An Interview with Attorney Jim Fleming
Interview by Gila Hayes
In the 15+ years since Florida attracted so much attention for passing legislation that removed the requirement to attempt escape in the face of lethal attack, the arguments for and against, and subsequent changes to state laws, have continued to evolve. With several states presently addressing this aspect of use of force law, we recently spoke with our Advisory Board member, lawman-turned-attorney, and instructor Jim Fleming about what “Stand Your Ground” really means and how it affects the legal aftermath of use of force in self defense.
eJournal: Jim, I was taught that deadly force laws are considered “mature” or “settled” and not subject to much change. Now, with all I’ve been reading about new legislation from various states, I’m not sure that applies to laws that do or do not require an armed citizen to retreat before using deadly force in self defense.
For example, recently Ohio eliminated their duty to retreat, lawmakers in Arkansas passed a stand your ground law, the legislature discussed it in Hawaii, New Hampshire expanded their stand your ground law, North Dakota lawmakers sent a stand your ground law to their governor who signed it, Florida and Georgia debated repealing or changing theirs and something of which you’ll be very well aware, if I’m correctly informed, Minnesota debated the pros and cons of modifying its duty to retreat a couple of months ago, too.
When laypersons discuss stand your ground laws, it quickly becomes apparent that there is some overlap in stand your ground and the castle doctrine and sometimes people use the two terms as though they were synonymous. Can we compare and contrast the two concepts to start our readers off with accurate definitions?
Fleming: Simply stated, the castle doctrine states that a person has no duty to retreat before using deadly force in self defense, IF they are inside their own dwelling. This is based upon the common law concept that a person’s home is their “castle.” This obviously goes hand in hand with the legal requirement that a person has a duty to retreat before using deadly force if they are outside their home. Pretty simple, but that is not where the matter ends.
First, the duty of retreat in the public venue is conditional. You are only required to retreat if you can do so safely. You are not required to put yourself at risk by retreating.
Second, the use of deadly force is conditioned upon meeting the elements of justification –
- Your apprehension of an immediate threat of death or serious injury;
- No provocation on your part;
- If reasonable people cast in the same circumstances would also perceive the threat and use the level of force you did, that is deemed to be a reasonable amount of force given the level of the threat.
In the simplest terms, all “stand your ground” laws do is to expand the “no duty to retreat” provision so that it applies anywhere you are, as long as you are there legally, and are engaged in legal activity. You cannot shoot a homeowner who catches you stealing tools from his garage and rushes to stop you with a baseball bat in his hands. You are a trespasser with no legal right to be in the garage, and you are involved in the commission of a crime. Those differences would be pretty easy to understand, but unfortunately that is not the end of the analysis. Each state has enacted its own version of one or the other of these basic legal frameworks.
What do I mean by that? Well, for example twenty-two states have laws that provide civil immunity under certain self-defense circumstances. These are (at least for now) Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maryland, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee, West Virginia, and Wisconsin. Six states have enacted laws that do not provide for immunity from civil remedies in spite of stand your ground provisions. The civil remedies are unaffected by criminal provisions of self-defense law. These states are Hawaii, Missouri, Nebraska, New Jersey, North Dakota, and Tennessee.
In Connecticut, Delaware, Hawaii, Nebraska, and North Dakota, the duty to retreat also does not apply when the defender is in the defender’s place of work. That is also true in Wisconsin, but only if you own the workplace.
And all of this presumes that you are justified in using deadly force in the first place, with legal requirements that vary from state to state. In my home state of Minnesota, for example, we have a separate statutory provision permitting the use of deadly force to prevent the commission of a felony “in the actor’s place of abode.” But which felonies and what is an “abode?” A home? How about a motel room, an apartment, or a tent at one of our really beautiful state parks? What about my detached garage?
That has been developed in case law to include any place where you are currently residing and could be your home, a motel room, a tent at the state park, like I said. There have been some cases where places like that came up and the court has said, “Yes, that would be included in ‘place of abode.'”
eJournal: In light of that possible confusion, it occurs to me to ask, are there other aspects of the duty to retreat that you often see misunderstood?
