Cramer, Clayton E.

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University of Florida Levin College of Law

University of Florida Journal of Law & Public Policy Volume 27 Issue 3 Article 6 2016 Why the FBI's Justifiable Homicide Statistics Are a Misleading Measure of Defensive Gun Use Clayton E. Cramer Follow this and additional works at: https://scholarship.law.ufl.edu/jlpp Recommended Citation Cramer, Clayton E. (2016) "Why the FBI's Justifiable Homicide Statistics Are a Misleading Measure of Defensive Gun Use," University of Florida Journal of Law & Public Policy: Vol. 27: Iss. 3, Article 6. Available at: https://scholarship.law.ufl.edu/jlpp/vol27/iss3/6 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in University of Florida Journal of Law & Public Policy by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. ESSAYWHY THE FBI'S JUSTIFIABLE HOMICIDE STATISTICSARE A MISLEADING MEASURE OF DEFENSIVE GUN USEClayton E. Cramer*I. THE FBI's JUSTIFIABLE HOMICIDE STATISTICSAdvocates for tighter gun regulation argue that justifiable homicidesby private citizens with firearms are extremely rare. Compared tocriminal homicides with guns, these are so rare that the defensive use ofguns is not justified by the enormously larger number of criminalmisuses.' This would be an interesting argument if the FBI's justifiablehomicide statistics included all defensive killings by civilians, but it doesnot. The FBI's manual on reporting data to the Uniform Crime Reports(UCR) system is very clear as to what deaths may be reported as"justifiable homicides":Justifiable homicide, by definition, occurs in conjunction withother offenses. Therefore, the crime being committed when thejustifiable homicide took place must be reported as a separateoffense. Reporting agencies should take care to ensure that they donot classify a killing as justifiable or excusable solely on the claimsof self-defense or on the action of a coroner, prosecutor, grandjury, or court.",2* Adjunct History Faculty, College of Western Idaho. Mr. Cramer is the author ofCONCEALED WEAPON LAWS OF THE EARLY REPUBLIC: DUELING, SOUTHERN VIOLENCE, AND MORALREFORM (1999) (cited by Justice Breyer in McDonald v. City of Chicago, 130 S. Ct. 3020, 3132(2010) (Breyer, J., dissenting)), ARMED AMERICA: THE REMARKABLE STORY OF HOW AND WHYGUNS BECAME AS AMERICAN AS APPLE PIE (2006), and co-author of, among other articles, ClaytonE. Cramer & Joseph Edward Olson, What Did "Bear Arms " Mean in the Second Amendment?, 6GEO. J.L. & PUB. POL'Y 511 (2008) (cited by Justice Scalia in District of Columbia v. Heller, 554U.S. 570, 588 (2008)), and Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, "ThisRight is Not Allowed by Governments that Are Afraid of the People ": The Public Meaning of theSecond Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823(2010) (cited by Justice Alito in McDonald, 130 S. Ct. at 3039 n.21, 3041 n.25, 3043). Mr.Cramer's website is CLAYTON CRAMER'S WEB PAGE, http://www.clayton cramer.com (last visitedAug. 20, 2013). Funding for this research was provided by Firearms Policy Coalition and theCalguns Foundation.1. Firearm Justifiable Homicides and Non-Fatal Self-Defense Gun Use, VIOLENCEPOLICY CENTER (June 2015), http://www.vpc.org/studies/justifiablel 5.pdf.2. Uniform Crime Reporting Handbook, UNIFORM CRIME REPORTS 1, 17-18 (2004),https://www.fbi.gov/about-https://www.fbi.gov/aboutus/cjis/ucr/additiona-us/cjis/ucr/additionaI-publications/ucrhandbook.pdf/at download/file (emphasis added).505UNIVESITT OF FLORIDA JOURNAL OF IAWAND PUBLIC POLICYWhat other civilian killings with firearms are there besides those "inconjunction with other offenses"? While statutory definitions vary fromstate to state, California's definitions provide a useful example. Homicideis considered justifiable:When resisting any attempt to murder any person, or to commit afelony, or to do some great bodily injury upon any personWhen committed in defense of habitation, property, or person,against one who manifestly intends or endeavors, by violence orsurprise, to commit a felony, or against one who manifestly intendsand endeavors, in a violent, riotous or tumultuous manner, to enterthe habitation of another for the purpose of offering violence toany person therein...When committed in the lawful defense of such person, or of a wifeor husband, parent, child, master, mistress, or servant of