Monday, November 21, 2016

Guns & Stand Your Ground Law: Journal of the American Medical Association Study is Fatally Flawed | National Review

Guns & Stand Your Ground Law: Journal of the American Medical Association Study is Fatally Flawed | National Review

On Monday, the prestigious Journal of the American Medical Association (JAMA) published a paper on American self-defense law so fundamentally flawed that it is hard to view its publication as anything other than an act of propaganda.

The paper’s title describes its purported purpose: “Evaluating the Impact of Florida’s ‘Stand Your Ground’ Self-defense Law on Homicide and Suicide by Firearm” — and its implicit conclusion is that “Stand Your Ground” is bad public policy because it fosters unlawful killing. Indeed, one of the paper’s authors, Antonio Gasparrini, makes this conclusion explicit in telling the U.K.’s Daily Mail that “this study highlights how Stand Your Ground is likely to be a cause of the rise in Florida murders” (emphasis added).

In fact, the paper does not, and indeed by its very methodology cannot, do anything of the sort. The paper’s defects are numerous, but I shall focus on just two.

First, the paper conflates “homicide” and “murder,” and thus cannot result in valid findings with respect to “murder” in particular or with public safety in general. Second, the study contrasts Florida’s Stand Your Ground law with a set of four purportedly non–Stand Your Ground states. One of the four states in the control set, however, routinely applies Stand Your Ground doctrine in much the same manner as does Florida. This failure of methodology substantively invalidates the paper’s findings, and should have been identified in peer review long before publication in JAMA. (The widespread defects in the peer-review process of even, or perhaps especially, premier scientific journals are another subject entirely).

‘Homicide’ and ‘Murder’ Are Not Synonyms

It is a common misconception that “homicide” and “murder” are essentially synonymous. They are not, and the authors should have explicitly noted the distinction in their methodology. Instead, they fail to even vaguely reference this essential issue until the third-to-last sentence of the paper. (Why this was buried in such a manner is left to the reader to consider.)

“Homicide” merely means the killing of a person by a person. “Murder” refers to the subset of homicides that are unlawful. This distinction is vital for public-policy discussion, because homicides that do not qualify as murder are not only lawful but are in many cases a social good. A few hypotheticals illustrate clearly why this is so.

An intended rape victim who shoots and kills her rapist to stop his sexual assault has committed a homicide. She has not, however, committed a murder. Her homicide of the rapist is lawful self-defense and by any reasonable moral standard is preferable to the alternative of compelling her to allow herself to be raped. Similarly, a homeowner who shoots and kills an armed felony intruder has committed a homicide but not a murder. In both cases, the killings qualify as lawful self-defense.

As a final example, and to draw an analogy to a recent well-publicized event, if a lawfully armed citizen shoots and kills a terrorist ruthlessly gunning down unarmed gay people in a Florida nightclub, he has stopped a murderous act of terrorism, not committed a murder. This to-be-wished-for outcome was prevented at the Pulse massacre by laws that prohibit firearms in locations that serve alcohol, a prohibition ignored by ISIS-allegiant Omar Mateen. (Criminals ignoring the law is a common mechanism of failure for preemptive gun-control laws generally, and is perhaps a matter worthy for a paper published in JAMA.)

By failing to distinguish between “murder” and “homicide,” the JAMA paper conflates unlawful and lawful killings. Indeed, it is quite possible that fully 100 percent of the increase in Florida homicides, which the paper attributes to the Stand Your Ground law, were in fact lawful acts of self-defense, the alternative to which would have been the murder, maiming, and rape of innocent victims. If so, the effect of the Stand Your Ground law has been to reduce the murder, maiming, and rape of innocent victims, arguably the very social good intended by its passage. For some reason, however, I see a remarkable absence of press coverage of this paper headlined, “Stand Your Ground Law Shown to Safeguard Innocent Life.” Odd, that.