Fleming: People also quite often confuse “duty to retreat” with “duty of withdrawal,” so let’s make that clear. If the defendant is at fault for some type of aggressive conduct which provoked the fight, leading to the use of deadly force, and then did not withdraw from the confrontation prior to using deadly force, the defendant has no right to stand his or her ground. He or she may not claim self defense if the defendant fails to withdraw before using deadly force, even to save his or her own life. This is not the same principle as the duty to retreat. They are related, but distinct concepts.
eJournal: I remember talking with you extensively about first aggressor issues and we published a two-part series last fall to help members understand that issue. Reader, if you missed it, see https://armedcitizensnetwork.org/initial-aggressor and https://armedcitizensnetwork.org/intitial-agressor-2 . I promise, it is worth your reading time.
Now, Jim, thinking back to all the discussion following Florida’s implementation of their stand your ground law, and as other states followed suit, laypersons concluded that stand your ground provided immunity from prosecution (criminal) – if a judge at a preliminary hearing agreed you acted in self defense. How prominent, in fact, is immunity from prosecution in stand your ground laws – or is it mostly a tool for the defense attorney to use at trial to show justification for what their client did?
Fleming: It is quite prominent, depending upon which jurisdiction you are in and what that state’s law says and where it came from (statute or common – court made – law), and not just a defense tool.
The problem with all of this is each state has its own version, and the vast majority of them are different in one or several ways. Florida does it one way; Texas another, and so on. In order to understand what state “A’s” stand your ground law covers, a person needs to research that specific law and what it provides. It is not hard; they are all online.
For example, I just looked up Washington and there was plenty to see, including this:
Washington courts have consistently upheld our right to remain in a lawful location with “no duty to retreat.” Flight, however reasonable as an alternative to violence, is not required. While the wisdom of such a policy may be open to debate, the policy is one of long standing and reflects the notion that one lawfully where he is entitled to be should not be made to yield and flee by a show of unlawful force against him. See State v. Williams, 81 Wn.App. 738 (1996).
But to try to cover all the differences and nuances in one article would be impossible. You don’t have that much room in this journal.
eJournal: You make an excellent point, so for an update our readers may wish to refer to Eugene Volokh’s article at https://reason.com/volokh/2021/04/08/stand-your-ground-on-track-to-adoption-in-north-dakota/ that includes a link to a more complete article from December 2020. For readers in states that have not passed stand your ground laws, how does the duty to retreat work?
Fleming: As I said previously, it is going to vary somewhat from state to state. I know of no state that establishes an unconditional, no exceptions duty to retreat. States seem to universally recognize that a person should not have to retreat before using deadly force in self defense if the act of retreating puts them in danger of greater harm. So, in those jurisdictions where a conditional duty to retreat exists, the question will be left to the jury to decide first whether, under the circumstances, a duty to retreat existed, and if so, could the defender “reasonably” have retreated out of harm’s way. These are essentially “fact questions” which are left for resolution by the jury.
eJournal: You’ve worked for 37 years as a defense attorney in MN which, if I understand, doesn’t favor stand your ground. How hard is it to convince a jury that circumstances made retreating more dangerous than standing and fighting?
Fleming: The defendant, through his attorney, is going to develop what the scenario was, where he was, and what was going on around him. Then, it is really up to the jury to decide, “Given the information and the evidence that has been provided during the trial to you, jury, you have got to make a determination whether this person was in a position to retreat safely?”
eJournal: Is one’s inability to retreat safely an easy, persuasive part of the story to tell, or has it, in your experience, been hard for jurors to grasp the danger the client faced?
Fleming: That is not difficult to communicate. Let me give you an example from a case I am working on right now. A fellow was leaving a restaurant with his girlfriend and another friend of hers. He almost hit a car that was backing out of a parking spot. The driver of that car got upset, came out, started yelling at the client, and before long was punching him in the head through the window. When that started, the girlfriend, who was riding in the front passenger seat, started screaming and jumped out and ran behind the car.
Here you have a guy who is having blows rained on him through the window of his car. He is seatbelted in so he can’t get out. He can’t go forward because of the other car, and he can’t back up because he does not want to run over the girlfriend. He was in a position where he could not safely retreat. He cannot back up because he can hear his girlfriend behind him, but he does not know where she is. Because he can’t retreat safely, he ends up shooting the guy – doesn’t kill him, but he shoots and wounds him – and he was criminally charged for shooting the guy.
