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Editorial: Consider Retreat; Back Off From ‘Stand Your Ground’

It may well be that New Hampshire’s new “stand your ground” self-defense law is here to stay, given that an overwhelming majority of state senators blocked a House-backed repeal bill this spring. Nonetheless, state Attorney General Joe Foster is right to ask the Legislature to take another look at the issue.

The context for Foster’s request last week, although apparently not its immediate trigger, was the recent acquittal in Florida of George Zimmerman in the shooting death of 17-year-old Trayvon Martin and the reaction that followed the verdict.

Florida enacted the first stand-your-ground law in 2005, and New Hampshire became the 31st state to adopt some form of it in 2011. Generally speaking, these laws have altered traditional self-defense doctrine by eliminating the duty to retreat, if one can do so safely, when confronted with danger in a public place. Now, in stand-your-ground states, anyone who is legally in a public place may use lethal force to counter a mortal threat, much as people have traditionally been allowed to do in their own homes.

Zimmerman’s lawyers did not invoke stand-your-ground as a defense during his trial, although they have not ruled it out if a civil suit is filed. And the trial judge alluded to “the right to stand your ground” in her instructions to the jury.

Since then, U.S. Attorney General Eric Holder has asserted that such laws undermine public safety “by allowing and perhaps encouraging violent situations to escalate in public.” President Obama also raised the issue in his recent remarks on race in America, asking the excellent question, “if we’re sending a message as a society . . . that someone who is armed potentially has the right to use those firearms even if there’s a way for them to exit from a situation, is that really going to be contributing to the kind of peace and security and order that we’d like to see?”

We suspect that the answer is “no” for most people, but emphatically “yes” for advocates of stand-your-ground. We have long thought that symbolism plays an important part in the debate over these laws, the underlying message being that law-abiding Americans are mad as hell about crime and ought to be able to protect themselves as they see fit from the depredations of the criminal element.

Life, of course, is a bit more complex than that and the circumstances of public confrontations often ambiguous ( which is why law enforcement officers dread trying to sort out the good guy from the bad guy when arriving on a scene where both are armed). Or as Obama framed it, had Trayvon Martin been of age and armed, would he have been justified in shooting Zimmerman, who had been following him?

One thing Foster could do to help his cause would be to compile data on all self-defense cases in New Hampshire for the 10 years prior to 2011, and for the 18 months since then to inform the Legislature’s deliberations on whether a stand-your-ground law is in any way justified by the facts on the ground. This could supplement the work of an American Bar Association task force that is studying stand-your-ground laws nationally and is due to report next year on many issues, including their impact on public safety. Our fear is that if this law is on the books in New Hampshire primarily as an expression of Live Free or Die defiance, some innocent 17-year-old may die to vindicate a symbolic gesture that is better left to license plates.