Tag: stand your ground law

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.

Teenager Shot and Killed

Very little media interest so far in the case of an 18-year old shot and killed by a man who claims to have acted in self-defense.  It happened a few days ago in Detroit.  At about 1:30 am, Willie White claims that an intruder broke into his home and that, fearing for his life, he  had to shoot.  Prosecutors have concluded that White acted in self-defense so there will be no criminal case.

It is too soon to tell whether White will be sued civilly for wrongful death.  Relatives of the teen might hire a lawyer to argue that White had a “duty to retreat” and that he should have tried to hide in a bedroom closet instead of using deadly force.  If that happens, White will need hire a lawyer to fight the lawsuit.  To protect people like Willie White from that sort of thing, some states, such as Florida [update: and Michigan!], have Stand Your Ground laws, that immunize persons who act in self-defense from civil liability.

The recent Cato study, Tough Targets, details many cases of citizens using guns to thwart crime.

The Myths and Realities of ‘Stand Your Ground’ Laws

In recent days a great deal of ill-informed commentary has appeared about the “stand your ground” self-defense law enacted in Florida and many other states since 2005 (earlier) and how if at all it applies to the February 26 confrontation between George Zimmerman and Trayvon Martin. The Orlando Sentinel invited me to sort things out for readers and the resulting op-ed is here.

Much of the piece is devoted to clearing away myths:

Let’s start with one of the most common misreadings of the law, namely that (in the words of Washington Post columnist E.J. Dionne) it sets out a rule of “Feel threatened, just shoot.” Florida law justifies lethal self-defense in a public place only under reasonable belief that force is necessary to prevent imminent death or great bodily harm.

Belief that’s not reasonable is of no account. No wonder, according to Sentinel reporting, Central Florida police regularly arrest people who try to claim self-defense after committing violent acts, and courts regularly convict them. That’s consistent with the “stand your ground” law.

The best-known provision of “stand your ground” rejects the so-called “duty to retreat.” Under that rule, prosecutors could sometimes overcome an otherwise valid claim of self-defense by arguing that you could have safely fled your attacker.

But — to clear up another misconception — the old duty of retreat would not have put Zimmerman at fault for following Trayvon around the neighborhood. Instead it came into play only when a confrontation had boiled up to a point of imminent violence.

Evidence remains inconclusive on some crucial points, in particular what happened immediately before the two men got into a scuffle in which Martin inflicted injuries on Zimmerman, who then shot him. (Jacob Sullum has a good summary of the current state of reporting, which is changing rapidly.) Under most likely scenarios, however, Zimmerman’s guilt or innocence as a substantive matter is the same under Stand Your Ground as under Florida’s pre-2005 law, because the prosecutors’ case probably would not hinge on the “duty to retreat.” The 2005 law does afford him some procedural advantages, however; and it also has a number of other provisions (applying to immunity in defense of property and of third parties’ safety, for example) that may well be worth a second look but are not relevant to the Martin/Zimmerman case.

On the key legal issue of “provocation” as it applies to violent fights, by the way, Michael Mannheimer has a very useful post at PrawfsBlawg. You can read my new Orlando Sentinel piece here.