If it comes down to it, the evidence that will be presented to the jury will develop that scenario of where he was, what was going on, the fact that he couldn’t drive forward to get away from the guy and that he couldn’t back up because his girlfriend – for whatever reason – started screaming and jumped out of the car and ran around behind him. He was boxed in. He had a car in front of him and his girlfriend somewhere behind him. There was no way to retreat.
The key to this is safely retreat. This came up in the course of the testimony that I presented as the expert in a different trial last Friday. The prosecutor was trying to argue that the client could have retreated. I contested that. I said, “You’ve got a guy 10 feet away from you who is very agitated, yelling at you, threatening you and suddenly he yanks up his sweatshirt and dives for his waist band, when you are 10 feet away from him.”
The fellow pulled his own gun, shot the guy, and killed him. Well, it turned out that the guy did not have a gun but for whatever reason, he was trying to make the defendant think that he had a gun. That was a fatal mistake for him, but as I explained to the jury, the duty to retreat is conditional. Could you retreat safely? You are confronted with somebody 10 feet away that you believe is going for a gun. Even if the guy didn’t have a gun, that mistake could be made. It is still a reasonable belief that you are in danger. Even the witnesses said that the guy acted like he was reaching for a gun when the client pulled his own gun and shot him.
eJournal: How did the jurors react to your expert testimony?
Fleming: It was impossible to pay specific attention to them because they were not in a jury box. The jurors were scattered around all over the court room. I didn’t know which ones were jurors and which ones weren’t, so I looked straight ahead and focused primarily on just speaking to the crowd.
eJournal: That’s not the only weird trial story I have heard in the new era of COVID-19. Like nearly everyone in the court room, it’s likely none of the jurors had first-hand experience with physical violence. Getting them to empathize with someone who has looked death in the eyes, seems to me to be a huge challenge.
Fleming: I often tell people, “Look, if you think that you are going to start a trial with a jury of your peers, forget it!” If you just went through a deadly confrontation and ended up shooting somebody to save your life, how many people do you think are out there – let alone will be on that jury – who even remotely experienced anything similar to that? If they have, during the jury selection process they are going to get kicked off that jury so fast it will make your head spin. The prosecutor does not want anybody who knows anything about guns. I had at least one prosecutor tell me a long time ago that she would use a peremptory challenge to kick a prospective juror off the jury if she found out he was a member of the NRA.
That means that part of the job of the defense attorney is, through the development of the evidence you are going to present during the defendant’s case, to turn them into a jury of the defendant’s peers. I do that by educating the jurors and sensitizing them to what self-defense issues are and just how fast they develop. It seems to work pretty well.
eJournal: That education and as you called it, “sensitization” seems like a delicate matter. Some people will be repulsed by any discussion of violence; others won’t even understand how it happens.
Fleming: It is dicey sometimes, there is no question about that. It is made harder because there are people out there who will go ahead and react when it is very clear that they had the ability to just get the hell out of there. For example, if they are in a vehicle and the situation is developing across the street, well, they should put that car in gear and get out of there.
Usually, you can tell if it is a situation where this individual just realistically was not going to have the opportunity to retreat. Then, of course, when they are on the stand testifying, part of it is asking him or her, “Did you at that point feel that you had any means of trying to avoid this or retreat away from it and still maintain your own safety?”
They can say, “No, I did not.”
“Tell us why.”
“Well, I was here; that guy was there, he was doing this, we were close, there was no way that I could avoid him, and I couldn’t outrun him” – whatever it is – so the jurors have the opportunity to hear that. Then, of course, the prosecutor has the opportunity to cross examine them and may say, “Well, couldn’t you have done this?”
“No!”
“Well, why not?”
“Because I was blocked,” or, “I was too close to him; I couldn’t outrun him; I was confronting a man with a gun that was 10 feet away from me, if I had turned and tried to run, he would have shot me in the back.”
eJournal: In states without stand your ground laws, how stringently have the courts required self-defense shooters to prove they had no reasonable alternative to shooting?
Fleming: If a duty to retreat exists, the courts are obligated to follow the law and instruct the jury to answer two questions: whether, under the circumstances, a duty to retreat existed, and if so, could the defender “reasonably” have retreated out of harm’s way.