It’s Hard to Effectively Study What You Don’t Actually Understand

The second fundamental error in this paper is that the authors have a basic ignorance of the legal principles they are purporting to study. This is perhaps not surprising given that their listed associated academic departments include “Social Policy and Intervention,” “Hygiene and Tropical Medicine,” and “Biostatistics and Epidemiology,” but nothing actually related to law. (Incidentally, I extend an open invitation to researchers desiring insight on these legal issues.)

A key facet of the paper’s methodology is a contrast of Stand Your Ground in Florida to four purportedly non–Stand Your Ground states: New York, New Jersey, Ohio, and Virginia. Although it is true that New York, New Jersey, and Ohio impose a legal duty to retreat on all defenders who have the safe means to do so before they are permitted to resort to deadly force in self-defense, this is not the case for Virginia.

In fact, Virginia takes a unique approach on whether a defender has a legal duty to retreat or has the right to stand his ground. Under Virginia law, a defender who has made a “contribution to the affray” — that is, someone who is not an entirely innocent party in the conflict — does indeed have a legal duty to retreat before using deadly force in self-defense. In that subset of self-defense scenarios, Virginia acts much like the duty-to-retreat states of New York, New Jersey, and Ohio.

A defender who has not made a “contribution to the affray,” however — someone who is in every sense the innocent victim of an act of criminal predation — has absolutely no legal duty under Virginia law to retreat before they may use deadly force in self-defense. Because of this, to include Virginia among the set of non–Stand Your Ground states used as a contrast for Florida is to fundamentally undermine the study’s methodological validity on this point.

My reading of the paper’s methodology suggests that the authors fell into this error because they mistakenly believe that America’s Stand Your Ground laws are to be found only in statutes, the laws created by the state legislatures. This is a grave error. America also recognizes case law, the laws created by decisions of courts. That this is the cause of the authors’ error here is suggested by the fact that the paper claims that Stand Your Ground doctrine is the law in a minority of 23 of the 50 states. In fact, 35 states impose no legal duty on a defender to retreat. The states the authors missed largely enacted Stand Your Ground not through statute but through case law, and generally many decades before Florida adopted its Stand Your Ground statute in 2005.

For example, California instructs its juries in self-defense cases that a defender may not only stand his ground, he may even pursue his attacker if necessary for his safety. This position makes California one of the most aggressive Stand Your Ground states in America, and its stance is based on its case law dating back to 1898. At the same time, California has not a single Stand Your Ground statute on the books. It is noteworthy that the authors erroneously fail to include California as among the Stand Your Ground states.

This second error strongly suggests that not only did the authors either not understand or choose to conceal the vital distinction between “murder” and “homicide,” they fundamentally don’t understand how the legal doctrine of Stand Your Ground is implemented or created in American law.

Research or Propaganda?

In closing, I note that in the third-to-last sentence of the paper the authors write: “Our study examined the effect of the Florida law on homicide and homicide by firearm, not on crime and public safety.” Wait, what? And you waited until the very end of the paper to explicitly disclose this highly relevant fact?

Then, pray tell, what was the purpose of writing the paper in the first place? Indeed, the same question must be raised with respect to JAMA’s decision to publish the paper. If the paper is not informative or useful for public-policy purposes, given that it explicitly concedes that it does not address “crime and public safety,” then exactly what is its purpose? Surely the purpose could not have been to serve merely as propagandistic raw materials for anti–Stand Your Ground headlines by a na├»ve popular press eager to uncritically accept JAMA’s prestige? Surely not.

The paper’s conflation of murder and homicide and its basic ignorance of the legal principles in question are only the beginning of its authors’ errors. The two described above, however, should be more than sufficient to compel JAMA to immediately retract this paper because of its fundamental flaws in methodology and frank lack of utility.

And this from the NRA-ILA:

This week, the Journal of the American Medical Association’s (JAMA) online Internal Medicine Network published a “study” by a team of academics in England that purports to analyze “the Impact of Florida’s ‘Stand Your Ground’ Self-defense Law on Homicide and Suicide by Firearm,” with the authors concluding, “implementation of Florida’s stand your ground self-defense law was associated with a significant increase in homicides and homicides by firearm but no change in rates of suicide or suicide by firearm.”

