April 10, 2012 1:16PM

Stand Your Ground Laws Cont’d

On Sunday, the Washington Post ran a front page story on Florida’s Stand Your Ground Law. And in an article for Jurist, just published, I explain why there is really no connection between the Stand Your Ground Law and the shooting death of Trayvon Martin. Here is an excerpt:

Stand Your Ground laws are designed to clarify the law in order to protect the honest homeowner who is under attack by a criminal. It is bad enough to have your home broken into and your life threatened. To then have to hire a lawyer to fend off a misguided prosecutor and a personal injury lawyer representing an injured criminal was considered just too much, at least for lawmakers in many jurisdictions. The recent enactments help the homeowner with two legal presumptions for the home invasion scenario: (1) that the person forcing entry into a house is presumed to be doing so with the intent of committing a violent act; and (2) that if the resident of the home used defensive force, it is presumed to be because of a reasonable fear of bodily harm or even death.

With respect to incidents outside the home, the Stand Your Ground statutes clarify the law for innocent persons by dispensing with any legal obligation to retreat, hence the name, “Stand Your Ground.” What has been overlooked is the fact that the statute only applies to a person under “attack.” Again, the rationale is that it is bad enough for an innocent person to find himself under attack by a criminal, but to then have to worry about whether the law requires a retreat is simply too much to ask. As Justice Oliver Wendell Holmes once observed, “detached reflection cannot be demanded in the presence of an uplifted knife.” The Florida law says that if you are under attack, retreat if you like, but be assured that you may also stand your ground and fight back if that seems to be the best option.

Looking at the standards of the Florida law and the circumstances surrounding the shooting death of Trayvon Martin shows there is no applicability. First, we know that Martin did not try to force his way into Zimmerman’s home. Second, we know from the recorded 911 call that Zimmerman was not under attack when he initially encountered Martin. Third, and this is very important, Martin did not commit any crime in Zimmerman’s presence. Despite the hyperbole about a “license to kill,” the Stand Your Ground law actually has a narrow application to a few scenarios that require no police training. When a criminal brandishes a weapon and says “Give me your money if you don’t want to get hurt,” there’s no ambiguity as to what is happening and the law is applicable. Outside of these types of scenarios the Stand Your Ground law does not apply.

When Zimmerman made the fateful decision to disregard the police dispatcher’s statement to await the arrival of the police and not to follow his “suspect,” he was acting outside and beyond the Stand Your Ground law. Other legal principles enter the picture and those principles run against Zimmerman. By following Martin, Zimmerman’s actions set up the perilous confrontation. Consequently, he will likely be seen as an aggressor in the eyes of the law. Even if Martin threw the first punch, that punch will likely be considered the result of Zimmerman’s provocation. Since Martin was unarmed, a gunshot in response to non‐​deadly force (fisticuffs) will probably be deemed beyond the bounds of normal self‐​defense. (The Florida legal system will have to consider all of the available evidence and ultimately determine Zimmerman’s legal responsibility.)

Cato will be hosting a policy forum on the Stand Your Ground Laws on Monday, April 23 – details here.