If the duty exists, the court has no discretion in requiring the jury to consider the question. However, “no reasonable alternative to shooting” goes far beyond the question of whether there was or was not a duty to retreat. Remember, it is not the absence of a duty to retreat that justifies the use of deadly force. A person might be confronted with a situation where there is justification for the use of deadly force, and still be first required to retreat before doing so. Those are two separate questions with related but different answers.
eJournal: Ah, good point, although I remain interested in the process through which we reach the determination of “reasonable.”
Fleming: Any time you see the word “reasonable” used in a legal context, think “Jury Question” because reasonableness is a “question of fact,” that only a jury (or a judge, acting as the finder of fact) can answer.
eJournal: People want clear rules, and I see this in myself and the way some of my questions have strayed beyond stand your ground laws. Uncertainty and difficulty determining what will be allowed results in thinking that laws like stand your ground have broader application than they do. I appreciate the way you redirected the conversation.
Fleming: The basic elements of self defense can be found both in judicial decisions (common law) and statutory law. But I must always emphasize that great variation is present in the laws of the various states. There is no uniformity or one size fits all.
For example, all deadly force self-defense laws permit the use of deadly force where the defender honestly and reasonably believed that the assailant had the conscious purpose of killing or inflicting some serious personal injury. But some state pronouncements also permit the use of deadly force to prevent the commission of a serious felony crime. These crimes might be defined as “crimes of violence,” “forcible felony,” “crimes against persons,” or “person crimes,” depending upon where you are. Typically, this means a violent crime perpetrated against a person or persons – assault, rape, robbery, kidnapping.
Georgia defines “forcible felony” to mean murder, felony murder, burglary, robbery, armed robbery, kidnapping, hijacking of an aircraft or motor vehicle. In Florida, “a person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent … the imminent commission of a forcible felony.” In New York, “a person may not use deadly force upon another ... unless
(a) The actor reasonably believes that such other person is using or about to use deadly force, or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery.”
At the same time, in Minnesota, among the list of “crimes of violence” are theft of a motor vehicle and felony level possession of marijuana. You do not, however, get to shoot somebody down simply because they possess more than 42.5 grams of plant-form marijuana, or 0.25 grams of marijuana wax. You don’t get to shoot Oatie Fudpucker because he is trying to steal your car. Isn’t this fun? What’s the best rule? Know where you are, and know EXACTLY what the law allows, and what it condemns.
In literally all jurisdictions, a claim of self defense may be brought if the defender had reasonable grounds to believe that the attacker was about to kill or seriously injure the defender, or a third person – whether or not that belief turns out to be true.
So, if your situation meets these criteria and you had the right to stand your ground, then the matter will be handled according to the procedure employed by the jurisdiction in which the incident occurs. In spring of 2021, self-defense laws in at least 23 states, including Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee, West Virginia and Wisconsin, provide immunity from civil suit under certain self-defense circumstances.
Additionally, at this time, some states, including Arizona, Arkansas, California, Florida, Kansas, Kentucky, Louisiana, Mississippi, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Wisconsin and Wyoming, have replaced the common law “reasonable person” standard, which placed the burden on the defendant to show that their defensive actions were reasonable, with a “presumption of reasonableness,” shifting the burden of proof to the prosecutor to prove the negative, that self defense was not, in a particular case, reasonable and justifiable.
Because of the labyrinth of variables in the law from state to state, it is impossible for us to cover them all during this limited discussion. It is vitally important to remember where you are.
eJournal: If you’re in a state that has a stand your ground law, how do authorities prove stand your ground’s applicability to deciding if a use of force results in charges or trial? Does it take a judge to stop charges against a person who acted in self defense from going to trial? Does it reduce a prosecutor’s likelihood of charging self defense as murder, manslaughter or assault?
Fleming: This is a complicated question, as a result of the unavoidable application of statutory law which varies from state to state, the common law (created in the appellate courts of the various states) interpreting the meaning of those varying statutes, and the Rules of Criminal Procedure, and the common law I referred to above interpreting the application of those rules to specific cases.
If an accused invokes the protections of a stand your ground law, the court will examine the claim to determine whether it is based in fact. A prosecutor in a given jurisdiction, may or may not recognize the application of the stand your ground law to a given case presented by law enforcement to the prosecutor’s office for consideration.
