The Right to Self-Defense While Running
This week’s events stemming from the tragic death of 25-year-old runner Ahmaud Arbery have increased focus on the threat of violent attack while running, and consequently the right of self-defense.
Feeling in danger while running is an all-too-common occurrence. Women experience more threats than men. In addition, racial inequities affect perceptions of who among runners is perceived as a threat, and who in turn might face the reality of having to use self-defense while running. As I explain in my book The Law of Running:
According to an online Runner’s World survey of readers in 2016, 43% of women said they sometimes experience getting harassed during runs compared with 4% of men. Among women younger than 30, the survey found 58% said it happens during runs always, often, or sometimes. As for the perpetrators, 94% of them were men.
I also cite research from from Rashawn Ray, a sociologist at the University of Maryland, whose 2017 study indicates would-be runners risk being crime victims—not from a criminal assailant, but from false criminal accusations. Ray explained that when African-American men run or consider running in predominantly white neighborhoods, they “feel the need to signal their middle-class status in predominately white spaces.” Ray writes:
For middle class black men engaging in leisure-time physical activity, this signaling process may mean always carrying a driver’s license or other form of identification, wearing an alumnus shirt of a notable university, walking along busy or well-lit streets, running during daylight hours, and smiling and waving at neighbors.
The law of self-defense is difficult to summarize because self-defense laws are state laws, and every state’s law is a little different. All states affirm the right to use force, even deadly force, to protect one’s self in and around the home, our “castles.” But because runners are most likely to face threats outside the home, the so-called “castle doctrine” has little applicability.
When faced with lethal threats outside the home, roughly half the states allow a potential victim to “stand your ground” and use deadly force if the threat arises where we have a right to be, even if the force leads to a justifiable homicide.
The right of self-defense diminishes if the potential victim is a trespasser or otherwise does not have a right to be on the property.
In the other states, “stand your ground” is not the law. In those jurisdictions, a potential victim may use deadly force in self-defense only if there is no safe opportunity for “retreat.” (The National Conference of State Legislatures’ website provides information on each state’s laws.)
The duty to retreat puts runners in a precarious position. As runners, we have more physical ability to retreat than a lot of potential victims. In addition, we probably are dressed for it.
But having the means and ability to retreat does not mean it will work. Therefore, even in "duty to retreat" states, if fleeing from a potential deadly encounter is impossible, we have the right to fight, potentially with deadly force.
More often, a runner is likely to consider using less-deadly forms of self-defense such as a chemical irritant. The law generally allows potential victims to use nondeadly force if they reasonably believe doing so is necessary to fend off an attack.
But are chemical irritants nondeadly forms of force? The jury is still out.
Some courts have found chemical irritants to be deadly weapons when they are used to commit crimes such as robbery. But chemical irritants were designed to be a self-defense alternative to deadly force, so those court rulings are not particularly relevant.
Unfortunately, there is no clear-cut rule on the legality of using chemical irritants. Although state laws do not ban them outright for adults, some states regulate the size of the containers and prohibit some people who have been convicted of crimes from carrying them. In addition, municipalities sometimes have their own ordinances. Some jurisdictions have banned stun guns as well, but only in places such as parks.
Legally, the bans are open to criticism, particularly because the Second Amendment is interpreted and applied to affirm the right to use deadly force. The result is that in some communities, a runner who feels threatened might have a right to use a gun but not a chemical irritant, at least in parks.
Eugene Volokh, a noted constitutional scholar, has suggested that makes little sense. In a 2009 article he wrote for the Stanford Law Review, he explained a potential victim should not have to limit her means of self-defense in places such as parks and choose streets instead on the theory the right to self-defense is broader on the street.
“One could walk or jog on the street rather than through a park,” he wrote. “Yet one purpose of the right to self-defense is to help people live their lives with less need to avoid potentially dangerous places. A young woman should be able to go to a restaurant, or walk through the park at night, knowing that she has a relatively effective defensive weapon at hand should someone want to rape, beat, rob, or kill her.”
What can you do to know your rights in your specific state or community? To find out whether your state is a "stand your ground" or "duty to retreat" state, National Conference of State Legislatures’ website provides information on each state’s laws.
Regarding the legality of pepper spray or mace, a good source can be your local police department or sheriff's office. The officers are there to help punish crime, but also to prevent it, and they will have information on the ordinances and other laws in your area.
Amazon: The Law of Running: A Runner's Guide to Legal Rights
(Photo: Steve Aggergaard)
Podcast: After Ahmaud Arbery's Death, Exploring the Right of Self-Defense
The Law of Running is written by Steve Aggergaard, steve@aggergaardlaw.com. It is not legal advice. The laws are different in every state and municipality, so if you need legal help reach out to a lawyer in your area who knows the applicable laws and is in the best position to help you in your particular situation.