Law professor answers questions on Stand Your Ground, self-defense and more

TUSCALOOSA, Ala. (WIAT) — Earlier, CBS42 posted a report detailing where Alabama stands on the Stand Your Ground law.

CBS42’s Mike McClanahan spoke with Joseph A. Colquitt, a professor of law at the University of Alabama School of Law and a retired Alabama Circuit Judge.

Colquitt responded to a number of questions regarding self-defense, Stand Your Ground and more.

McClanahan:  What constitutes justified use of deadly force in a self-defense case in Alabama?  Are there specific criteria laid out for person who’s in their house or in their car or somewhere else?

Colquitt: Self-defense is a defense of justification. It is a “shield,” not a “sword.” When self-defense becomes an issue in a case (i.e., there is evidence of self-defense in the case), the burden falls on the State to refute self-defense. Stated differently, the defense does not have to prove self-defense. It is not an “affirmative” defense. Instead, the State must prove an unlawful homicide; otherwise there can be no conviction. So the State must refute the possibility of self-defense. An Alabama pattern jury instruction explains: “The defendant does not have the burden of proving that he acted in self-defense. To the contrary, once self-defense becomes an issue, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” Alabama Pattern Jury Instructions – Criminal pp. 3-9, 3-10 (3d ed J. Colquitt, ed.).

 Normally, a person is permitted to use such force as is necessary under the circumstances to protect oneself from aggression. The circumstances control the amount of force permitted because excessive force under the circumstances would not be considered “necessary.” In other words, force that is not necessary is not justified.

Self-defense is objective. That means that the person’s conduct is gauged on a reasonableness standard. If a person “reasonably” believes that another person is using or about to use deadly physical force against him or her, that use of force by the aggressor creates a presumption that defender used deadly physical force justifiably to defend himself or herself. An individual may subjectively and honestly believe that he or she needs to defend by the use of deadly physical force against a perceived aggression on the part of another, but if his or her perception is unreasonable under the circumstances, then the use of deadly physical force is not legally justified. (This explanation does not address other scenarios which authorize the use of deadly physical force, i.e., e.g., defense against physical aggression while in a home which is being burglarized, or defense against serious assaultive or violent crimes such as rapes, robberies, or kidnappings).

McClanahan: Have there  been significant changes to these laws in the last several years?

Colquitt: The self-defense statute in Alabama was amended in 2013 to permit business owners and employees, and perhaps business invitees, to use deadly physical force to shield against aggression during violent crimes on business premises. Aside from this amendment, the last act was last amended in 2006. I believe it was that act that repealed the duty of a person to retreat if reasonably possible (other than in one’s home or place of business, in which no duty to retreat existed). This change in the law has been celebrated by some and criticized by others as a so-called “stand your ground” approach. Although prior to 2006, Alabama did require retreat outside the home or business if the possibility of retreat to “complete safety” if the avenue of retreat was known or reasonably apparent, some number of other states had already dropped the retreat requirement by relegating it to a factor in the assessment of whether or not the use of deadly physical force was “necessary.”

McClanahan: What is Alabama’s version of the Stand Your Ground bill?

Colquitt: Alabama Code section 13A-3-23(b): “A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any 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.” As mentioned above, a duty to retreat (if reasonably possible) existed prior to the 2006 amendment except that even prior to 2006 there was no duty to retreat if the individual was not the original aggressor and was in either his or her dwelling or place of work. Moreover, whether before or after 2006, police officers and persons assisting police officers at their direction in the performance of their duties have no duty to retreat.

Copyright 2013 WIAT-TV CBS 42

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