Bodie, July 1881—The early morning hours found deputy constables Richard O’Malley and James Monahan patrolling the streets of the mining town of more than 5,000 residents in mountains immediately east of the Sierra. Bob Watson and George Center happened by. A young miner, Center was “quiet when sober,” said the Daily Free Press, “but when full of liquor he is a sweeping whirlwind on the downhill grade.” After a late night of drinking he was now “comparatively full.” He was also armed with two Colt Lightnings.
While Watson stopped to talk with the two officers, Center continued on. O’Malley watched him go but then decided that he should follow until the inebriated miner reached home. At the intersection of Green and Wood streets, Center pulled out his revolvers and greeted the break of day with a two-gun salute. When O’Malley caught up with him, Center was standing in the intersection with his hands in his overcoat pockets. “You’ve been shooting. Give me your pistols,” demanded O’Malley.
Center pulled his hands out of his pockets. Each hand held a Colt. “No son of a bitch will take my pistols,” he exclaimed.
Looking into the muzzles of the revolvers, O’Malley slowly backed away. When he was some 15 feet from Center, O’Malley went for his own Colt Lightning. Center opened fire but his drunken aim was wild. One round ripped through O’Malley’s coat, another ricocheted off his gun, and six others missed entirely. At the same time, O’Malley was returning fire. One of the five rounds he got off hit Center in the leg and another struck him in the hand. “As things go lately,” remarked the Daily Free Press, “it was rather poor shooting. But perhaps it is better as it is. The officer is of the opinion that it was red-hot as long as it lasted, and Center shares the same opinion.”
Center was carried to jail, and a physician dressed his wounds. The gunfighting miner was charged with nothing more than disturbing the peace and released. Public opinion even held that deputy constable O’Malley had been overly aggressive, as Center had done nothing more than stand his ground and defend himself. “The question now agitating the public mind is: What right had the officer to demand Center’s pistol?” declared the Bodie Chronicle.
There is no law in this State against carrying concealed weapons, and as we have no town incorporation and town ordinances to prevent the discharge of firearms within town limits, it strikes us that there is no authority vested in any one to compel a citizen to give up his arms, unless he has committed a felony. Officers should be sure they have the law on their side before acting.
Eighteenth- and 19th-century Americans were firmly convinced that when threatened they had no duty to retreat and that they had an inalienable right to arms for their defense. This attitude was a consequence of the frontier experience—the Atlantic seaboard was America’s first frontier—and several rebellions against authority, especially the War of Independence. It was different in England. Use of lethal self-defense required one to prove that the action was justified and that there was no possibility of retreat. Not only were the requirements for self-defense different—when deadly force was employed—but the burden of proof was on the person who defended himself. The logic behind this was anathema to Americans. The English crown wanted a monopoly of violence. The man who committed a homicide in self-defense, even after he had “retreated to the wall” (fled as far as he possibly could), was guilty of a crime, and needed a royal pardon before he was relieved of the consequences. According to Blackstone, “justifiable homicide” was a determination only for the execution of a criminal for a capital offense, the unavoidable slaying of a fugitive, and the killing of a person resisting arrest by an officer of the law.
In 1856 Joel Prentiss Bishop’s Commentaries on the Criminal Law was published in Massachusetts. Richard Maxwell Brown, a leading historian of violence in the United States, has called the textbook “the first truly original American work on the criminal law.” It certainly broke with Blackstone and followed American tradition. Bishop argues that, not only is there no duty to retreat, but there is a duty to resist. By 1892 his textbook was in its eighth edition. Published at almost the same time as Bishop’s work was Francis Wharton’s Treatise on the Law of Homicide in the United States. Wharton, like Bishop, argues that there is no duty to retreat. His work also went through several editions and was considered a standard legal reference.
Nonetheless, there were judges and prosecutors who were eager to expand the authority of government and revert to English common law. They challenged the stand-your-ground tradition that had developed in America. The two most-cited and influential cases arising out of a reversion to English practice were Ohio’s Erwin v. State (1876) and Indiana’s Runyan v. State (1877). In the former, James Erwin had been convicted of second-degree murder. He appealed on the grounds that the judge had instructed the jury that the defendant had a duty to retreat. Ohio’s state supreme court reversed Erwin’s conviction, saying that he had no duty to retreat and had been exercising self-defense as a “true man” and was “not obliged to fly” from his attacker. Moreover, Justice George McIlvaine, writing for the court, declared that a true man was free to stand his ground against any assailant, regardless of consequences.
At issue in Runyan were again the judge’s instructions to the jury. The judge had told the jury that, “if the person assailed can protect his life and his person by retreating, it is his duty to retreat and thus avoid the necessity of taking human life.” Acting on these instructions, the jury found John Runyan guilty of manslaughter. Runyan appealed. The Indiana state supreme court reversed the conviction, saying, in the words of Justice William Niblack, that the right of self-defense is “founded on the law of nature; and is not, nor can be, superseded by any law of society.” Runyan, said Niblack, was “not obliged to retreat . . . Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed.”
Both state supreme-court decisions declared not only that there was no duty to retreat but that a real man would stand his ground. Both these points were reinforced by decisions in other states, particularly Missouri’s State v. Bartlett (1902). The Missouri supreme court opined that standing one’s ground was a sacred right of human liberty “as dear in the eye of the law” as human life, and the “idea of the nonnecessity of retreating from any locality where one has the right to be is growing in favor, as all doctrines based upon sound reason inevitably will.” In State v. Gardner (1905) the Minnesota supreme court emphasized the role of the frontier and firearms in standing one’s ground. Justice Edwin Jaggard described the appellant, Joseph Gardner, as “a typical pioneer, industrious, courageous, and self-reliant.” Jaggard said that the duty to retreat originated in medieval England and had no application in America, as in the Gardner case where
experienced men, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or to do great bodily harm. . . . Self-defense has not, by statute nor by judicial opinion, been distorted, by an unreasonable requirement of the duty to retreat, into self-destruction.