suchperson, when there is reasonable ground to apprehend a design tocommit a felony or to do some great bodily injury, and imminentdanger of such design being accomplished; but such person, or theperson in whose behalf the defense was made, if he was theassailant or engaged in mutual combat, must really and in goodfaith have endeavored to decline any further struggle before thehomicide was committed...When necessarily committed in attempting, by lawful ways andmeans, to apprehend any person for any felony committed, or inlawfully suppressing any riot, or in lawfully keeping andpreserving the peace.3This would seem to include all offenses that would be reported inconjunction with such a killing by a private citizen. Or does it? Californialaw also has a category of "excusable homicide" which includes bothkillings "committed by accident and misfortune, or in doing any otherlawful act by lawful means, with usual and ordinary caution, and withoutany unlawful intent" and a surprisingly catch-all category: "Whencommitted by accident and misfortune, in the heat of passion, upon anysudden and sufficient provocation, or upon a sudden combat, when noundue advantage is taken, nor any dangerous weapon used, and when thekilling is not done in a cruel or unusual manner."43. CAL. PENAL CODE § 197 (West 2016).4. CAL. PENAL CODE § 195 (West 2016). Similar language is used in many other statedefinitions of excusable homicide. See OKLA. STAT. ANN. tit. 21, § 731 (West 2016); N.M. STAT.ANN. § 30-2-5 (West 2016); IDAHO CODE ANN. § 18-4012 (West 2016). For historical origins ofthe distinction, see N.Y. Crim. Code § XV, in THOMAS F. GORDON, GAZETTEER OF THE STATE OFNEW YORK: COMPREHENDING ITS COLONIAL HISTORY 293 (1836); REV. MO. STATUTES, art. II, § 5[Vol. 272016] WHY THE FBISJUSTIFJABLE HOMICIDE STATISTICS ARE A MISLEADING MEASURE 507In many cases, such "sudden combat" might not be a reportableoffense under the UCR program. It is clear why law enforcement agenciesmight well be uncertain how to categorize a homicide committed undersuch circumstances. In many cases, excusable homicide does not fit theFBI's very narrow definition of justifiable homicide.If the only data available were the FBI's justifiable homicide table, itwould be an interesting problem to determine if the FBI's definitionunderstates actual defensive killings. If you want to know how manycivilians kill criminals each year, you need to look at not only justifiablehomicides, but also the "sudden combat" excusable homicides. Let us callthis combination of civilian justifiable homicides (CJHs) and the "suddencombat" excusable homicides "civilian legal defensive homicides"(CLDHs).There is no data available for the United States as a whole that tells usthe yearly number of CLDHs. But there have been several studies ofdifferent cities and counties that tell us how many CLDHs there are,relative to the number of murders and manslaughters. The notedcriminologist Gary Kleck has concluded, based on these studies, that thenumber of CLDHs with guns per year is typically 7.1% to 12.9% of themurder rate (at least five times the FBI's "justifiable homicide with agun" figures).5There is another problem with the FBI's figures for justifiablehomicide that significantly understates CLDHs, and significantlyoverstates murders. If the police investigate a homicide and ask thedistrict attorney to charge someone with murder or manslaughter, that isreported as a murder or manslaughter to the UCR program. But districtattorneys often investigate a case, find evidence that the killing was, infact, justifiable or excusable homicide, and drop the charges.A person who is tried for murder will sometimes be found innocentbecause the killing was done in self-defense. This is very often the casein spousal abuse situations where a woman defends herself or her childrenfrom a current or estranged husband.6(1835). For the historical origins of the distinction, see JOYCELYN M. POLLOCK, CRIMINAL LAW161 (10th ed. 2013) ("The distinction between justifiable and excusable homicide was importantat early common law, because excusable homicide resulted in forfeiture of goods. However, thedistinction is less important today, because neither entails any criminal responsibility. Today, thetwo terms are often used synonymously.").5. GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA 112 (1991) ("For avariety of reasons