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Letter: What is a 'stand-your-ground' law?

Smith writes in response to a WDAY story about how North Dakota's new law applies to police officers.

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The Forum recently published a story by Matt Henson, “ Expert: North Dakota's new 'stand-your-ground' law does not apply to officers .” Reading this article, it seems that the intended message is to say that police officers have stricter rules of when they get to kill people, compared to ordinary citizens. That’s not true.

The article does say that our new “stand your ground” law (passed in 2021, which loosens use of force rules) does not apply to police officers, which is technically true, but misleading. What these laws do is remove the “duty to retreat.” This means that someone has to be backed into a corner before they can fight back. The article is misleading because police have never had this duty to retreat to begin with. You can’t remove something that isn’t there.

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The so-called "stand-your-ground" legislation expands the existing "castle" law that permits the use of deadly force at one's home or workplace but requires an effort to escape the attacker in public places unless one's life is in danger. The new law eliminates the "duty to retreat" and allows the use of deadly force to prevent a violent felony in public or any other place a person is legally permitted to be.

Back in 2012, 'stand-your-ground' laws made national headlines after George Zimmerman killed Trayvon Martin. This was the initial event that sparked the whole “Black Lives Matter” movement. The law never applied to this case because Zimmerman was laying on the ground, which counts as being backed into a corner. But nonetheless, the media ran with the narrative that these laws allow people to “shoot first, ask questions later.” That is definitely not true.

Readers may be wondering at this point, “When is it legal to kill people?” The answer to that question is, “Almost never… Almost.”

The rules for deadly use of force are very strict, and they continue to be very strict even with these new 'stand-your-ground' laws. First and foremost, the defender’s life must be in imminent peril. You cannot take someone else’s life if your own is not currently being threatened. A deadly threat that has since passed, or a hypothetical threat in the future, is not good enough.

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For example, last year in Fargo, a man robbed half a dozen stores in the span of a couple days. His crime spree ended when he got to a pawn shop and the clerk pulled his own gun, causing the robber to flee. After the robber fled, the threat against the clerk was over, but the clerk chased after him and shot at his getaway car. Prosecutors charged the clerk and he pleaded guilty to reckless endangerment. What he did is not allowed under North Dakota’s deadly force law, despite being the victim of an attempted robbery.

Second, you cannot be the initial aggressor in the fight. For example, if you try to rob someone, and they pull their own gun to defend themselves, but you shoot first, that is not protected by the law. The right to self-defense applies to innocent victims, not the perpetrators of crime.

Third, you cannot use more force than is necessary under the circumstances. For example, if someone is punching you in the face and you would be otherwise justified in defending yourself, you don’t get to pull out a gun and shoot them. Deadly force can only be used to stop a deadly threat. If you want to defend yourself from that situation, get pepper spray. The law values the life of a criminal more than your bloody nose.

The law is a bit more complicated than that, but broadly speaking, those are the rules. In some states, there is a fourth rule that you have to run away if that option is available to you; this is the “duty to retreat.” Removing this fourth rule does not change the other three rules. To call these new laws “shoot first, ask questions later” is a malicious misrepresentation of the facts. The Forum didn’t say that but other media companies do.

The purpose of this letter was to point out the rules for police use of force are a bit different. Those first three rules still apply, but police have never had a duty to retreat, even without the new law. I did say police are allowed to use deadly force in more circumstances than ordinary citizens. For example, police are allowed to use deadly force against a fleeing suspect after the commission of a violent felony, and the suspect is likely to endanger the public “unless apprehended without delay.”

Ordinary citizens can’t do that. You don’t get to be a vigilante.

The rules for police are still pretty strict. But when The Forum implies citizens have it easier than police because we recently passed "stand-your-ground," that’s not true.

Note: I’m not a lawyer.

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William Smith lives in Fargo.

This letter does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

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