A new “stand your ground” bill caused minor fireworks during an Arkansas Senate judiciary committee meeting on Wednesday.
The bill, sponsored by Sen. Bob Ballinger (R-Ozark) and co-primary sponsor Rep. Aaron Pilkington (R-Knoxville), has already attracted controversy, becoming one of the notable bills filed in the 93rd General Assembly. Senate Bill 24 (SB 24) deals with the use of deadly physical force, and enables an individual to respond to what they “reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of physical force that he or she reasonably believes to be necessary.”
The bill also amends Arkansas Code to justify the use of deadly physical force when a person “reasonably believes that the other person is committing or about to commit a felony involving physical force or violence, using or about to use unlawful deadly physical force or imminently endangering the person’s life or imminently about to victimize the person from the continuation of a pattern of domestic abuse.”
According to the bill, individuals are not justified in using physical force “with purpose to cause physical injury or death to the other person,” if “the person is the initial aggressor,” and if “the physical force involved is the product of a combat by agreement not authorized by law.”
On Wednesday, Jan. 13, the Senate Judiciary Committee set the bill on its agenda to discuss, with Ballinger presenting amendments to the bill.
The amendments to the bill remove the requirement to retreat before using physical deadly force when an individual is “lawfully present” where the deadly force is used and has reasonable belief that another person is “imminently threating to cause death or serious physical industry to the person or another person.” Previously, the bill read that a person could not use deadly force in self-defense if they knew they could “avoid the necessity of using deadly force” by either retreating or surrendering possession of property to another person claiming lawful right.
In addition, the bill holds that the individual using deadly physical force in self-defense must not be the initial aggressor (except in certain situations as outlined in the bill), must not be committing a felony offense of unlawful possession of a weapon (except if the person is within their dwelling or curtilage); must not be engaged in criminal activity giving rise to the need for force; and must not be engaged in activity “in furtherance of a criminal gang, organization or enterprise…”
“Essentially, what this bill is doing – 30,000 foot view – is in 98.9 percent of the cases, you’re going to be where you’re allowed to be, you’re going to be doing what you’re allowed to do, you’re not going to be a felon in possession of a firearm, and it just removes the duty to retreat,” Ballinger said.
Removing the requirement to retreat, Ballinger said, would bring the bill in line with other legislation around the United States, noting that the “vast majority” of stand-your-ground laws have no retreat requirement. According to the National Conference of State Legislatures, there are at least 25 states that do not require individuals to retreat from an attacker.
“Most jurisdictions do not put the burden on the innocent party to prove that the have the ability to retreat if they are lawfully where they are doing. Clearly, it doesn’t back up from rights you already have,” Ballinger said.
Ballinger told the committee that he expected significant response both in support and opposition to the bill. He said that he has already had the bill vetted by the Arkansas Prosecuting Attorney’s Association and the Arkansas Sheriff’s Association, as well as the National Rifle Association (NRA).
Matt Harriman, NRA state director, called the bill a “common sense measure” during the committee meeting.
“First of all, this is not a new or uncommon law. Stand your ground or no duty to retreat laws are the norm across the nation in at least 34 states that do not require a duty to retreat either by statute or by case law,” he said. “Secondly, Senate Bill 24 does not encourage violence or give anyone a license to murder. In reality, this is a very narrow concept that simply protects victims of violent crime that choose to defend themselves before attempting to flee. Besides the single element of required to run before you defend yourself, use of force justification and self-defense scenarios does not change. Force must still be proportional to the threat.”
Both Ballinger and Sen. Trent Garner (R-El Dorado) emphasized the amended bill would be focused on the retreat requirement. Both senators said that the bill would not significantly change Arkansas’ self-defense laws as currently understood.
“It doesn’t change one part of the code, it doesn’t change one iota of how it’s been done in Arkansas over the last 100 years. This simply has to focus on if you have the duty to retreat,” Garner said.”
In response to a question from Garner, Ballinger said, “The right of self-defense is not only ingrained in Arkansas Code. It’s also ingrained in our common law, and none of that is really being changed. One thing that’s unusual in Arkansans is that we have the duty to retreat, and that puts us outside the norm. What this does is take that away.”
Sen. Stephanie Flowers (D-Pine Bluff) raised multiple concerns over the bill, asking Ballinger about the reasonable belief that undergirds the self-defense claims. She questioned whether the character and behavior of the person using deadly force would be taken into account after the fact, and how this reasonable belief would be determined. “How do you determine the reasonable belief that the person who uses the deadly force has, in terms of the victim?” Flowers asked.
“That reasonable person standard is standard that you have to apply in the law even though sometimes it is not as clear, but there’s no other way around it. You’ve got to apply whether a person would be reasonable, and so that’s why it’s important to have good jurors and good jurists who will reasonably apply the facts,” Ballinger said.
“The standard is not necessarily of that person. The standard is whether or not a reasonable person in that fact pattern would find it an imminent threat,” he said. “Ultimately, it will be up to the prosecutors. They have some discretion in deciding whether to prosecute. But that’s not really the final say – it will be the judge and jury in most cases [that] makes that decision. It will hopefully with a lot of good facts present so that answer will be made clear.”
Ballinger told the committee members that the use of the reasonable belief standard was ultimately dependent on “good juries and good judges.” “I wish there was a better answer. It’s evident that the law and our system is not perfect. It’s the worst except for every other system,” he said.
Sen. Jim Hendren (R-Gravette) also voiced objections to the bill, and asked the committee if there was a need for the bill in Arkansas. He asked Ballinger if there was a specific instance of an individual killing someone else in self-defense and being prosecuted for it. According to Hendren, he can cite multiple examples provided by law enforcement in support of his hate crimes bill that support the need for legislation.
