This is the second part of my analysis of the National Forensics League, 2012 Public Forum debate national Tournament topic. For part 1 click here.
Expansion of The Castle Doctrine
The Castle Doctrine (or Defense of Habitation Law) is a type of law enacted by more than half the states in the U.S. which basically says a person's domicile (home) may be defended against an intruder without fear of prosecution or civil lawsuit. The law is derived from the English concept that a "man's home is his castle" hence the name, castle doctrine. The law provides for the use of force and in most cases the force may be justifiably deadly under certain circumstances. Some states have expanded the law to include workplaces and vehicles. In nearly every case, the person defending himself must show there was a fear of imminent death or serious bodily harm and in most cases the force used must be proportionate to the level of threat. As with most self-defense statutes, the fear of imminent death or harm and proportionality are common themes. The key purposes of the law is to provide a legitimate defense against prosecution and in most cases provide immunity against civil lawsuits. What this means is, in states with a Castle Doctrine type law, clients who kill an intruder may claim the legitimate right in accordance with the law. In those states without a similar law, the client needs to prove the action was a justifiable response due to the perceived threat and other factors. In other words, a Defense of Habitation law clearly spells out the conditions which must be present to justify the action whereas, absence of the law requires clients to justify their defense on a much more subjective basis. Moreover, the laws also prevent the client from being sued by the relatives of the deceased.
Duty To Retreat
Prior to the establishment of Defense of Habitation laws and stand your ground laws, and continuing in those states which do not have such laws, the expectation is, that when a person is threatened he or she should retreat rather than respond with force. Only when retreat is shown to be impossible a client may reasonably claim to have used force in legitimate self-defense. Think about it for a second. You claim your life was threatened. The prosecutor simply says, why didn't you just run away rather than escalate the violence? Even though the laws of the state may not explicitly say so, the expectation is one has a duty to retreat because any prudent person in similar circumstances would have done so.
The International View
There is nothing explicit in the resolution which limits the debate to the United States even though the wording "stand your ground" is kind of specific to a class of laws currently being enacted or considered in the U.S. Therefore, for completeness, I should probably note the fact that a relatively small number of countries have similar laws which provide for the defense of homes and personal property. In fact in many cases, most notably, England as a good example, the right to self-defense is extremely limited and highly regulated. The defense of property is usually not considered legitimate. Additionally the possession of guns is outlawed except under certain restrictive conditions.
What is the Debate?
No doubt the well-informed debater has heard of the Trayvon Martin case in Florida, in which a man, George Zimmerman, shot and killed an unarmed teenager named Trayvon Martin on the street near Trayvon's home. Zimmerman claims the killing was justifiable self-defense and the initial police investigation operating under the state's "Stand Your Ground" law, did not charge Zimmerman believing his actions where in accord with the provisions of the law. The case triggered a national backlash, with racial undertones and has called into question the legitimacy of "stand your ground" laws. In some cases, similar to this, there are no witnesses when the client kills a person claiming self-defense and the one person who could dispute the claims of the client is dead. In jurisdictions with stand your ground laws, prosecutors have much less discretion in deciding which charges, if any, are applicable. Stand your ground laws are typically aimed at protecting the rights of the victim (that is, the one who acted in self-defense) rather than the rights of the aggressor. In a situation where one kills an aggressor in the domicile there is evidence of forced intrusion and perhaps an overwhelming sense that persons who force their way into occupied dwellings are typically meaning harm. When a person is killed on the street or in a parking lot, there is often no evidence other than the testimony of the client.
Undoubtedly, the judges at the National Tournament will have heard of the Trayvon Martin case as well and so I think there will be an underlying expectation in their minds the debate will center on the legitimacy of such laws in the light of the Florida incident and the controversy swirling around it. But in my opinion, whereas, the Florida law may provide an example of how such laws are interpreted, the debate should center around the general principle of how far the right to self-defense can be expanded before the lines between legitimate self-defense and arbitrary killing become muddled beyond distinction. Some of the issues that may be debated include:
- Do such laws reduce the crime rate or increase the death rate?
- Do such laws swing too much in favor of victims rights?
- Do such laws hurt justice by limiting Prosecutorial Discretion?
- Do such laws open the door to abuses which outweigh the good they are aimed at providing?
- Why are such laws necessary in the first place?
The PRO Burden
It seems intuitive for PRO to defend the legitimacy of stand your ground laws, this side must show why such laws are needed within the context of current "self-defense" provisions. The laws are being enacted for a reason. Why? I think one will find, the general reasoning is such laws are aimed at removing the fear that ordinary, law-abiding citizens can not legitimately defend themselves because they will enter a quagmire of legal troubles in which every thought and action must be justified. Many criminals are themselves armed and in a world where communication is rapid and available from many sources, we are aware that encounters with criminals often result in physical harm to the victims. When confronted with a life-threatening situation, why must one consider the legal ramifications of defending oneself? Why must one gather their wits enough to think, what would a prudent person do in this situation?
Nevertheless, PRO must be prepared to answer the criticisms that are being raised across the country. One must consider the charges that perhaps such laws are confusing for police and prosecutors, lead to increased numbers of killings under claims of self-defense and do little to reduce the crime rate. Fortunately, there is enough evidence readily available on the web, that each of these arguments can be answered. But in my opinion, PRO should be careful about allowing themselves to be pushed into a defensive position explaining why the CON arguments are not correct or overstated. Instead, answer the CON arguments and then refocus the judge on why such laws are good and necessary expansions of the doctrine of self defense. Always, always refocus on the PRO side.
Certainly, PRO could leverage some advantage by appealing to the emotions of the judges. I personally feel this must be done subtly so as to avoid the obvious charges PRO is resorting to a logical fallacy which may be raised by the CON. I think a well chosen example which sufficiently demonizes the criminal and illustrates the innocence of the victim can go a long way toward bumping an emotional response from the judges while avoiding overt emotionalism.
The CON Burden
Several tactics and good arguments are available to CON in this debate. I think, the CON side may gain some advantage by exploiting the current controversy in Florida. Whereas, I would consider it bad form to accuse George Zimmerman of any bad intentions or illegal activity, it is reasonable to argue how the Florida case exposes potential abuses in a law in which the burden of proof becomes more subjective than evidential. Since the case is a hot-button issue it may make sense to use that to the CON advantage but...be aware...the Florida case evokes strong emotions on both sides of the issue and by focusing on that particular case CON may actually be hurting themselves by reminding judges why they feel strongly such laws are necessary.
Depending on the sources chosen, one can make the case that such laws do little to reduce crime and certainly there is evidence the number of killings has actually increased in states with stand your ground laws even though they would not be considered murders under the provisions of the law. By eliminating the "duty to retreat", stand your ground actually has the potential to escalate violence rather than reduce it since the client need not take steps to avoid violence. Additionally, CON can make a strong argument that stand your ground has the potential to eliminate the "due process" rights of the alleged criminal since the client assumes the role of judge, jury and executioner in those critical moments when perhaps running away would have been the more reasonable course of action.
Finally, and this may be the best tactic, CON may simply turn the PRO case by claiming that stand your ground laws are NOT necessary since such ideas have already been present in current self-defense laws as evidenced by the Beard v United States case. There were no stand your ground laws when that decision was made and yet the Supreme Court expressed the opinion that Beard had the right under the circumstances. it can be argued that the Beard case represents the best of American jurisprudence since the State did not arbitrarily accept Beard's claim of self-defense without giving due consideration to the man killed. The goal of the State was to ensure that Beard did not literally get away with murder and while the court did ultimately side with Beard, no one can claim the rights of the deceased were not protected.
For more on CON and PRO positions - click here