stand your ground laws

[bennysdad]

Nebraska has "duty to retreat" law. Should Nebraska move towards stand your ground laws. Does Nebraska have self-defense laws on the books that are similar to stand your ground laws? What is your opinion and/or what is fact?

"Many states have enacted so-called stand your ground laws that remove the duty to retreat before using force in self-defense. Florida passed the first such law in 2005, generally allowing people to stand their ground instead of retreating if they reasonably believe doing so will "prevent death or great bodily harm."

Other states followed with laws specifically affirming one's right to defend themselves, even outside of their homes and with deadly force if necessary. The wording of each state's laws will vary, but typically require you to have the right to be at a location. State self-defense laws may also overlap, but generally fall into three general categories:

Stand Your Ground: No duty to retreat from the situation before resorting to deadly force; not limited to your property (home, office, etc.).

Castle Doctrine: Limited to real property, such as your home, yard, or private office; no duty to retreat (use of deadly force against intruders is legal in most situations); some states, like Missouri and Ohio, even include personal vehicles.

Duty to Retreat: Must retreat from the situation if you feel threatened (use of deadly force is considered a last resort); may not use deadly force if you are safely inside your home.
Here are the states that have passed stand your ground laws:

Alabama
Alaska
Arizona
Florida
Georgia
Indiana
Kansas
Kentucky
Louisiana
Michigan
Mississippi
Montana
Nevada
New Hampshire
North Carolina
Oklahoma
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Utah
West Virginia

Note: Some states have adopted stand your ground-like doctrines through judicial interpretation of their self-defense laws -- but they are not included on this list.

Some states have self-defense laws on the books that are similar to stand your ground laws, often with at least one key difference. These laws generally apply only to the home or other real property (such as an office) and are often referred to as "castle doctrine" or "defense of habitation" laws. Most U.S. states have castle doctrine laws, including California, Illinois, Iowa, Oregon, and Washington.

Duty to Retreat States

On the other end of the legal spectrum, some states have laws imposing a duty to retreat. A duty to retreat generally means that you can't resort to deadly force in self-defense if you can safely avoid the risk of harm or death (by running away, for example). If that is not an option, say if you were cornered or pinned down and facing serious harm or death, then you would be authorized to use deadly force in self defense. The following states impose some form of duty to retreat before using deadly self defense:

Arkansas
Connecticut
Delaware
Hawaii
Iowa
Maine
Maryland
Massachusetts
Missouri
Minnesota
Nebraska
New Jersey
New York
North Dakota
Ohio
Rhode Island
Wisconsin
Wyoming

Note: Some states with castle doctrine laws also include a limited duty to retreat (like if simply going into your house and locking the doors is sufficient for self-defense).
New laws on self-defense crop up all the time. The statutes vary widely from state to state and may have minor, but crucial differences in their language and application. For an in depth understanding of self defense laws and how they work in your state, consider contacting a local criminal law attorney."


link: http://criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-ground-laws.html

Stand you ground states image attached.

[Mali]

Nebraska has "duty to retreat" law. Should Nebraska move towards stand your ground laws. Does Nebraska have self-defense laws on the books that are similar to stand your ground laws? What is your opinion and/or what is fact?

Duty to Retreat: Must retreat from the situation if you feel threatened (use of deadly force is considered a last resort); may not use deadly force if you are safely inside your home.

Sorry, but there is no requirement for me to retreat from a situation in my home.  I have the legal right to "stand my ground" and protect me and any in my house legally from an intruder with the level of force I deem necessary. I have heard the "Duty to Retreat" claptrap for a long time, but it is just not true.  I cannot quote you the actual law but I do know it is law as it is covered in the Concealed Carry classes and is on the CC test as well.
If I remember we are also not required to retreat in public, but have the right to use force if it is in defense of ourselves or others.

I have no doubt we will have others post here shortly that will be able to quote the laws.

[bennysdad]

Sorry, but there is no requirement for me to retreat from a situation in my home.  I have the legal right to "stand my ground" and protect me and any in my house legally from an intruder with the level of force I deem necessary.

My concealed handgun permit instructor stated that if someone illegally enters my house, it is my obligation to retreat to a back bedroom (someplace safe) and call 911. He also stated that I do not have the right to confront the aggressor unless they come into my safe area and I feel that they will cause great bodily harm or death to me or the people with me.

