"Stand Your Ground" Isn't the Problem

In the wake of George Zimmerman’s acquittal for the shooting of Trayvon Martin there has been an outcry for the abolition of the so-called “stand your ground” law that prevails in Florida, and, in some form, in more than 30 other states. [1] Attorney General Eric Holder has called for the abolition of such laws, saying that such measures “senselessly expand the concept of self-defense” and may encourage “violent situations to escalate.” [2]

Two questions emerge. The first is whether stand your ground laws are sensible. The second is whether the absence of such a law in Florida would have resulted in a different outcome in the Zimmerman case.

Classically, a person had what was called a duty to retreat before the law allowed him to forcibly defend himself; he was required to do what he could to avoid violence before force was used. [3] Many states, like Florida, have abolished this rule by statute, and in many of those states a person has no duty to try and escape the violence before using even deadly force. [4]

To decide whether a rule of law in criminal jurisprudence is one that should be maintained, it has to be kept in mind that the question is always about whether one ought to suffer penal sanctions for any given conduct. The question is never about what a perfect person would do under a set of circumstances, but about whether a person’s conduct requires a particular social response. Society accepts many shortcomings in a person before it is decided he should be incarcerated.

With that in mind let us consider whether we really want to reinstate a duty to retreat. It should be kept in mind that we ought to consider this in a context outside of the Zimmerman case. The discussion is really about what should be applied to criminal defendants in the future. Indeed, the question may become directly relevant to any of the readers of this article at some point. To keep the debate honest, we have to ask ourselves whether the rule that we are proposing is something we would want applied to ourselves if we were to become criminal defendants.

Considered in such a manner, it ought to be clear that a duty to retreat could result in verdicts that many would consider to be unfair. How much retreat is necessary wouldn’t be susceptible of such a precise definition that someone who is confronted with violence in a concrete situation will always have clear guidance as to how he should conduct himself. There doesn’t seem to be a lot of common sense in a rule that would require an individual to worry about whether he had adequately tried to avoid violence in circumstances where his life is threatened at the instigation of another person.

The prevailing talk about ridding the legal landscape of stand your ground laws is more about reaction to the verdict in the Zimmerman case than it is a concern about jurisprudence. This becomes clear when it is considered how a duty to retreat would have impacted the outcome in that case.

The death of Trayvon Martin happened as a result of a fight between Zimmerman and Martin that Zimmerman was losing badly. If one accepts Zimmerman’s version of the events, and the jury did just that to the extent that it did not find that the prosecution had proven beyond a reasonable doubt that he did not take Martin’s life in self defense [5], Zimmerman took Martin’s life while he was underneath Martin, and his head was being banged against the concrete. Zimmerman, thus, had no ability to retreat or avoid violence. He did everything he could to avoid violence, which was nothing. It, therefore, appears that Zimmerman would have been acquitted even under the stricter duty to retreat law.

While all of this might make the jury’s verdict in the Zimmerman case understandable, many will still find something disquieting about the outcome. There is something not quite right about the idea of a white man in a world full of white supremacists following a black kid at night, instilling understandable fear in the young man, thereby provoking a violent response, and shooting the young man dead with impunity. It seems reasonable to conclude that Trayvon Martin was himself acting in self-defense. Why shouldn’t that have affected the outcome?

Perhaps it should have. Indeed, Florida does not allow for the applicability of its stand your ground law where the defendant initially provokes the use of force against himself. [5] It does allow, however, for a defendant to claim self-defense under the old duty to retreat rule in such circumstances, and, as already noted, Zimmerman would have prevailed even under that older standard. But we are left with the disturbing outcome that although Zimmerman created the conditions that made the defense of himself necessary, that fact was not relevant to how the jury was to decide the case. 

It, therefore, appears that the fault in the law is not that someone has no duty to retreat before being able to succeed on a claim of self defense. The fault lies in the availability of a totally exonerating self defense claim in circumstances where the defendant’s assailant was justified in his actions by his own right of self defense. If there was no stand your ground law in Florida, Trayvon Martin might have been deemed to have a duty to outrun the much more portly George Zimmerman. But there is a stand your ground law in Florida, and Martin had no obligation to retreat in the face of Zimmerman’s ominous activity. There is an irony, then, that those who are decrying the verdict seek a remedy against the very law that made Trayvon Martin’s actions justifiable.

Nonetheless, there appears to be a change in the law that is necessary, though it is not the repeal of the stand your ground law. The necessary change in the law is that it ought not to permit an individual to cause a person to fear for his life, and then avail himself of a self defense claim after that person reacted in a probable and foreseeable manner. Even if it might be sensible to allow for a lessening of the offense or punishment in such scenarios, it seems to make very little sense to provide that the defendant should simply enjoy total exoneration in circumstances of that kind. Here, then, we hit upon the actual legal reform that should find impetus from the outcome of the George Zimmerman trial.

Jack Quirk

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