FUNK: Stand Your Ground Laws Don’t Mean You Can Fire Blindly Into A Crowd

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T. Markus Funk Contributor
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The joyfully raucous Feb. 14 celebration of the Kansas City Chiefs’ Super Bowl win, attended by up to one million fans, was violently disrupted by a hail of bullets outside of Kansas City’s historic Union Station. When the smoke cleared, one woman watching the event with her family was left dead; nearly two dozen others, mostly children, were injured. 

As happens too often in the wake of such national tragedies, some segments of the media focused on the purported extremism of Missouri’s self-defense law. Unfortunately, they once again missed the mark.

The two adult shooters (there were also two juveniles involved) at the center of this tragic event — 18-year-old Dominic Miller and 23-year-old Lyndell Mays — were arrested on charges of second-degree murder, unlawful use of a weapon, and armed criminal action. Both reportedly will attempt to portray their actions as justified self-defense, relying in part on Missouri’s stand your ground law.

The unsurprising media barrage that followed the Union Station gunfire almost immediately took aim at Missouri’s self-defense law. 

ABC News, for example, reports that Missouri’s stand your ground law provides “even broader self-defense rights regardless of the location.” The Associated Press similarly claims that Missouri’s stand your ground law “expand[ed] the legal use of guns in self-defense,” and a Kansas City Star opinion piece argues that “stand your ground laws promote the idea that people should shoot first, and ask questions later.” Finally, ABC News quotes an expert who opines that “[c]ollateral damage under Missouri law is excused if you’re actually engaged in lawful self-defense and there’s other folks injured.” Other media outlets advance the same or similar arguments. 

The clear message is that stand your ground laws like the one in Missouri somehow “expand” or “broaden” the right to self-defense, generally, and that in the Super Bowl shooting case, specifically, Missouri’s law could offer the defendants a complete – and, by implication, undeserved – shield to liability. This reporting is mistaken on both counts.

It is true that roughly a quarter of U.S. states make a successful self-defense claim unavailable when the defender facing a physical attack could have retreated in complete safety. As Missouri’s stand your ground law puts it, the person being attacked need not retreat from where the person “has the right to be” before resorting to defensive force, even if safe retreat was available. Those, like Professor Robert F. Schopp, who support these laws for philosophical and moral reasons do so largely because they view individual autonomy as a categorical, nonderivative, non-instrumental, and, most significantly, non-compensable fundamental value.

It is, however, worth noting that, in the real world, such a 100 percent safe retreat option is exceptionally difficult for prosecutors to prove. Although not discussed in media accounts, even in the Super Bowl shooting scenario it is far from clear that any of the shooters, standing in the middle of a large crowd, could have escaped to certain safety by simply running away once guns were drawn. 

It is certainly reasonable and fair to question the public policy wisdom of stand your ground laws (something I have done on various occasions). Yet, it is simply incorrect to suggest that these laws introduce some sort of laxness into the standard legal elements a defender must meet for the self-defense to provide legal cover. Using the example of the Super Bowl shooting defendants, regardless of whether stand your ground applies, Miller and Mays will still have to show that they were not the initial aggressors, and that they had reasonable beliefs that deadly force was immediately necessary to ward off death, serious physical injury, or a forcible felony. 

They will also have to show that they directed their force at the person(s) presenting this unlawful threat (as opposed to a mother surrounded by her family and other children in the crowd). 

True, Missouri provides narrow exceptions to criminal liability in cases of mistake of fact, necessity, and duress. But, media claims notwithstanding, it does not grant broad permission to shoot wildly into a crowd, almost certainly will not sanction the killing of bystanders as legitimate self-defense, and does not allow the person(s) who provoked the attack to later successfully cloak themselves in claims of self-defense. 

The unfounded assertion that Missouri self-defense law somehow necessarily treats the killing and maiming of innocent bystanders as little more than “[c]ollateral damage,” therefore, simply is wrong.

And lest the public buy into the media narrative that U.S. states with stand-your-ground laws are outliers, consider that legally, politically, and culturally diverse countries ranging from Argentina, Botswana, Canada, and France to England, Ghana, Indonesia, Japan, Spain, and Sweden similarly reject a categorical requirement that the defender either avoid conflict or retreat once the conflict is imminent.

Finally, to the extent Miller or Mays acted recklessly when they, in their purported efforts to “defend” themselves, sprayed bullets into the crowd (and, based on the facts shared with the public, their conduct appears to present a textbook example of recklessness), they will, at a minimum, be looking at convictions for first-degree involuntary manslaughter

Law enforcement must still work out precisely what happened to trigger the horrific Kansas City shootings. Related debates over the wisdom of Missouri’s gun laws — and how those laws may have played a role in the shootings — are also fair game. But rushed attempts to leverage these terrible events into another opportunity to criticize a state’s self-defense law are ill-timed and, more to the point, substantively off base.

Markus Funk (@TMarkusFunk1) is a former Chicago federal prosecutor who taught criminal law at institutions such as Oxford University (where he earned his Ph.D.), Northwestern, and the University of Colorado. In private practice with an international law firm, he is the author of the book Rethinking Self-Defense: The “Ancient Right’s” Rationale Disentangled (Rowman & Littlefield, 2021) and numerous scholarly and mainstream articles on defensive force.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.