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The American Bar Association (ABA) has come out with a startling, indeed groundbreaking white paper: American Bar Association National Task Force on Stand Your Ground Laws Preliminary Report and Recommendations (which oddly enough is titled “GunReport.pdf” on their website). This report is startling for displaying just how ignorant and uninformed a ostensibly select group of lawyers can be. It also breaks new ground in attempting to re-cast crime victims as criminals for choosing to fight back while painting their would-be assailants as victims. Now I could go into one of my famous multi-thousand word, highly detailed and meticulously annotated dissertations, identifying and eviscerating each logical flaw, unsupported assumption, undulating lie and outright falsification in the report, but I am not going to do that here for two reasons . . .

First, because if you read their:

I. Legal Summary of Stand Your Ground Laws

And the:

II. Executive Summary of Findings and Recommendations

You will find out all you need to know about the ABA’s (lack of) factuality and complete (non-)objectivity on the issue. Second…well, we’ll just get back to number two in a few.

So, starting with that legal summary:

Self-defense is available in all states as a criminal defense. Self-defense law applies to both non-deadly as well as deadly encounters. Self-defense is a “justification” defense, which means if the self-defense applies, the act is justified and not a crime. In other words . . .

I have a friend who is a lawyer and permit instructor. In discussions with him regarding fighting criminal charges, especially fighting complete and utter bool$hit criminal charges he always asks the same question: “How much justice can you afford?”

In other words, if you are a wealthy white lawyer you can afford to hire another rich white lawyer or two to defend yourself from the consequences of defending yourself. For the middle-class, if they’re willing to re-mortgage their home and empty the kids’ college funds they can hire a mediocre lawyer to try and keep them out of prison. If you’re blue-collar or indigent, fuggedaboutit, you get to take your chances with a public defender. There is a reason I have two lawyers on speed-dial and another two in my contacts. All four are gun-friendly as well as being solid lawyers well-versed in the intricacies of use of force cases.

The ABA report continues with some blather about “reasonableness” and “proportionate force” before slipping in this little prevarication slight falsehood gargantuan, outright lie:

Prior to the enactment of Stand Your Ground laws, most states followed the traditional common law self-defense rule, which imposed a duty to retreat before using force in self-defense, if safe retreat was available.

Really? The duty to retreat (DtR) is “the traditional common law self-defense rule”? Not according to the United States Supreme Court it ain’t. Way back in 1895, in the case of Beard v. United States, 158 U.S. 550 (1895), SCOTUS stated:

A man assailed on his own grounds, without provocation, by a person armed with a deadly weapon and apparently seeking his life is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control …

And this wash’t something they just made up on the spot. Beard cites a number of precedents, going back before there even was a United States of America. SCOTUS cited Sir Michael Foster of the King’s Bench (effectively Great Britain’s Supreme Court) who, in 1762 had published “influential treatise[s] on the criminal law of England” in which he stated:

“In the case of justifiable self-defense, the injured party may repel force with force in defense of his person, habitation, or property … In these cases he is not obliged to retreat, but may pursue his adversary till he findeth himself out of danger, and if, in a conflict between them, he happeneth to kill, such killing is justifiable.”

SCOTUS cited several other sources from the early 1800s on, all of which found that when attacked in public, or anyplace he has the right to be, a law-abiding citizen does not need to retreat and may freely use force, up to and including deadly force, in defense of himself and others. So contrary to what the learned lawyers of the ABA claim, it’s actually stand your ground (SYG) which is the “traditional common law self-defense rule,” not DtR.

Just one more example of how screwed up this report is; if we go to the Executive Summary, the second sentence states:

Much of the recent media attention surrounding Stand Your Ground laws is due to the nationally publicized fatal shooting of the Florida teenager, Trayvon Martin, and the subsequent prosecution and acquittal of George Zimmerman.

As any TTAG reader could have told the “researchers” on the ABA’s panel, neither George Zimmerman nor his lawyers ever raised SYG as a defense. When someone is sitting on your chest pounding your head against the sidewalk “MMA-style,” the question of retreat is moot.

Now that ABA’s blown its own credibility on the matter, let’s get to the second reason to impugn their report: none of their objections matter.

Even if every single claim the ABA makes were true, if passage of SYG makes homicide rates sextuple, if “white Hispanics” are gunning down black teens with impunity every day of the week and twice on Sundays, if puppies and kittens are being burned at the stake in town squares across the country as a direct result of SYG, none of that changes the fact that the presumption of innocence is an absolute cornerstone of our legal system. And stand your ground laws restore the presumption of innocence to those who have used deadly force in self-defense.