I understand the right to "stand my ground". I had a Florida Concealed Carry License for 10 years. My understanding of Nebraska law, is that we have a duty to retreat, not stand your ground.

My understanding of Nebraska law is that we have a duty to retreat, if we can, in public, unless we are cornered, have no way to retreat further and then deadly force could be used if we feel that our life is in danger or great bodily harm could occur. Also to avoid all confrontations if possible.

[barmandr]

Your instructor was absolutely wrong.  You have no duty to retreat whatsoever in your home.  You must still be presented with a bona fide threat before you can use deadly force though.  Someone simply breaking into your home does not automatically justify the use of deadly force.  As far as the duty to retreat in public, your escape must be 100% safe to be considered under the duty to retreat.  If it is not, you aren't required to leave.   

[AAllen]

First, the folks talking about retreating in the home are correct, in Nebraska there is no duty to retreat in your home if you are under threat of sever bodily harm, death, rape or being kidnapped.  That is based upon your belief (in the written law) but the courts have added a reasonable man test to this and is another subject for discussion. the complete law is Chapter 28 section 1409, http://nebraskalegislature.gov/laws/statutes.php?statute=28-1409 .  I would recommend attending Chris Zeeb's class on legal aspects of lethal force (you apparently had an instructor that does not understand Nebraska Law and is using a course written for another state), it goes into much more detail than what can be expressed in forum posts with references to actual Nebraska Case Law.

[AAllen]

That said "Stand Your Ground" is an area for discussion and it goes beyond what is considered "Castle Doctrine" and an understanding of the differences is important, and the quoted article is fairly accurate in pointing out the differences: "Castle Doctrine" is defense in the Home (some other area's may be included in differing state laws but the home is the focus) and "Stand Your Ground" is defense outside the home, or put another way "Any place a person has the legal right to be."  Yes those protections are missing from Nebraska Law and it has been an issue that has been worked upon in the past and continues to be today.  Just because there is not a bill sitting in front of the Legislature does not mean it is a dead issue, there is ongoing educational efforts as well as other legislation that is working to set the table for discussions on this type of legislation.  In any discussion of this it is good to take a look at the history of the subject, Nationally as well as what has gone on here in Nebraska to get a through understanding.

Now for the way back machine: Nationally self defense was pretty much an issue that not a lot of laws were written about before the early to mid 1900's, it was pretty much understood that if your life was threatened you had a "Natural Right" to defend yourself.  In the late 1800's and early 1900's there were in fact US Supreme Court rulings that upheld those rights with language such as:

"Justice Oliver Wendell Holmes stated that “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. From Brown vs. US (1921)”

This time period in fact had many Supreme Court Rulings Dave Kopel has a nice article about several of them here: http://www.davekopel.com/2A/LawRev/Self-Defense-Cases.htm

This brings us to the period that is post "New Deal" where at the Supreme Court level things fell away.  Many of the forces that took up the mantel of limiting self defense came from the same crowd who had previously worked upon removing the right to keep and bear arms, specifically those who were out to remove the ability for freed slaves to defend themselves from the KKK and others, this is why you will find most of these duty to retreat laws having a history of coming out of what is considered the South, and most of the "Stand Your Ground" laws also coming from that region.  The duty to retreat laws really got a foothold in the late fifties early sixties with growing social unrest and the push for racial equality gaining force, with several states passing these laws during that time period.  In Nebraska this wave hit in the mid sixties with there being a lot of push back, in fact in the late sixties the Legislature passed a law that to paraphrase greatly said; if you believe he needs killing you can kill him.  This law was challenged in court and was taken to the Nebraska Supreme Court (~1970) who struck it down because it gave the power be judge, jury an executioner to the general public which is a power reserved to the courts in the Nebraska Constitution.  This led to the passing (1972) of the self defense statutes pretty much as they are today on the books with far to few revisions (or too many depending upon view of what the revisions are).

As the article you quoted shows there are many states that did not change there laws and in fact yet today rely upon what the courts have previously ruled on as their basis for self defense laws.  At least one that is not noted on the map you have posted is California, who through court rulings basically gives a person the ability to defend themselves anyplace they may be facing the threat of violence (severe, similar to the legal terms used in Nebraska Law) as long as a reasonable man would find the threat to be there.

