Don’t rush to repeal “Stand Your Ground” laws

by Walter Olson on March 22, 2012

The New York Times invited me to participate in a “Room for Debate” discussion of Florida’s controversial “Stand Your Ground” self-defense law, and my contribution is here. I elaborate on some of the issues at stake — including the failure of Florida’s violent crime rate to rise as predicted under the law — in this Cato post (& welcome Instapundit, Reihan Salam/NRO, Alex Adrianson/Insider Online, Aaron Worthing, David Codrea readers).

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{ 24 comments }

1 Walter Olson 03.22.12 at 12:15 pm

Of all the angry comments at the NYT, I think this is my favorite:

“Due process will prove the facts.” That is a naive statement that lacks empathy. Not only are there myriad examples where due process fails to “prove the facts” (OJ Simpson and Casey Anthony jump to mind,) but due process will not be able to give a mother back her son should the law sway in her favor. We can’t simply let the law sort out itself when there are lives at stake. Let us not forget that there is a human element to law and society, Mr. Olson.

Don’t just wait for the law to sort out the factual contentions with due process accorded both sides. Demand something better and more immediate instead — after all, there are lives at stake! The perfect way to counter what the NYT informs us is the menace of “vigilante justice.”

2 L Nettles 03.22.12 at 12:18 pm

I found this section in the Florida Justifiable Use of Force Chapter very interesting as it applies to the current controversy.

776.041?Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1)?Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2)?Initially provokes the use of force against himself or herself, unless:
(a)?Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b)?In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
History.—s. 13, ch. 74-383; s. 1190, ch. 97-102.

3 Hugo S. Cunningham 03.22.12 at 1:08 pm

The authorities in Sanford FL sound like undercover anti-gun activists– trying to make a reasonable pro-gun law ridiculous by mis-applying it. The 911 tape by itself is enough to make clear that Zimmerman, ignoring the dispatcher’s instructions and stalking the victim, was an aggressor, not covered by the “Stand your ground” law. Even in some conservative states, not all cops like to share the legal right of force.

4 LisaMarie 03.22.12 at 1:32 pm

Hugo,
You’ve put your finger on exactly what bothers me about this case. As a woman who spends a lot of time on foot in my large city, it seems beyond bizarre that someone could stalk me on a public sidewalk, making me feel threatened, and then claim a right to defend themselves against me with deadly force if I confront them.

5 David Schwartz 03.22.12 at 6:21 pm

LisaMarie: The law already doesn’t allow someone to provoke an attack and then use deadly force to “defend” against the attack they provoked. I think one could easily argue that following someone and then asking them, in a hostile manner, what they’re doing some place they have right to be whether or not they are doing anything would be considered provoking.

If this goes to trial, you can be fairly certain that the Prosecutor will conjure up an image of a world where armed vigilantes stay just on the edge of legal conduct by stalking and harassing people, even intruding into their personal space until the provoked person gives a tiny push, allowing the vigilante to use the lethal force they wanted to use from the beginning. I don’t think juries will want to live in that world and I don’t think the current law forces them to.

6 gitarcarver 03.22.12 at 7:44 pm

David,

I am sorry, but I have a hard time seeing asking a question in a hostile manner as “provoking” anything. You can stand there silent, answer, yell back, walk away, or whatever.

What matters is the assault.

We will never know who stated the physical confrontation. Zimmerman said he was attacked. Tragically, Martin cannot respond.

Martin was no shrinking violet. At 6’2″, 170 pounds, he was in far better physical condition than Zimmerman.

Zimmerman, on the other hand, seems to have been overzealous in his devotion to a neighborhood watch program. Many people in the area had credited Zimmerman with preventing crimes and catching criminals. It is not a reach to say this went to his head.

Martin’s father has said the voice heard on the 911 calls yelling for help was not his son. Witnesses have said they saw Martin on top of Zimmerman hitting him.

What all these fact mean together, I don’t know. I do know that many people are misrepresenting the facts of the case.

Martin was an unknown person in a gated community. He had been suspended for 5 days from school. Zimmerman has been portrayed as being “white.” He is not. The fact that cries for help were heard but ignored by others is a sad commentary on the area and people in general.

This incident has spiraled out of the realm of facts and logic into the realm of spin and lies.

Someday we may know the truth, but with marches, the event being viewed as a “hate crime,” Zimmerman in hiding, the involvement of the Justice Department, etc, I doubt we’ll ever know what happened for sure. There are too many people involved for their own reasons and not for the shifting concept of “justice” or truth to ever matter.

7 David Schwartz 03.22.12 at 10:54 pm

gitarcarver: Following someone on a street as they try to walk quickly away from you and then asking them in a hostile manner what they’re doing in your neighborhood could (and quite possibly did) provoke an attack. That doesn’t mean it justified the attack, but it did provoke it.

You can read the law, L Nettles posted it up in the thread. You are allowed to use lethal force to defend against an attack, even if you provoked it. But you then have an obligation to try to disengage.