People need to remember, police officers do not “charge” a person with a crime. They do not sign complaints, only prosecutors and judges sign complaints. The police investigate alleged crimes, prepare reports and submit them to the prosecuting authority for consideration of possible charges. So, a prosecutor may decide not to charge a crime, based upon facts that support a stand your ground defense, or the prosecutor may decide to ignore the stand your grounds factors involved, and charge out a crime (by signing a charging document usually known as a “Complaint”) putting the accused to the burden of proving the applicability of a stand your ground defense.
A defendant cannot be “forced” to trial in the strictest sense. The prosecutor might possibly dismiss charges, based upon evidence provided by the defense that makes conviction highly unlikely. The defendant might accept a plea to a lesser charge. People often say, “I won’t have an attorney who plea bargains.” They clearly have no idea how that works exactly. If the prosecutor extends an offer, the defense attorney can be disciplined by the bar if he/she fails to communicate that offer to the client. Only the client is capable of accepting a plea offer.
ALL attorneys engage in plea negotiation, at least those with experience in the profession and a brain in their heads. It is only when the client says, “I will not accept a plea offer under any circumstances!” that a case goes to trial. Having said that, the client always asks, “What are my chances at trial?” There is only one answer to that question, and attorneys know it, whether they are willing to be honest and blunt with their client about it, or not. That answer is, “Fifty-fifty, you are either going to win, or you are going to lose.” Any attorney who gives a client a different answer to that question is blowing smoke.
eJournal: Thinking back to when you were a law enforcement officer (and from conversations with law enforcement officers with whom you discuss things with today), I wonder if stand your ground laws would result in changes to how a self-defense gun use is treated by responding law enforcement?
Fleming: Nope. That is not the job of law enforcement. They respond, they ensure ongoing public safety (which may well include taking the defender into custody), they investigate the incident, and they write up reports to be submitted to the prosecutor’s office. Trying to talk yourself out of being taken into custody is both dangerous, and stupid. Year after year, we see and hear countless horror stories of otherwise innocent people who talk their way into horrible legal problems. Sometimes, an experienced attorney can talk them back out; many times, the attorney cannot.
eJournal: Thank you, Jim, that really helps us understand the scope of our stand your ground law’s influence. Can you synopsize the basic facts about stand your ground that the average gun-owning layperson needs to know?
Fleming: Stand your ground, in essence, simply expands the exception to the duty to retreat found in the castle doctrine from the actor’s residence (or vehicle, or place of business depending upon the jurisdiction involved and the scope of that jurisdiction’s statute or common law) to anywhere that the actor has a legal right to be while engaged in legal activities.
Where a duty to retreat is found, it is universally a conditional duty, “If one can retreat safely.” This question, “Could the actor have retreated safely?” is treated as a fact question for determination by the jury. For example, in the Connecticut Criminal Jury Instructions, the instruction addressing duty to retreat provides that the defendant must retreat if there is an objectively reasonable belief that the attacker will cause death or serious bodily injury, and a retreat won’t unreasonably increase the likelihood of death or serious bodily injury. Where you see the words “objectively reasonable” and “unreasonably” this is an automatic signal that it is a question that the jury will be tasked with deciding.
Obviously, in a stand your ground jurisdiction where the defendant was in a place where he/she had a legal right to be, and was engaged in legally permissible activities, the question of duty to retreat is never going to be addressed to a jury. If, on the other hand, the real question at issue is whether the actor was justified in the use of deadly force in self defense, the option of retreat is not the issue.
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Attorney and Network Advisory Board member Jim Fleming practices law in MN, an attorney of more than 37 years trial and appellate court experience in MN, NE and has argued both civil and criminal appellate cases in the State appellate courts as well as before the Eighth Circuit Court of Appeals. He is the author of several books: Aftermath: Lessons in Self-Defense and The Second Amendment and the American Gun: Evolution and Development of a Right Under Siege. Jim and his wife Lynne Fleming operate the firearms training school Mid-Minnesota Self-Defense, Inc. where Jim is the lead instructor. Learn more about Fleming at http://www.authorjimfleming.com and his law practice website at http://www.jimfleminglaw.com/about-1.html.
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