Many people are familiar with Justice Holmes’ statement that “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” Most people, however, aren’t aware that Justice Holmes was actually articulating the stand your ground defense:

Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant, rather than to kill him. [emphasis added]

I think I’ll take Justice Holmes’ reasoning over the ABA’s irrational hoplophobia any day of the week.

 

Author’s Note: This was one of the toughest pieces I have ever done, because the ABA’s report is just so chock-a-block with lies, distortions and ad hominem attacks against peaceful, law-abiding gun carriers. Practically every second sentence had some “fact” that just begged for exposure and ridicule. I had to throw everything out and start again at least three times because the fact of the matter is reason number two is absolutely the most important aspect of SYG laws, and it is so easy to get side-tracked and forget the simple fundamental fact: SYG laws restore the presumption of innocence to law-abiding citizens. Something that’s apparently abhorrent to the solons of the ABA.

 

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57 COMMENTS

  1. The ABA has become the standard-bearer for the hard left in America. I haven’t been a member since I graduated from law school 35 years ago. Even then, it was trending leftward. Now it has become a tool of the ever-expanding Imperial State.

    • I wrote a strongly worded F you letter to the ABA president a few yrs ago (4pgs w footnotes :-)) when I resigned my membership.

      • So, are y’all suggesting that part of legal representation vetting should include asking about ABA membership?

        • Very good idea. If you’re going to fork out tens of thousands of dollars for personal services, why hand it over to a member of a known subversive group?

          Accordingly, I wonder if it’s possible to find a pediatrician who isn’t a member of american academy of pediatrics.
          OTOH, is there any need for pediatricians? What can they do that your family practitioner can’t, other than expose you to more sick kids in the waiting room?

    • Every time RF or Bruce posts an ABA schpeel we’re reminded of just how many lawyers read this blog daily. I haven’t practiced in years but I love the reading.

    • I’m with Ralph, Rad Man and Dirk. When I joined the City Attorney’s office as prosecutor, I soon found an ABA membership came with that. (the Boss was a screaming lib) I told them to save their money on my membership thereafter. They did. You’re welcome taxpayers.

  3. While I admire and support your analysis as seen in the article (seriously, good job!), I also have to say that one of the things you were most critical of (the ABA statement saying “Much of the recent media attention surrounding Stand Your Ground laws is due to the nationally publicized fatal shooting of the Florida teenager, Trayvon Martin, and the subsequent prosecution and acquittal of George Zimmerman.”), is, in my mind, a 100 percent accurate statement.

    It was the media FALSELY PROCLAIMING that SYG laws were the problem that put these laws in the news, NOT their use by either side in the actual case. This fact does not change or challenge the accuracy of the ABA’s statement, in my view.

    • That is true. They are still making the (non-exisent) connection, even as they note that SYG was not proffered as part of Zim’s defense.

    • It is also the media that follows Zimmerman around like an albatross reporting every time he sneezes. Always starting the report out by rehashing the story before talking about his latest difficulty. In the constitution we can not be tried for the same crime twice. However the media can and will prosecute and convict people over and over.

  4. No one will ever have an obligation to turn their back on someone who is trying to kill him.

    Any law requiring such is immoral.

  5. Never was a member. It was always just another leftist advocacy group for as long as I can remember.

  6. From what I’ve read; the ABA, was started by a group of lawyers that were communists. Their whole purpose and existence was established to fundamentally change the USA from a Representative Republic to a communist state.

    So, this is why they will fight fiercely for the “right” of abortion; but not for the second amendment. We can’t have the public with guns stopping the march of the communist Utopia.

    The “monopoly of force” by the state is a requirement for this “Utopia” ie. tyrant controlled hellhole to become a reality.

    • Nonsense. The ABA was founded in 1878. While the word “communism” from Marx’s “The Communist Manifesto” predates this by thirty years, the soviet communist party was not established by Lenin until the early 20th century, culminating the Russian Revolution in 1917. About this same time, Howard Taft, a former US President and soon to be US Supreme Court Justice was resident of the ABA. Instead, the ABA was always an elitist organization, many from Chicago and the East Coast, and in this day and age usually associate with Democratic Party ideology.

  7. IANAL but how is it the ABA still exists?

    Its been obvious for some time they are biased hard-left.

    Seems like a fiduciary breach by the Board, to misrepresent the larger legal community,
    as some sort of standard bearer, when they discredit themselves so often with this kind of proof.

    Funding from the progtard NGO’s?