In Miller v. State and Bromley v. State (1909) the Wisconsin Supreme Court echoed Jaggard’s view, saying the duty to retreat was an English doctrine and obsolete, and that self-defense was a “divine right,” and a man was entitled to stand his ground. In 1917 the Washington Supreme Court in State v. Meyer declared that standing one’s ground was “more in keeping with the dictates of human nature” than taking flight.
In the meantime, the U.S. Supreme Court had taken on the issue from a case arising out of Indian Territory, Beard v. United States (1895). Two white men, Will Jones and Babe Beard, got into a dispute over cattle. Fearing that Jones would pull a revolver from his hip pocket, Beard wielded a shotgun like a club and crushed Jones’ skull. In Judge Isaac Parker’s courtroom in Fort Smith, Arkansas, a jury found Beard guilty of manslaughter. Beard appealed the verdict on the grounds that Parker had instructed the jury that the defendant had a duty to retreat. The Supreme Court ruled unanimously that Parker had erred in his instructions and overturned the verdict. Writing for the Court, Justice John Harlan reasoned,
The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault and had at the time reasonable grounds to believe and in good faith believed, that the deceased intended to take his life or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such way and with such force as, under the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury.
Justice Harlan cited Bishop’s Commentaries on Criminal Law and Wharton’s Law of Homicide, among other works, and Erwin v. State and Runyan v. State, quoting the “true man” and “American mind” passages from those decisions.
Nonetheless, there were always lower-court judges who continued to emphasize the old English common-law notion of a duty to retreat. Such occurred in a murder trial that led to Brown v. United States (1921). Robert Brown and James Hermes had been going at each other for months when things finally came to a head on a construction site for a post office. Wielding a knife, Hermes came at Brown, who retreated but only to grab his gun that lay on his coat several yards away. When Hermes slashed at him with a knife, Brown opened fire, striking Hermes four times and killing him. Since the killing occurred on federal property, federal prosecutors took control of the case and brought Brown to trial in a federal district court instead of a Texas court.
After the judge instructed the jury that “the party assaulted is always under the obligation to retreat, so long as retreat is open to him, provided he can do so without subjecting himself to the danger of death or great bodily harm,” Brown was convicted of second-degree murder. He appealed unsuccessfully to a federal circuit court and then to the Supreme Court. By seven to two, the Court held for Brown. Writing for the majority was Oliver Wendell Holmes, who may not have been a product of the frontier—he was a Boston Brahmin and Harvard graduate—but who did fight courageously at Antietam and Chancellorsville, and in several other Civil War battles. He stated that
if the defendant had reasonable grounds of apprehension that he was in danger of losing his life or of suffering serious bodily harm from Hermes he was not bound to retreat. . . . [A] man . . . may stand his ground and . . . if he kills [his assailant] he has not exceeded the bounds of lawful self-defense. Detached reflection cannot be demanded in the presence of an uplifted knife.
Shortly after Brown v. United States, Holmes wrote to a prominent political scientist, Harold Laski, saying that in Texas the people understood the issue well, that “a man is not born to run away.” The law, continued Holmes, “must consider human nature and make some allowances for the fighting instinct at critical moments.” Holmes knew all about honor, a fighting spirit, and the real world.
Not all judges and prosecutors were similarly informed, though. There were always those who wanted men to conform to behavior required by the crown in merry old England. This was particularly galling when a homeowner was prosecuted for not retreating and shooting an intruder who had broken into his home. Because of such cases, which were widely publicized during the 1970’s when crime had increased dramatically, state legislatures began to pass laws that supported what was popularly called the Castle Doctrine, as in a man’s home is his castle. Under this doctrine a person has no duty to retreat inside his own home and is protected from prosecution when shooting or otherwise attacking an intruder who has unlawfully entered the person’s home. Some three-dozen states now have Castle laws. California’s “Home Protection Bill of Rights” (Penal Code Section 198.5), enacted in 1984, is typical:
Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters . . . the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
Moreover, the concomitant jury instructions (CALCRIM 506) state in part,
A defendant [the person defending the home] is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger . . . has passed. This is so even if safety could have been achieved by retreating.
In many states, enacting Castle laws should not have been necessary. They already had the precedence of case law that upheld the doctrine of Stand Your Ground. However, activist judges do not seem to respect stare decisis.
More recently, states, especially in the West and the South, have expanded the Castle Doctrine by enacting statutes that include areas outside the home. There are now 17 states with stand-your-ground laws or, in the case of Washington, a state supreme-court decision unequivocally enunciating the doctrine. In State v. Redmond (2003) the court said, “The law is well settled that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be.”
The only New England state with a stand-your-ground-law is the Granite State, which passed the legislation in 2011 over the governor’s veto. “I’m glad New Hampshire has this law,” said state representative Jennifer Coffey (R-Andover), who cosponsored the bill. “Like I said, nobody should be a victim of a crime and then be revictimized by facing a criminal charge if they are trying to defend themselves.” New Hampshire has a long history of protecting American freedoms, including the right to bear arms. The state’s gun policies compare favorably with those of Arizona or Idaho or Montana or Texas. Not by accident, New Hampshire’s state motto is “Live Free or Die.”
Stand-your-ground laws reflect the American character and the experience of generations of American pioneers, who conquered one frontier after another. Those pioneers had pluck, were a bit ornery, and were not about to retreat. In self-defense or for honor, they were ready to stand their ground and fight. As more than one frontiersman was quoted, “I’ll die before I’ll run.”