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Stand Your Ground, But Only If Reasonably Necessary

Photo by Bradley Trahan

In a previous article, the Campbell Law Observer discussed the recent changes to North Carolina’s “castle doctrine,” which created a statutory presumption of a reasonable fear of imminent death or serious bodily harm when a person uses deadly force to defend himself in his home, vehicle, or workplace.  These changes were part of a larger act which made several modifications to various laws governing the use of defensive force and the right to own, possess, or carry firearms.  For the purposes of these companion articles, the focus is on North Carolina General Statutes §§ 14-51.2-14-51.4, which govern the use of defensive force.  As the previous article pointed out, the castle doctrine limits the presumption of death or bodily harm to specific locations, while the stand your ground laws grant the right to use deadly force wherever one has “the lawful right to be.”  Having already examined the castle doctrine, this article focuses on the “stand your ground” laws.

The phrase “stand your ground” is not found in N.C. Gen. Stat. § 14-51.3. The Statute permits the use of force, “except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.  However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has a lawful right to be if . . . [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another” or “under the circumstances permitted pursuant to N.C. Gen. Stat. 14-51.2” (the castle doctrine).  The North Carolina General Assembly has thus limited the presumption of fear of death or serious bodily harm for the use of deadly force specifically to the home, vehicle or workplace.  Outside of those three locations, the person using defensive force must show that he or she held a reasonable belief that deadly force was necessary “to prevent imminent death or great bodily harm . . . .”

Perhaps surprisingly, in light of the controversy surrounding such laws, the new statute merely codifies the right to self-defense that was found in North Carolina’s common law.  Compare the language of the statute as it appears above with the elements required to establish “perfect self-defense” as found in State v. Norris, 303 N.C. 526 (1981): “(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm”.

The right to use force in self-defense is not absolute.  Outside the limits of the castle doctrine, a person using either non-deadly or deadly force bears the burden of proving that the use of such force was reasonably necessary to defend against the “imminent use of unlawful force,” or “imminent death or great bodily harm,” respectively.  There is no duty to retreat (stated positively, one may ‘stand his or her ground’) and use deadly force “in any place he or she has the lawful right to be . . . if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm . . . .”  According to Greg Wallace, Professor of Law at Campbell University School of Law, this “protects the victim by not requiring that he risk attempting to escape before responding.”  And though the first sentence of N.C.G.S. § 14-51.3 does not affirmatively state that there is a duty to retreat otherwise, it is clear that the duty to retreat still applies when the circumstances do not justify the use of deadly force as specified in the second sentence.

This distinction in North Carolina’s statute becomes clearer when compared to the language of Florida’s more explicit “stand your ground” law, which has become the focus of the controversy in the Trayvon Martin case.  The Florida statute provides: “A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”  While the North Carolina statute (and that of many other states) was modeled after Florida’s, some important differences are readily apparent.  For example, under the Florida statute, only a person using deadly force to defend himself or herself is required to show that he or she believed it to be reasonably necessary.   Beyond that, if someone is “attacked,” he or she has the absolute right to “meet force with force” and no duty to retreat.

Elizabeth B. Megale, Professor of Law at Barry University School of Law in Orlando, Florida, strongly criticized Florida’s statute in an article in the American Journal of Trial Advocacy.  “This statute is flawed,” says Megale, “because it places a greater power on the right to possess and use a gun than it does on the most fundamental right of all: life itself.”  As an illustration, Megale asks readers to “imagine two rival gang members cross paths on a public sidewalk where they each have the right to be, they each have a right to stand their ground.  Either gang member can perceive or claim to perceive a threat from the other, and acting in self-defense, use physical force against the other.”  She continues, “Under the current statute, the person acting in self-defense does not need to prove any actual threat.  That person is justified in injuring, or even killing, the other person.  Most disturbing, the individual claiming to act in self-defense is not required to walk away, even if presented with a safe method of retreat.”

North Carolina avoids the problem in the Florida statute observed by Professor Megale by imposing an objective standard of reasonableness for whether a person is justified in “standing his ground” and using force to defend himself in a given situation.  In doing so, our state appears to have struck a reasonable balance between the right of citizens to defend themselves and avoiding unnecessary violence.

Jim Small is a second-year student and staff writer for the Campbell Law Observer.  Jim can be contacted at jdsmall0329@email.campbell.edu

Jim Small, Former Senior Staff Writer
About Jim Small, Former Senior Staff Writer (8 Articles)
Jim graduated from Campbell Law School in 2013 and received his Bachelor of Arts in Prelaw from Bob Jones University in South Carolina. He worked as a Research Assistant to Professor Amy Flanary-Smith, conducted research for McCuiston Law Offices in Cary, NC, and completed an externship in the Research Division of the North Carolina General Assembly.
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