the FBI S[upplemental] H[omicide] R[eports] totals for CJHs represent only aminority of all civilian legal defensive homicides (CLDHs)." Discussing detailed study of Detroithomicides 1969 to 1980: "[W]hile 344 cases of civilian homicides were labeled justifiable,another 741 were labeled excusable...").6. Id. at 114 ("Gillepsie ... reviewed five local studies of homicides in which womenkilled their husbands or men with whom they lived intimately and concluded that the majoritywere self-defense killings .... She estimated that there were as many as 500 such killings eachUNIVERSITY OF FLORIDA JOURNAL OF LA W AND PUBLIC POLICYIf a murder turns into a CLDH after the initial report has been taken,there is a strong possibility that this change won't make it into the UCRdata. How do we find out how many such cases there are? We have asource of information that is especially interesting because it wasoriginally produced as gun control advocacy. In 1989, Time magazine ranan article called "Seven Deadly Days." It included photographs andinformation about every person killed by a gun in one week in the UnitedStates.To see how typical a selection this was, let us extrapolate the data toannual rates. The week was May 1-7, 1989. Was this a typical week forgun deaths in the United States? Reasonably so. There were 464 gundeaths reported in the article. Of these, 216 were reported as suicide, 14deaths were CLDHs, 13 deaths were police justifiable homicides, and 22deaths were accidents.7 This leaves 199 murders.To scale up the May 1-7 gun deaths to determine yearly rates for theUnited States, we can't just multiply by 52 weeks per year. Murder ratespeak in the summer months; May 1989 had 7.8% of 1989's murders.8 Toscale up the May 1-7 gun deaths to an annual rate, we multiply by100.0/7.8 (May's murder percentage), and then multiply by 30/7 (thefraction of May days that included May 1-7). This gives us the followingresults (remembering that the "per year" figures on the last line areextrapolations):year .... "7. Seven Deadly Days, TIME (July 17, 1989), http://content.time.com/time/magazine/article/0,9171,958158,00.html3O.8. Crime in the United States, 1991 UNIFORM CRIME REPORTS I, at 14, https://www.ncjrs.gov/pdffiles 1/Digitization/138839NCJRS.pdf.[Vol. 2720161 WHY THE FBI'S JUSTIFIABLE HOMICIDE STA7 IIS7ICS AREA MISLEADING MEASUREU)CNcj:lON 0Q0 '0rjr00UNIVERSITY OF FLORIDA JOURNAL OF IA W AND PUBLIC POLICYFor the year 1989, the FBI reported 11,832 gun murders, 236 guncivilian justifiable homicides, and 360 gun police justifiable homicides.9The gun murders for the year are surprisingly close to the extrapolationof murders from that week in May.That the FBI's 1989 figures for civilian justifiable homicides andpolice justifiable homicides do not match our extrapolations is not all thatsurprising. Only about half of all police justifiable homicides are actuallyreported to the FBI;' ° the data above fit well with this fact. The 769CLDHs are far higher than the FBI's figures for civilian justifiablehomicides, but we have already discussed why the FBI's numbers are toolow.Earlier we examined Professor Kleck's estimate that CLDHs withguns should be 7.1% to 12.9% of the total murder rate. For 1989, thatwould be between 1,346 and 2,445 gun CLDHs-not 769.11 Rememberthat the Time article, like the FBI's reporting, showed the number ofcivilian defensive uses initially reported. A year later, Time decided tofollow up on the murder cases and see how the courts handled them.Instead of 14 CLDHs, now there were 28-14 of the murders reportedwere now ruled justifiable or excusable homicides.9. Id. at 17-18, 22.10. KLECK, supra note 5 ("[O]nly about half of police killings get reported as such to thenational vital statistics system").11. Crime in the United States, supra note 8, at 18. There were 18,954 murders in 1989.