“Is there a case in Arkansas of somebody being prosecuted because they exercised their right of self-defense rather than fleeing?,” Hendren asked.
Ballinger told Hendren he did not know directly know of a case but cited an anecdote of an individual being convicted for second-degree murder for allegedly defending himself against an attacker. The lack of evidence, in Ballinger’s view, was proof that Arkansas prosecutors were doing a “really good job” and were not taking into account whether or not individuals could retreat or not.
“The reality is we are a legislative body. It’s our job to go out and decide what is the best policy and to put that forward. It’s our job if we spot something that’s ambiguous in the law, some place where citizens are not being defended fully and innocent citizens are being placed with the burden to run away when they’re being attacked, it’s our job to fix that,” Ballinger said.
Hendren continued to tease out the implications of the proposed bill, using the recent attacks on the U.S. Capitol as a jumping-off point. In Hendren’s scenario, a similar riot could occur at the Arkansas State Capitol with individuals attempting to break into the building while media organizations reported on the event.
“Let’s suppose that a member of the news crew began to feel threatened by the actions of the protestors to the point where they felt like they were going to get trampled and they were getting attacked verbally, maybe called “fake news” and “all the stuff that caused this thing.” They begin to feel at risk. Would they be able to pull out a gun and shoot somebody?” Hendren asked.
According to Ballinger, the outcome would depend on the specific circumstances of the situation, and he noted that simply being yelled at would not justify the use of deadly force. He did say that individuals would be justified in responding to violence with “proportional force”
“The answer is, ‘It depends.” Would a reasonable person in that situation, would they have the ability to do that,” Ballinger said.
Hendren also posed the question of racial bias in self-defense, asking if stand-your-ground laws were equitably applied. Ballinger told Hendren that claims that stand-your-ground laws were unfair were “absolutely false,” claiming that the data could be “skewed” on the matter.
“The statistics show it is used more proportionally amongst minorities but it is only because the instances are usually, typically, the victim and the perceived perpetrator are of the same race. Like 80 percent of the time, that’s what happens,” he said.
As the committee entered the public comments period, Flowers registered numerous objections to the bill as a witness. Flowers echoed Ballinger’s earlier comments that the legislature seeks to find the best policies for the state, but she said that SB 24 would not be good policy for Arkansas.
“That’s interesting. I believe that, too. So we do agree on that. However, I don’t believe that this is the best policy. I don’t think it’s a good policy. I don’t think that it’s a better policy than what we have in our law right now. Our law right now says a person can defend himself from deadly physical force, particularly at their dwelling place,” she said. “It’s settled in Arkansas. People have always been able to defend their homes without any possibility of prosecution.”
To Flowers, a threat of harm, under the stand-your-ground law would be “magical words” allowing for deadly force. “The question becomes to me, is it better to avoid killing someone if you know you can get away from them or would you just want to take the opportunity because you have a gun and somebody might be threatening you. Not necessarily with a gun – they might just be yelling at you, ‘I’m going to shoot you,’ but you don’t see no gun. But because you have this reasonable belief that they might have a gun on them. They could be packing something on them somewhere. Maybe it’s behind them, but they’ve got their hands up,” she said.
In an interesting turn of events, Jan Morgan, a gun’s right advocate and former gubernatorial candidate for Arkansas, addressed the committee in opposition to the bill. She requested that the committee “tweak” the bill to address specific language claims and to address the use of force when defending a pregnant woman and unborn children.
“’Sen. Ballinger is correct that the words ‘lawfully present,’ when I discussed this with him behind the scenes by phone, ‘lawfully present’ is utilized in a number of stand your ground laws across American, and I have studied the laws across America. He is correct and up to this point, that has not been a major issue, and I cannot cite you any examples where it has been an issue,” she said.
Morgan cited vague threats of federal overreach, claiming that there would be an “unprecedented attack from the federal level” on state’s rights and gun rights due to a Democratic Party-controlled U.S. House of Representatives, U.S. Senate and White House. Currently, there is a bill filed by Rep. Shelia Jackson (D-TX) in the U.S. House of Representatives that would address firearm licensing, possession and registration of arms and would prohibit the possession of “certain ammunition.” However, this bill has not yet been received by Congress.gov. There is, however, a bill from Rep. Richard Hudson (R-NC) that would provide for national reciprocity for concealed carry bills.”
Once the discussion was completed, the committee members voted to pass the amended bill out of committee by a 5-2 vote. Hendren and Flowers voted in opposition, while Ballinger, Garner, Sen. Blake Johnson (R-Corning), Sen. Terry Rice (R-Waldron) and Sen. Gary Stubblefield (R-Branch) voted in favor.
When the Arkansas Senate convened after the committee meeting, Ballinger made a motion to suspend the rules to adopt the amendments to the bill. This action, he said, would allow them to address the bill quickly. Flowers then asked why there was a rush to suspend the rules.
“That means that we won’t have all weekend to deal with emails, telephone calls. This is a bill that all of us know about. I’m happy to answer any questions. We’ve been dealing with it. It just enables us to move forward tomorrow, which is plenty of time,” Balliner responded. “If you guys don’t want to deal with it, that’s fine.”
Hendren later asked Ballinger to clarify his reasoning to suspended the rules.
“We’re doing this so we can keep moving forward and get business done,” Ballinger said.
In the initial voice count, the motion to suspend rules passed, but the motion failed in a subsequent roll-call count, only garnering 20 votes out of a required 24.
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