Las Vegas Sun

August 18, 2019

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Guest Column:

Expansions to Nevada’s self-defense law are unnecessary and dangerous

The law values human life by punishing people who take it. Against this landscape, self-defense — or the law of justifiable homicide — carves out a narrow exception. In Nevada, as in most states, it is justifiable to kill another person if that person poses an imminent threat to you. In other words, you can legally kill someone if that person is about to kill you, or if the killing is done in defense of your home or another person, or to avert the threat of a violent felony or a violent home invasion. Under Nevada law, you are not required to retreat before acting in self-defense, as long as you didn’t start the fight. This is what’s commonly called a “stand your ground” law, and about half the states have a similar law.

The exception is narrow, and for good reason. Very few things are worth a human life, and so it is only legal to kill when the threat is urgent and severe. The most important safeguard, though, is the legal process itself. In order to claim the protection of self-defense law, a person must prove to a jury that the threat was imminent, the killing was necessary to prevent the threat, and the fear was reasonable. The jury’s job is to make sure no one can kill a person out of anger, revenge or unreasonable fear, or target someone and then claim they were afraid. It’s not easy to get away with killing someone, and that is as it should be.

The legislature is now considering a bill that would expand Nevada’s self-defense law. The bill, SB 175, would make self-defense available in more circumstances and would make it easier to prove. The bill would make it legal to kill someone who tries to enter or steal your vehicle. Because the law is not limited to occupied vehicles, it would make it legal to kill in response to the theft or attempted theft of a car, boat, motorcycle or other “self-propelled” vehicle.

It also would change the way self-defense claims are made by creating a legal presumption of reasonable fear anytime a person tries to enter a home or motor vehicle. In these circumstances, a defendant wouldn’t even have to present the self-defense claim to a jury. The law also has a civil immunity provision, which means a victim’s family can’t be compensated in a civil suit if the killer invokes self-defense.

Expanding self-defense law is both unnecessary and dangerous. It is unnecessary because Nevada law already provides that a killing may be justified if done to prevent a home invasion, or in any other circumstance where a person reasonably fears for his or her life (including, for example, breaking into an occupied car). There is no reason to legalize killing a person who threatens an unoccupied car but does not threaten a person.

There is also no reason to change the process. Prosecutors have discretion, so if the self-defense claim seems solid, the prosecutor may choose not to file charges at all. Changing the presumption would take these cases away from a jury and would tie a prosecutor’s hands, leaving little or no safeguard to prevent people from killing out of vengeance or unreasonable fear.

It is dangerous because expanding self-defense law could lead to more homicides by sending a signal that they won’t be punished. One study found that murder rates increased by 8 percent in states that adopted “stand your ground” laws between 2000 and 2010. (The same study found that the new laws did nothing to deter burglary, robbery or aggravated assault.) Mentally ill people and children, who may wander into yards or near homes, are especially vulnerable to laws that expand the right to kill in defense of your home and property. Homeless people who approach vehicles will be similarly vulnerable to a law that permits killing in defense of your car.

Any expansion of self-defense law will also disproportionately impact people of color. There is evidence that self-defense laws are used most often to legalize the killing of black victims. According to national data from 2001-2010, more than a third (35 percent) of cases involving strangers where white people killed black victims were determined to be justified. By contrast, black-on-white stranger homicides were determined to be justified in only 3 percent of the cases. Although it hasn’t been tracked by the same studies, there is anecdotal evidence that Hispanics and Native Americans also are disproportionately the victims in self-defense killings.

There is also evidence that expanding self-defense law makes this disparity worse. Another study of states that adopted “stand your ground” laws found that, while all killings were more likely to be justified in those states, white-on-black killings were far more likely to be found justified. Florida, where George Zimmerman was acquitted of killing Trayvon Martin in 2012, has a notoriously broad self-defense law that has been invoked in the killings of more than 20 black children and teenagers since its passage.

This disparity is at least partly a manifestation of bias. Social psychologists have shown that we all share a certain level of bias when it comes to race and gender: as a baseline assumption, we all tend to think black and brown men are probably up to no good, just like we all tend to think white women are probably not.

This kind of bias figures greatly in self-defense cases because they involve a split-second assessment of whether a stranger is about to kill you. To figure out whether a stranger poses that kind of threat, you can rely only on easy-to-see cues. Race is an irrevocable part of that mix of cues. We can’t close our eyes and not see it. Race can also influence our best guesses about other factors: what we think someone is doing, whether we think we see a weapon, whether the person looks out of place. All of that is colored by race (and gender). It is impossible to take race out of self-defense law, at least when two strangers are involved. In light of this potential for bias, state lawmakers must act responsibly by limiting the circumstances in which self-defense can be claimed and ensuring judicial oversight of each claim.

Nevada lawmakers already expanded self-defense law once when they adopted the “stand your ground” law in 2011. Since then, researchers have raised serious questions about the racially biased effects of that expansion. Now, state lawmakers want to expand the law again, this time in a way that is completely unnecessary and sends a dangerous signal that Nevadans do not believe human life, especially black life, is sacred.

Addie Rolnick is a law professor at UNLV’s William S. Boyd School of Law, where she teaches courses in criminal law and race and the law.

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