Legislators share thoughts on 'Stand Your Ground' wording

The Arkansas Legislature convened in regular session on Monday. All chamber proceedings and committees are live streamed and archived on the website www.arkansashouse.org.

A bill recently filed in the state Senate, Senate Bill 24, has legislators talking.

And several of those representing Northeast Arkansas like what they see so far. But the devil may be in the details, so to speak.

Briefly, the bill as filed removes the requirement of an individual lawfully present in a location to retreat safely from a threat of physical force before using or threatening to use deadly force in his or her own defense or the defense of others.

“We [currently] have one of the best ‘Stand Your Ground’ laws in the nation,” said state Rep. Dwight Tosh (R-52nd District, including Craighead, Jackson, Poinsett and Independence Counties). But one thing that has bothered him, he said, about the law is the wording of the current law that requires an individual first to retreat safely before using or threatening the use of deadly force.

Tosh explained that judgement of what constitutes the ability to “safely retreat” appears to try to address the mental state of the given individual at the given moment.

“I don’t know how you can judge what one person is supposed to see as a ‘safe retreat,’” he said. “It places too big a burden on the individual in what’s likely a very stressful situation. And maybe what you think is a ‘safe retreat’ isn’t one to me.”

The language is deleted from Senate Bill 24 as filed. “I think it’s a great idea to address it,” Tosh said. “This is exactly what needs to be addressed – it has given people so much grief. So I’m on board with it.”

State Rep. Fran Cavenaugh (R-60th District, including Greene, Lawrence, Randolph and Sharp Counties) was similarly enthusiastic about the bill.

“I had a friend for whom, if this law had been in place, things might’ve turned out differently,” she said. “So I’ve got no problem with it.” Cavenaugh is listed as one of 14 House co-sponsors.

State Sen. Blake Johnson (R-20th District, including Greene, Clay, Lawrence and Randolph Counties) expressed qualified support for the bill.

“I support self-defense,” he said. He added, however, that he had reviewed the language and expressed some concern over the possibility of a “reset” of the situation.

“Some scenarios I can see would put the other person in a situation to have the same legal defense [under the bill] as you,” he said, “and they could have you prosecuted.”

Johnson added the words in question for him are “lawful presence.”

“You could mistakenly be unlawfully present in a location,” he said. “I just don’t want the other person to have the same defense as you.”

On the other hand, he noted, state Sen. Bob Ballinger, the bill’s Senate sponsor, had assured him the bill’s language is not set in stone. “He told me: ‘if there’s a better way, then let’s do it,’” Johnson concluded.

State Rep. Jimmy Gazaway (R-57th District, including Paragould), expressed similar qualified support. “I generally support ‘stand your ground’ legislation,” he said. “But my issue is with the specific wording.”

Like Johnson, Gazaway expressed concern with the phrase “lawfully present.”

“That’s long been troublesome to people,” he said. “What does ‘lawfully present’ mean?”

For example, Gazaway speculated, if a person is armed but does not have a concealed carry permit, but is on a location where one is required for an individual to be armed, is the person “lawfully present?”

“That’s distinguished from a ‘right to be present,’” he said, “and I think that would make a big difference.”

Gazaway said he had been contacted by numerous groups in the state on all sides of the issue regarding that specific phrase, including the Prosecuting Attorneys Association, the National Rifle Association and the Gun Owners of Arkansas.

“The Gun Owners of Arkansas point to the Kentucky ‘Stand Your Ground’ law,” he said, “where it says you have a right to be in a location instead of lawfully present. That language makes a difference.”

In any case, Gazaway concluded, most legislation undergoes a greater or lesser amount of change between introduction and what finally makes it to the House floor for a vote. “There is a lot of behind-the-scenes negotiation,” he said, “and I doubt this will be the final form.”

State Sen. Ronald Caldwell (R-23rd District, including Jackson, White, Monroe, Woodruff, Cross, St. Francis and Lee Counties) expressed support for “Stand Your Ground” legislation in general. But he, too, noted concern over the phrase “lawfully present.”

“So often a law has got good intentions,” he said, “but there are unintended consequences.”

In the case of “lawfully present,” Caldwell said, the problem would be that a prosecutor could decide whether an individual was “lawfully present” in determining whether to charge that person under that law.

“It leaves too much leeway in the hands of a prosecutor,” he said, “and this language needs to be changed so it’s not subject to interpretation. I want to see law-abiding citizens protected.”

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