    • Because it is supported by very wealthy lawyers. Last time they tried to get me to join, the annual dues were over $400. Multiply that by 400,000 (app. membership), plus additional fees for section memberships and the money they make on continuing legal education and we are talking about a nice piece of change to run the organization.

  9. Guns are a money maker for them. Why would they not come out as they did.

    A lawyer’s highest priority is to themselves. What ever they say, it still boils down to earnings for them. God forbid they tell the truth. Damn politicians and lawyers both.

    • “Damn politicians and lawyers both.”

      Not to pick a nit but most of the time isn’t that a redundancy… and perhaps part of the problem.

    • Yup, if I understand correctly, duty to retreat is kind of a bonanza for the ambulance-chasers who represent thugs who get shot or otherwise injured by “victims” who don’t play according to the script and actually defend themselves.

  10. The ABA is correct that the common law “duty to retreat” was in place for much of the twentieth century in almost every state. The Stand Your Ground laws remove the duty to retreat that became part of the common law and statutes.

    I don’t like the ABA and they most assuredly are extreme leftists, but you need to know what you’re talking about as well when you are critical of them.

    • You make the correct distinction between federal law and state law. I cannot say that I know what the various state’s common (i.e., judge made) law may have been, but it is irrefutable that a duty to retreat was written into a majority of state’s criminal codes, codes that were extant for many years. I read recently (and frankly surprisingly) that Arkansas is one of the states that still imposes a legal duty to retreat.

      In short, Bruce, you are 0 for two on your arguments that the ABA is “lying.” And I think you also have to understand why these duty to retreat laws were enacted. Simply, it was believed that imposing such a duty would keep the peace and reduce violent encounters such as mutual combats (duels) and people taking the law into their own hands. In these circumstances, it is “better” for the law to condemn both than to permit the violent conduct by refusing to try to ascertain which was the aggressor. In England, at lest in part, the duty to retreat extends to leaving one’s house, or in the alternative, using no more than “reasonable” force to dissuade an invader–which to this day means homeowners are more likely to be prosecuted and punished more severely than the thugs who broke in. On the other side of the argument is that too many victims are precluded from defending themselves if they wish to avoid criminal prosecution.

      • Which means it is the definitions which are the problem with DtR. Anyone who thinks I will turn my back on a man attacking me with a knife is stupid.

    • @Skyler: The current Republic was formed in 1788 with apparently SYG the norm. Then sometime in the 1900s, DtR appears. Can you be more specific on how long DtR was on the books?

  13. Great article! I find the fact that,

    “ABA’s report is just so chock-a-block with lies, distortions and ad hominem attacks against peaceful, law-abiding gun carriers. Practically every second sentence had some “fact” that just begged for exposure and ridicule.”

    Terrifying yet, I’m not surprised at all. Leftist statist organizations and media all churn out that garbage. I know exactly how you feel, reading ANYTHING from one of them makes me want to puke with each sentence. Glad to read that there’s other lawyers out there who do not respect these clowns.

  14. Next month they will publish a research paper on the legal implications of why fish think they need water.

  15. Time for a first rate hatchett job on their board of governors. Some have skeletons in their closets. Others have graveyards.

  16. Wow. If I were a political cartoonist, I would draw an image of a law-abiding gun owner pinned on the sidewalk and having his head slammed into the concrete by the ABA depicted as a hoodie-wearing thug.

    Too bad I can’t draw….pictures. I can and will draw something else if need be.

  17. I’m a lawyer (sorry), and when I was in law school in Northern California in the early ’90s, we talked about stand-your-ground rules, but we were calling it the “true man” rule – as in a “true man” wouldn’t retreat. That was the rule in California at the time, and we had the idea that prissy North Eastern states had requirements to retreat if you could. You can imagine how scandalized the feminist law students were at this name: “True Man.” I really enjoyed how mad they were at that name!

    • I actually went to a Halloween party some years ago as “Reasonable Man”. Tried to pick up some girl and she asked me where I lived. “Blackacre”, I replied. Sadly, there were no other lawyers in earshot to get the joke. I went home alone.

  18. Who cares? Lawyers have less respect than MDA, ETFGS. and that Watts lady.
    A lawyer by practical definition is a professional liar and manipulator of truth.
    Another group of folks I couldn’t cares less about.

      • Having needed an attorney a few times, he was worth every penny, should have asked for more, and every time I see him, he gets a big hug.

      • I don’t get cuffed and stuffed. Have you not heard all the lawyer jokes? There is a reason for them. I use a lawyer, a damn good lawyer!

