‘Stand your ground’ law is not a license for vigilante behavior

John J. Cahill

Thursday, March 29, 2012 | 2 a.m.

If Nevada residents believe current spin about “no retreat” or “stand your ground” states like Nevada, they might believe it’s open season to shoot anybody who looks suspicious, but that is far from the truth.

Although state law says there is “no duty to retreat under certain circumstance,” the state Supreme Court in 2000 issued specific jury instructions involving the law, outlining certain conditions that must apply.

To merit the use of deadly force in self-defense, the attack must be unprovoked and the person suffering attack must be innocent and act on reasonable fears alone as presented in that instant. The danger of death or great bodily harm must be imminent and the use of deadly force in response must be absolutely necessary.

So, if a Nevada citizen is minding his own business, is attacked with the threat of imminent deadly force, is responding to circumstances that would excite the fears of a reasonable person, and is acting alone on those fears without predisposition or prejudice, that person would likely not be legally required to retreat.

That’s a far cry from the incident described in the Trayvon Martin case in Florida and much different from the opinions of those who blame a no-retreat law for the failure of police to arrest the Florida shooter, much less conduct an investigation and submit the facts to the prosecutor for a decision. The “stand your ground” law in Nevada provides no protection from arrest or prosecution.

Using only the facts as reported by the media, the error in the Trayvon Martin homicide was a failure of law enforcement to use the legal system to resolve the shooting. Police have discretion but cannot make a judgment of guilt or innocence in the field. The shooting of an unarmed person on the street must be investigated and the facts and circumstances evaluated to determine if a crime was committed. By failing to put the Florida justice system into action, the police failed the victim, his family, the shooter and the community.

In Las Vegas recently, as reported, a homicide resulted when a resident shot from inside his habitation to stop a person apparently attempting to break into and enter that residence.

Nevada law, NRS 200.120, could support that action in providing that “justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony ... in a violent, riotous, tumultuous or surreptitious manner.”

Judging any action after the fact based on media reporting is inherently unfair. However, because the general populace may reach conclusions about the use of lethal force in protecting their homes and families based on news reporting, some critical analysis is required.

In the use of deadly force as self-defense, facts discovered after the incident cannot be applied to justify the judgment at the moment. The facts after the shooting will be considered to determine if there will be an arrest and prosecution, and that’s why law enforcement investigates to determine if there was necessary self-defense.

There is no right to act like a law enforcement officer or to commit homicide and later justify it as self-defense. Nobody in Nevada gets to shoot in self-defense because another person looks scary or suspicious and might be a threat. “Stand your ground” never justifies vigilante behavior, but it does give people the ability to defend themselves.

The final jury instruction for self-defense in Nevada is powerful: “If evidence of self-defense is present, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. If you find that the state has failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant not guilty.”

Nevada citizens deciding to keep a firearm at home or to carry a firearm for personal defense should get training on legal consequences and consult a Nevada attorney for advice. They should also get training and practice using the firearm selected to become competent and confident so that if confronted by a violent assailant, they can calmly and quickly evaluate facts and choices and not worry about proficiency if shooting is absolutely necessary.

John Cahill is a retired Nevada peace officer and certified firearms instructor for Nevada and Utah. He is also the Clark County public administrator.