There has also been a couple states that passed "Stand Your Ground" legislation that have since repealed those laws (such as I believe Louisiana) because after the rush to pass the law discovered that they had stronger protections through what laws were already on the books and through case law (similar history to California on case law in Louisiana).

[AAllen]

Quick note, there is more to this history than what can be posted in a forum post, or even a blog post or single article.  There really is enough case law and legislative history for books and entire legal classes to be taught on these issues.  As you can probably also tell there will be a lot of disagreement on what a ruling or law says or means or what spurred it because there are lots of little things that all go into the making of these things, and one persons motivations may not be the same as another's.

[AAllen]

First lets make certain we are all using the same terminology, when I say "Castle Doctrine" I am referring to the original forms of legislation that coined that term.  The ability to defend oneself or others inside your home without retreat.  Some states as a matter of property law extend that to places outside the four walls of the home to include outdoor property that may or may not be enclosed and even into vehicles.  Those area's get included not because of something written into the "Castle Doctrine" but because of how those states laws and their interpretation is applied to property.  Because there has never been a requirement for retreat in Nebraska it can be said we already have the "Castle Doctrine" even though no piece of legislation has been passed to secure it, no need to it had never been taken away.  This is an important thing to understand because when we contact Senators asking for the "Castle Doctrine" they use that same terminology and those opposed to us simply reply we already have it.

"Stand Your Ground" this gives the ability to defend yourself anyplace you legally have the right to be without first retreating.  This got included into some of the later states legislation that passed the "Castle Doctrine," and because of that many people ask for the "Castle Doctrine" when what they really want is to protect themselves outside the home.  Language is a powerful tool, and is often used against us as it does when we ask for the "Castle Doctrine" when what we really are wanting is "Stand Your Ground" (and civil protections which will be further separately discussed).  As pretty much everyone around here can understand "Stand Your Ground" as terminology has taken a beating in the press ever since the Zimmerman self defense shooting in Florida (not going into any coverage of that, it has been beaten to death elsewhere and the majority of the press coverage has no idea what they are talking about), and as such that terminology should be avoided to keep whatever action you are after from getting tied to that bad press.

"Civil Protections," this is pretty straight forward.  If someone must use force in self defense, the criminal victim can not be sued by the criminal perpetrator or their family for the actions they needed to take to defend the well being of themselves or others.

"Reasonable Man," this would be a person of sound mind looking at the situation as a detached ordinary person of the community would act in certain circumstances.

"Affirmative Defense," Removes the burden of proof from the prosecutor, the defendant must admit to the crime and then prove by a "Preponderance of the Evidence" that their actions were justified.  A "Preponderance of the Evidence" is lower level of proof than "Beyond a Reasonable Doubt," but the table have been turned and the prosecutor gets the easy path.

Now lets talk about recent history here in Nebraska, we have already covered the basics of getting to what is the basis of our self defense laws and how we got here and the National forces that were in play as well as touching upon the recent National changes taking place.

[AAllen]

So when the "Duty to Retreat" laws were sweeping the nation Nebraska thumbed its nose at them, and in the process put us into a position where new law needed to be written to get rid of what had been passed and determined to be unconstitutional.  So after a couple years work a bill gets passed in 1972 to do that, remember this is the time period where we had "Black Panthers" blowing up cops in Omaha and violent protests taking place in North Omaha.  These actions/activities colored the decision making taking place in our Legislature.

Even with that backdrop our Senators removed the duty to retreat in one's home from the bill that was passed (earlier versions had it), and they kept language that when someone had to retreat they had to know that they could in reasonable safety as well as allowing the decision making of the person using deadly force to defend themselves to be justified if the actor believes that such force is immediately necessary.  This later was changed by the Nebraska Supreme Court to having a higher threshold of a "Reasonable Man" when they wrote the standard jury instruction.  This was challenge a couple years ago and the court came back saying that yes the instruction is most likely wrong, but it has been used for so long now that they would not change it unless the Legislature took action to make changes to the law.

