Murder by the (law) book
If you live in one of 38 states, and especially if you are a white male, you may be able to get away with murder — literally.
According to an Oxford University study released in February, as many as 700 homicides committed here each year are potential “legal murders.” In at least six states — Arizona, Florida, Illinois, Mississippi, Oregon, and Texas — this includes shooting an unarmed person who was committing a non-violent property crime of some sort but who posed no threat to the shooter.
This issue is long overdue to be discussed in this column. The Oxford study, a U.S. Supreme Court ruling in June, a 40-minute documentary that began airing on Netflix in October, and a news story earlier this month are among the factors that convinced me to discuss it now.
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At issue is something called the “Stand Your Ground” (SYG) law. A much better name for these laws is “Shoot First and Ask Questions Later.” Florida introduced an SYG law in 2005, and at least 30 states now have a version of it on their statutes. In another eight states, courts have in effect put SYG laws on their books.
Because the High Court’s ruling in New York State v Bruen made it easier for people to carry concealed weapons in public, the number of “legal murders” is likely to climb ever higher.
SYG laws do not work equally for all people. Abused women who shoot their attackers or people of color who shoot a white person in self-defense are more likely than a white male to be convicted despite these laws. The statistics make this painfully clear:
• According to a number of studies, somewhere between 77 percent and 90 percent of incarcerated women are serving time because they defended themselves from a violent attack.
• According to the Giffords Law Center to Prevent Gun Violence, “the odds a white-on-black homicide is found justified is 281 percent greater” than the other way around.
• A 2021 study by the Everytown for Gun Safety advocacy group found that courts in SYG states are five times more likely to absolve a white person for killing a black person than if the situation is reversed.
• According to the Oxford analysis, the legal protections afforded by SYG laws “depend on the race of victims and defendants” or on their gender.
Traditionally, a person is permitted to use deadly force if his or her life is threatened, but only if there is no safe way to escape. This is known in law as the “duty to retreat.” Because “a person’s home is his [or her] castle,” however, a homeowner has no duty to retreat. This is known in law as the “castle doctrine.”
Jewish law, from the Torah on, exonerates a homeowner who kills a home-invader, but only if it is reasonably clear that the intruder had a murderous intent. (See Exodus 22:1–2.) Said the Babylonian sage Rabbi Sheila, “If he comes to kill you, arise and kill him first.” (See the Babylonian Talmud tractate Berachot 58a.) Jewish law even requires a third party to intervene and kill a would-be murderer or rapist — known as a rodef — but only if there was no other way to prevent the crime. (See BT Sanhedrin 57a–b, and the discussion beginning at 72a.)
The SYG laws mooted the “castle doctrine” by eliminating the “duty to retreat” virtually everywhere. As the Giffords Law Center explains it, this makes “it easier to get away with murder” because “these laws too often allow individuals to use lethal force as a first step, rather than as a last resort.”
As noted earlier, however, gender and racial inequities abound in applying SYG laws. Here are two examples to consider.
Eleven years before Florida enacted its SYG law, Utah enacted a precursor version, but it was specifically designed to protect domestic abuse victims who fought back against their abusers. Florida’s law has no such language. (This is true of many other states’ SYG laws, as well.)
On July 31, 2010, a 29-year-old mother of three, Marissa Alexander, was attacked by her estranged husband, Rico Gray, who already had three felony domestic violence arrests on record. Alexander fled into a bathroom, but Gray broke in and began choking her. She then tried to retreat by running into the garage to get to her vehicle to flee the scene. The garage door jammed, however, so she was forced to return to the house. First, though, she took a gun she was legally entitled to own out of the glove compartment for protection. Back in the house, Gray charged at her again. She fired a single shot high into a wall as a warning.
Gray ran out of the house and called the local police department. He accused Alexander of shooting at him and his children. Florida is one of seven states that include a provision preventing law enforcement from arresting a person who claims self-defense unless there was clear and convincing evidence that the claim was false. (The others are Kansas, Kentucky, Oklahoma, South Carolina, South Dakota, and Tennessee.) When police arrived, Alexander claimed self-defense. Nevertheless, she was arrested.
In a 64-page deposition given to prosecutors under oath in early November 2010, Gray admitted that he had lied to police. He not only substantiated Alexander’s version of events, but he boasted about being a serial physical abuser of women.
Because prosecutors would not drop the charges, the case went to trial. The judge, however, rejected her SYG defense because Alexander had gone into the garage and then returned to the house. This, said the judge, proved that she was not in fear for her life even though a jammed garage door prevented her from fleeing.
(I should note that between her arrest in 2010 and her trial in March 2012, George Zimmerman, a white man, was acquitted of killing a black man, Trayvon Martin, under Florida’s SYG law.)
At Alexander’s trial, Gray recanted everything he had sworn to in that deposition. It took the six-person jury just 12 minutes to find Alexander guilty of three counts of aggravated assault. She was later sentenced to three concurrent 20-year prison terms. In large part because of a nationwide “Free Marissa” campaign, her sentence was reduced to three years. She is free today and is a prominent advocate for abused women’s rights.
Alexander is Black, so there were two strikes against her going into trial — gender and race. On the other hand, an Alabama woman, Brittany Smith, is white, so only her gender worked against her. She shot to death an attacker who had been arrested 71 times for various violent offenses that included assaults on women. A physical examination revealed that Smith had more than 30 injuries to her body, including bruises, bite marks, secretions (including on her neck), and evidence of strangulation. Nevertheless, she was arrested. Her case is now the subject of that Netflix documentary mentioned earlier — “State of Alabama vs. Brittany Smith.” It, in turn, is based on a New Yorker magazine investigation.
Smith was released on December 7 after serving 18 months in prison and another 18 months under house arrest.
There are many more examples of how SYG laws are selectively enforced, something the Torah strictly forbids. (See Exodus 12:49, Leviticus 24:22, and Numbers 9:14, 15:15–16, and 15:29.)
The National Rifle Association and other pro-gun groups sold states on SYG laws by arguing that these laws would reduce crime. Instead, these laws actually have increased violent crimes and homicides. According to the Oxford study, for example, SYG laws have increased monthly homicide rates by 11 percent nationally, and up to 28 percent in some states, mainly in the South.
“Stand Your Ground” laws violate at least two of Jewish law’s primary principles—pikuach nefesh (threat to life) and shefichut damim (spilling of blood). Pikuach nefesh, in fact, is considered to be pre-eminent in Judaism. (See, for example, BT Ketubot 19a.)
“Stand Your Ground” laws do not prevent crime; they are a crime. We must actively campaign for them to be removed from the books of every state that has them, and to prevent other states and the federal government from enacting them. New Jersey and New York have no such laws, but Pennsylvania does. A year ago, Rep. Matt Gaetz (R-Fla.) introduced H.R. 6248, a bill that he says would “codify Florida’s ‘Stand Your Ground’ law at the federal level, abolishing the ‘duty of retreat’ when attacked.” He is likely to reintroduce the bill next month once his party becomes the majority.
Organizations battling “Stand Your Ground” include the Brady Campaign to Prevent Gun Violence, the Coalition to Stop Gun Violence, Everytown for Gun Safety, and the Giffords Law Center to Prevent Gun Violence. They are worthy of our support, including in our tax-reducing end-of-year giving plans.
We should also educate ourselves on the issues involved by watching the documentary on Netflix mentioned earlier, “State of Alabama vs. Brittany Smith.”
This is truly a matter of life and death.
Shammai Engelmayer is a rabbi-emeritus of Congregation Beth Israel of the Palisades and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.