ground" law which became effective at the beginning of the year.
Justification in Henson's case had nothing to do with Stand Your Ground, but rather use of force to defend property. Under this rule, physical force, but not deadly force, is permitted to prevent theft unless deadly force is necessary to protect against death, serious physical injury, or any forcible felony.
Henson's beliefs were wrong, and he has now been charged in Boone County, Missouri with Assault in the First Degree and Armed Criminal Action. Henson faces 10 to 30 years, or life, on the assault charge, with a mandatory minimum of 85% before becoming eligible for parole, and a mandatory minimum of three years on the ACA. He's expended money on lawyers, litigation, and to a bondsman who posted his $50,000 bond. Henson's ignorance has already cost him thousands, and it may cost him a decade or more of his life.
Missouri's rules on use of force, including self defense, have become increasing complex over the years. The "Stand Your Ground" rule, along with the so-called "Castle Law Doctrine" have changed the circumstances when force or lethal force may be justified. Coupled with these changes, Missouri has now authorized its citizens to carry unlicensed concealed weapons throughout the state, except in the seventeen places where the General Assembly has decided that you cannot carry a concealed weapon. Without licencing, there is no reasonable assurances that an armed citizen actually knows the legal parameters for when lethal force may be used, where a weapon may be carried, or the inherent legal risks that may come along with ignorance of the law.
My hope is that this article on Stand Your Ground will help my clients avoid the type of mistake that that Henson made. This article alone, however, is hardly enough legal training if you plan on being armed, and it is always wise to spend a small amount of money to ensure you know exactly what is allowed and what isn't. Meet with a lawyer and learn the law.
The new law reads simply enough: "A person does not have a duty to retreat: (1) From a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining; (2) From private property that is owned or leased by such individual; or (3) If the person is in any other location such person has the right to be." This modifies the general rule that use of force is permitted only if it is reasonably necessary to prevent the imminent use unlawful force. The so-called "duty to retreat" is embedded in the rule that any use of force be necessary. If you can escape, then you can avoid using force to protect yourself or someone else.
Importantly, Stand Your Ground does not change the circumstances where deadly force is justified. Deadly force is still only allowed to protect yourself or another from death, serious physical injury, or any forcible felony. (The Castle Doctrine changes this rule, and will be a subject of a future post.)
The creation of Stand Your Ground has some merit in public policy. Someone who is attacked often has only a split second to make a decision whether to flee or fight. If that person is then later charged, a prosecutor may argue that the defendant could have, and should have, escaped from harm, and so the decision to use force was both unnecessary and unreasonable--which would make the defendant guilty. The same policy goals are also present in the Castle Doctrine, where victims of a home invasion shouldn't have to decide in a split second whether the intruder's actions merit deadly force. The concept behind these laws is to give the benefit of the doubt to the victims of crimes, who, if charged, should not have their high-stress, split-second decisions second-guessed by a jury.
Prior to implementation of Stand Your Ground, despite public perception, there was no such thing as a duty to retreat. The phrase itself makes it sound as though a person under assault must first find an escape route prior to fighting back. That was never the case. Rather, use of force must have been reasonably necessary, and if a situation did not allow for a safe escape, force was always justified even without Stand Your Ground laws. The law did not require a person to make a run for it before using force if the escape attempt was unreasonable, and this misconception has in part fueled the public's desire for these types of laws.
In the gym where I once trained Krav Maga and my kids still train in jujitsu, Warriors Academy KC, the philosophy of self-protection remains in line with the old laws of self-defense. It is safer, both physically and legally, to get out if you can. Avoid bad places and unsafe situations. If you find yourself in an unsavory spot, escape before you can be attacked. If extrication is not safe, and if the situation cannot be deescalated or diffused, then it is time to fight if an attack is imminent. The current law, however, may convince someone to "stand their ground" simply so they can get in a fight that is otherwise avoidable. Not only is that approach to self-defense incredibly risky to one's health, but it may create significant legal risks as well. Prosecutors may still charge someone, under their view of the facts and interpretations of the law, and juries may still convict. There are no guarantees once a fight goes down, especially if one of the combatants ends up dead. And if you are the one who lives, it may be a life in a jail cell.
But if you are assaulted and fight back, and you did consider escaping but decided it was far too risky, Stand Your Ground will provide a defense and good measure of legal protection from being second-guessed at a prosecutor's desk or in a jury deliberation room.
So use the law for its intended purpose: not to get into physical fights, but to stay out of legal ones.