This really saw no legislative action until recently, between the early 70's and mid 80's there was not only not really much interest in self defense laws there also really wasn't much about Firearms Laws here in Nebraska as well, there were always a few people out there but nothing major was taking place.  Come round to the 80's and we saw a changing landscape Nationally, which in turn brought Gun Owners back to the forefront.  The NRA which had previously been supportive of most gun laws had internal challenges to change course, and several other National Organizations dedicated to Gun Rights were formed.  Against that backdrop a group of dedicated Nebraskan's got a ballot initiative passed in 1988 that protected our right to keep and bear arms which is tied to the ability to provide for security and defense of oneself, family, home or others.  What those dedicated few were after was to make Concealed Carry legal in Nebraska (yes true Constitutional Carry) but before a case could be put together and funded a criminal got a case brought to the Supreme Court and the Court ruled that the Legislature does not violate this right as long as it is "Reasonable," which Michael Bloomberg or Diane Feinstein would tell you a complete ban is "Reasonable," and any long standing law would be held as "Reasonable."

[AAllen]

That ballot initiative really gave life to what up to then had been a small faction wanting Concealed Carry and caused some growth.  Most sessions after that had in some form a bill introduced to legalize Concealed Carry, with activists finally getting that passed in 2006.  Though there were a lot of people coming together over the Concealed Carry issue here nobody was really doing anything with Self Defense laws.  Why fight over a law that makes no difference anyway, nobody has the tools of defense outside their home.  After the Nebraska Concealed Handgun Permit Act was passed it almost immediately came under attack, and the loosely organized groups here in Nebraska were attempting to fight them.  You could say the birth of the NFOA came out of these fights, the people who formed the NFOA came together getting the CHP Act passed, and to a degree got our first black eye with Ashford and the LB97 trick (another story for another time).  Because there was no real organization keeping gun owners informed and mobilized, the NRA was basically more of a hindrance than support in getting things done, pretty much all the groups/people doing there own thing finally kind of came together.  After that coming together we have been fighting this battle on multiple fronts, including attacking and going after changes to Nebraska's Self Defense Laws.

The first real attempt was basically taken from one of the Southern "Castle Laws" that had been all encompassing, and had been taken to a Senator by the NRA.  It got beaten up badly, because it did not work with the way the rest of Nebraska's laws are written.  As much as we try you can not just take a bill that passed in one state and try to shoehorn it in in another, so much work was needed.  After that the NFOA started what we refer to as "The Victim Protection Act" which on its third attempt was rewritten (Chris Zeeb, the founding President of the NFOA is primarily responsible for this bill) by taking Nebraska's existing laws and writing them to remove the duty to retreat in public, provide for civil protections, address the "Affirmative Defense" issue and try to back door some language on the "Reasonable Man."  In 2012 we got a deal offered to us (this had been brokered by the NRA, who did not consult those who were working or proposed this legislation but worked in private with an antigun Senator) to get civil protections out of this bill, what we got is the placeholder that we have today.

Has the desire and efforts to change our self defense laws ended there, no there have been lots of discussions educating Senators about the issues, a couple of Senators have put out poorly written bills (making it certain they will not escape committee) and the work continues today.  But until we can get another strong supporter onto the Judiciary Committee, and come up with new language (we do not want this to be "Stand Your Ground" that language sets things up for failure) the behind the scenes work must continue.

I know this total package of posts is long, but you have no idea how much information was glossed over or skipped completely to get it to this sum what readable point.

[bennysdad]

Excellent information AAllen good job.

It would be good for members to understand the history of laws, the current laws and where the laws are headed according to NFOA.

I believe that having  "Stand Your Ground", the "Castle Doctrine" would not be needed. Different wording in the laws varies by state and could make a law powerful, fitting our needs.

Maybe "Castle Doctrine" legislature could be written that has "Stand Your Ground" wording in it since "Stand Your Ground" opposition are attacking. Maybe creating legislature around "self defense" that has parts of "Stand Your Ground" in it?

I would like to see the elimination of civil liability for the permit holder from the criminal aggressor.

[AAllen]

Bennysdad, for people that want to be involved in this fight or for firearms owners rights in general I recommend 2 things: get in touch with Rod Moeller who is the President and Chief Lobbyist for the NFOA, he knows up to the minute what is going on and what help and where its needed as well as what the current thoughts from the Senators are.  Second is study and learn, a good place to get started at that besides the internet is https://www.saf.org/?espresso_events=gun-rights-policy-conference-2015 .

[Dan W]

Andy, thanks for taking the time to type all that out for us.

[Husker_Fan]

Excellent write up, Andy.


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