You’d think with a conclusion like that, the study found that the Florida law actually had a negative impact on public safety. But you’d be wrong. Rather, this article stands as but another example how anti-gun scholars continue to perpetuate bad science in order to push their agenda with improper methodology, misleading claims, and a purposeful failure to follow base statistical protocols in conducting an analysis.

An incisive rebuttal to the study published in National Review points out that even taken at face value, the findings have virtually no significance for public policy. Indeed, the JAMA authors admit near the end of their paper that “[o]ur study examined the effect of the Florida law on homicide and homicide by firearm, not on crime and public safety.”

This caveat is necessary because “the study” completely ignores the essential question of whether the firearm-related deaths it focuses on arose from unlawful aggression or lawful self-defense.

The whole point of a Stand-your-ground law, of course, is to give innocent people who are threatened by unlawful violence another possible option in determining how to safely respond. It negates the mandatory duty to retreat before resorting to lethal defensive force, allowing the individual who is actually subject to the threat to determine whether retreat or countermeasures are the safer option.

While the authors of the JAMA study likely disagree, if fault and justice have anything to do with the law – and they should – self-defense is not an outcome to be deplored. Putting the law on the side of innocent victims is not a flaw of Stand-your-ground laws. It’s the point of them.

In short, because the authors don’t account for the differences between those homicides which are justifiable self-defense and those which are not, their “study” fails to provide any real insight on the effects of the law. This, of course, is by design. Pushing the biased narrative that Stand-your-ground is problematic is their point, not whether the law had a positive or negative impact on public safety.

As the National Review article further explains, the authors of the JAMA study also erred in failing to understand that some jurisdictions impose Stand-your-ground by statute, while in other states the doctrine has arisen through court decisions. Thus, the authors mislabel one of the four states they use as a “comparison” group as lacking Stand-your-ground, when in fact that state incorporates the principle in its common law.

In other words, the authors couldn’t be bothered with researching even the most basic question of which states have Stand-your-ground and which do not. This is often the case where public health researchers move beyond their normal field of expertise. The fact that the authors also fail to control for a host of other social and economic variables that likely impact the number of homicides in any given year is further proof of their general incompetence to answer a complex research question related to Stand-your-ground in Florida or anywhere else.

Which brings us to a broader point. A popular myth pushed by the media is that the NRA somehow exercises a “stranglehold” on scientific inquiry into the causes and cures for violence committed with firearms.

That’s not true, and it couldn’t be true. Academic researchers are free to study whatever they want. And private entities can fund whatever research they want.

Even governmental entities can fund or conduct research related to violence committed with firearms. And they do.

There is, however, a federal appropriations restriction that applies to the Centers for Disease Control and to the National Institute of Health that prohibits the use of taxpayer money “to advocate or promote gun control.”

And therein lies the difference.

The funding restriction arose from the fact that it was the stated intention of certain CDC officials during the 1990s “to systematically build the case that owning firearms causes deaths” and “to convince Americans that guns are, first and foremost, a public health menace.”

In other words, the officials did not approach the subject in the spirit of open-minded scientific inquiry. Rather, they hoped to use the veneer of science and government to “discover” answers through “research” that were preordained by their politics.

That bias applies to such research efforts is not NRA’s fault. It’s the fault of an academic community whose research output has repeatedly been exposed as shoddy and haphazard at best and transparently agenda-driven at worst.

Like the media itself, public health researchers have sullied their own reputations and earned the skepticism of the gun-owning community and the larger community of critical thinkers.

Public funding of these sorts of efforts will hopefully remain curtailed under the Trump administration. But the studies will persist, because the antigun agenda that underlies them persists. And the private billionaires funding that agenda – including George Soros and Michael Bloomberg – will continue to need outlets for their prohibitionist expenditures.

We know the mainstream media will not approach this sham science skeptically. But gun owners and policymakers should.

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