[Vol. 272016] WHY THE FBI'S JUSTIFIABLE HOMICIDE STATISICS ARE A MISLEADING MEASURE000,'-- C'0~1.00COI-CO (j~I-' ~-- C) C)COC)--C) C) ~C) ~ C)c/~ 0 0 ~.UNIVERSITY OF FLORIDA JOURNAL OF LA WAND PUBLIC POLICYThis number of CLDHs (1538) is at the low end of the range thatProfessor Kleck's estimates would give.12 However, at least 43 murdercases had still not gone to trial,13 and it was still possible that some ofthese would be found justifiable or excusable.II. OTHER OUTCOMESThe Violence Policy Center's study assumes that the proper measureof citizen defensive gun use is dead criminals. In fact, a better measure iscrimes prevented.But how do you measure that?For a number of years, I and several associates gathered news reportsand law enforcement agency reports of citizens who were found to haveused guns in lawful self-defense.14 For the years 2003-2011, we foundmore than 4000 incidents where police, prosecutors, juries, or judges haddetermined that the citizen's use of a gun was lawful self-defense. Wehave previously published a detailed analysis of the data for 2003-2011.15I recently resumed updating this blog with new incidents. As of thiswriting, there are more than 4300 incidents recorded for the years 2003-2011 and part of 2015, in which citizens used guns to protect themselvesfrom home invasions, rapes, robberies, animal attacks, carjacking andsome truly unexpected and perhaps unexpected threats. These incidentsby no means comprise a comprehensive list; rather, these are only onesthat were considered newsworthy by either a news organization or lawenforcement agency.It seems likely that many more incidents were not reported either tolaw enforcement or to journalists. In some cases, the incidents, whilefrightening at 2:00 AM, might have seemed less frightening in daylight.In other cases, persons defending themselves may have had good reasonsfor not wanting police to ask why they had a gun. One category of theseincidents involved convicted felons defending themselves from criminalattack, and who would not want the police to arrest them for being a felonin possession of a firearm. 1612. GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA 112 (1993).13. Death by Gun: One Year Later, TIME, May 14, 1990, at 34.14. Clayton E. Cramer, CIVILIAN GUN SELF-DEFENSE BLOG (Dec. 16, 2015), http://gunselfdefense.blogspot.com/; see also Tamara F. Lawson, A Fresh Cut in an Old Wound-A CriticalAnalysis of the Trayvon Martin Killing: The Public Outcry, The Prosecutor 's Discretion, and theStand Your ground Law, 23 U. FLA. J.L. & PUB. POL'Y 271,301 (2012) (stating that in self-defensecases, individuals sometimes can't perceive a threat with its corresponding level of danger).15. Clayton E. Cramer & David Burnett, Tough Targets: When Criminals Face ArmedResistance from Citizens (2012), CATO INSTITUTE, http://object.cato.org/sites/cato.org/files/pubs/pdf/WP-Tough-Targets.pdf.16. Id.[Vol. 272016] WHY THE FBI'S JUSTIFIABLE HOMICID1E STATISTICS ARE A MISLEADING MEASURE 513How many crimes were prevented by armed citizens during 2003-2011 when the citizen justifiable homicide count seldom exceeded 300?Likely in the thousands, judging by incidents considered newsworthy andthat we found. Many like the following involved dead criminals:BIRMINGHAM, Ala. -Authorities have determined that awoman who shot and killed her accused abductor and rapist actedin self-defense.The incident was reported at 6 p.m. Nov. 3 in the 2800 block ofPebble Creek Parkway in Forestdale. Adamsville police wereasked to help [and] located a 26-year-old woman who had beenreported abducted earlier in the day.The woman was found in the parking lot. Jeremy Arnold Ford, 25,was found dead in an apartment. He had suffered an apparentgunshot wound.Investigators said the woman had been abducted at gunpoint,raped, driven to locations the suspect wanted to visit, then forcedto drive back to Ford's apartment, where she was once againsexually assaulted. They say the victim shot Ford with his owngun.17III. CONCLUSIONThe FBI's justifiable homicide statistics are so incomplete as to bemisleading. Even if they included the large number of citizen gundefensive uses where a criminal is killed, they would not be a meaningfulbasis for doing a cost-benefit analysis of allowing private ownership ofguns because crimes prevented matter more than criminals killed.17. Amber Roberson, Shooting of Accused Rapist in Adamsville Ruled Self-Defense,WVTM (Dec. 16, 2015, 12:36 PM), http://www.wvtml3.com/news/shooting-of-accused-rapist-in-adamsville-ruted-selfdefense/36994300.514 UNIVERSITY OF FLORIDA JOURNAL OF LA WAND PUBLIC POLICY [Vol. 27

Why the FBI\u27s Justifiable Homicide Statistics Are a Misleading Measure of Defensive Gun Use

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Why the FBI\u27s Justifiable Homicide Statistics Are a Misleading Measure of Defensive Gun Use

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