  19. Well, they don’t have any credibility in my eyes anymore.
    Not that I ever knew much about them, but this report is outright insane.

  20. if the aba was all about defending liberty, why are they supporting the impending new jersey amendment which will abolish the guaranteed right to bail.

  21. Let me ask you guys this. Bruce pretty much says if you are middle-class or broke, you’re screwed in a self-defense case, 99 percent of the time.

    What about the various “CCW insurance” or “Law Shield” policies out there? Worth a damn, or no? My S/O’s cousin (resident of the great state of Texas) signed up for Texas Law Shield. He’s well-to-do so the cost is negligible. But are such policies worth it? Or should I just have a trusted lawyer on speed-dial and hope the hell he’ll work on contingency?

  22. There’s a move here.

    They will quote this report from time to time. They won’t be able to help themselves. So, hold specific, crisp takedowns of the major and most attractive claims inthis report at ready. Use the right one in the moment, to discredit both the report and whoever is quoting it.

    “Next, we’ll discuss how the recent establishment of violence-coddling ‘stand your ground laws’ – so Says the ABA – has fueled the epidemic of violence in the US.”

    “You mean in their ‘Task force Report’, I presume. Well, it turns out that stand your ground was the law of the land, *articulated* in American and before that English law back to 1800 at least. I can quote you the US Supreme Court saying so in 1895, if you’d like.”

    “But, but, but… (it doesn’t matter.)”

    “Oh, that’s easy to find, and part of a long tradition. ‘Duty to retreat’ is the novel construct. It’s a shame that a buhch of lawyers couldn’t research the law before feeding wrong into to other people.”

    “But, violence. Epidemic. Travon!”

    “Oh, that ‘epidemic of violence’ thing is wrong, too. Violent crime has been going down in the US for decades. Indeed, it’s consistently lowest in places with the least egregious gun laws. It turns out when people can protect themselves, often they do. And more often it never comes to that.”

    “But, but, culture of violence! American romance with guns!”

    “Ummmm. Gun owners are involved in fewer violent crimes than average in the US. There is a culture of violence, but someone who conscientiously practices the 4 rules of gun safety is completely unlike some swaggering gun thug who waves a piece around to make a point. You are talking about two distinct, frankly often opposed cultures. The culture off legal gun owners is on the whole more sober, careful, disciplined and aware than the culture at large.

    I can argue that the romance of stoically taking care of yourself might deserve to be romanced a bit. But, I’d rather talk about the culture of violence we do have, in which (already illegal) guns are only sometimes a means. That culture of violence evaporates where legal gun ownership happens. BTW, the ABA in the stats in their report makes no distinction between a gun used by a mugger and a gun used by a grandmother to stop her being mugged.” (<- I speculate that this last is true – ed.)

    /Meta
    Use their opening to say your piece. Take the false, nonsense part that is most important to answer, and respond to that appealing to an authority not yourself. Anyone posing as "objective" or "reasonable" has to at least give other POV a fair hearing … or they discredit themselves as honest brokers. So, matter of fact, facts are your friends.

    Remember, you aren't debating the advocate in front of you. They've decided long ago. You are informing and educating the audience. So, you don't go off and raise your own issues. Just make them articulate their position and knock the pegs out from under the non-arguments as they come up.

    • Clearly they want them to be publicly available otherwise they would have at least attempted to secure it. You put gates down on exits if traffic isn’t supposed to use them.

      • You’re assuming they want them to be public. Maybe they forgot to set access control correctly?

        Nah, not an option – it’s never ever happened before !

  24. Found their 2012 Form 990 here:
    http://www.americanbar.org/content/dam/aba/administrative/aba/aba_financials/aba_990_083113.pdf

    With program service revenue of 115 million, total revenue of 140 million, they paid the president $162k for ten hours a week, the immediate past president 99k for 5 hours a week (probably $261 salary for the part time president with two people holding the title during the tax year).

    The real money doesn’t go to the figurehead president:
    Executive Director $910k wages plus $26k in other compensation.
    Deputy Executive Director and CFO, $399k +27k,
    Director, Government Liason $312k+12k,
    Sr Director, DC Operations $310k +15k are the only ones over $300k, there’s quite a list that are over 200k. (see page 13 of the .pdf)

  27. Given that black would-be victims invoke Stand Your Ground disproportionately as compared to white would-be victims, I generally accept as axiomatic that anyone who opposes Stand Your Ground laws is racist, and has no problems with would-be black victims dying rather than lawfully defending themselves.

    I would say that my assumption has a high probability of being true when applied to ABA.

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