I don’t know what happened in this case, and it’s quite possible that Zimmerman did try to disengage. But I think it’s quite clear that he provoked the attack. Again, that Zimmerman provoked Martin into attacking him doesn’t mean he did anything illegal and doesn’t justify the attack.

8 gitarcarver 03.23.12 at 1:24 am

David,

The confrontation did not take place on the street. The fight ending in the death of Martin took place behind and between homes. You have an unknown person running between buildings of a community that has been hard hit by crime.

Do I think Zimmerman could have handled the situation better? Sure. Perhaps he could have asked “hey…. I am with the neighborhood watch program here. Can I help you?” or something along those lines.

But I reject categorically the idea that a hostile question is justification for an attack. Someone has to come up with a better reason then “the man said something mean to me” as justification to start a fight.

I happen to be a sports official and I can tell you that if I reacted by decking every coach or manager that was aggressive or hostile to me (and I am in Florida) there is no one that would by my excuse for the use of force.

A question yelled in a hostile manner is not provocation in my opinion.

9 Small Government Guy 03.23.12 at 9:17 am

gitacarver-

To me, the key in your narrative is that a witness (or witnesses) saw the victim with the upper hand punching Zimmerman, and will that rise to the level of the Florida statute of being in “immenent danger of death or great bodily harm”.

If the victim had a knife, for example, or Zimmerman had marks on his neck showing Trayvon was strangling him, I could see it. I think he will get murder 2 or manslaughter.

Of course, my legal experience is limited to watching “Criminal Minds”, so what do I know.

10 Frank 03.23.12 at 9:41 am

“You have an unknown person running between buildings of a community that has been hard hit by crime.”

And it is certainly unreasonable for a person being followedf/chased/stalked by an unknown person to leave the wide open street where one is a clear target and attempt to get away or out of sight, especially in a ‘hard hit by crime’ neighborhood.

I have read many comments at other sites as well as those here where people question why the victim didn’t simply respond politely to any inquiry made by the shooter. Sure, and why didn’t he s____ his d___ too?

Areas where armed men have to roam the streets are not Disneylands where all is pretty and bright and polite society reigns. In these and many other areas, if one lets another assert r superiority and control over that one’s being one may be f___ed in every meaning of the term.

11 gitarcarver 03.23.12 at 12:17 pm

And it is certainly unreasonable for a person being followedf/chased/stalked by an unknown person to leave the wide open street where one is a clear target and attempt to get away or out of sight, especially in a ‘hard hit by crime’ neighborhood.

I want to make sure that you are actually saying that it was better to leave a street, where people are driving by and can see what is going on to go to an area that was not watched and hidden from the sight of many.

Also, Martin had the option of calling the police just as Zimmerman did. If that had happened, a different resolution may have occurred.

The point is not to blame either man, but to try and understand the mindset of each. It is understandable for Zimmerman to follow someone in his community. It is understandable for Martin to walk away.

So with everyone acting in a manner that we all understand, how is it that there is a dead body?

12 Leafs004 03.23.12 at 1:01 pm

At this point, I believe that facts won’t help George Zimmerman as Obama has now spoken and called for an investigation:

“Obviously, this is a tragedy. I can only imagine what these parents are going through. And when I think about this boy, I think about my own kids. And, you know, I think every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this and that everybody pulls together — federal, state and local — to figure out exactly how this tragedy happened,” Obama said.

He added: “But my main message is to the parents of Trayvon Martin. You know, if I had a son, he’d look like Trayvon. ”

The president said “all of us have to do some soul-searching to figure out how does something like this happen.”

I have an opinion at this point, but I was waiting to see how the facts unfolded before coming to my own conclusion, and wish Obama would do the same. I know Obama didn’t say that Zimmerman was guilty, but how do you think the authority figures who will oversee the investigation respond to words like “You know, if I had a son, he’d look like Trayvon.” or “all of us have to do some soul-searching to figure out how does something like this happen.”

I suspect George will be facing a stiff prison sentence.

13 Shtetl G 03.23.12 at 1:34 pm

The standard line of specious logic used to rush hot button legislation usually is “if it saves one life”. Now certain people are claiming if we repeal the law it would have at least saved this one life. My question is how many lives have been saved by people legitimately standing the own ground? Do those lives count in the moral calculus or is the only life that counts the one that lends itself towards the repeal?

14 Walter Olson 03.23.12 at 2:03 pm

Leafs004 — I wouldn’t fault the president for calling for an investigation, which I take as the consensus position of everybody including me. And “all of us have to do some soul-searching to figure out how does something like this happen” is notable for its tonal moderation; in fact, I think it would have provoked outrage from the Sharpton types had it come from someone from the right side of the spectrum (“what do you mean, all of us?”) .

“If I had a son, he’d look like Trayvon,” is the line people will remember. As a message of “I feel your pain,” it matches or exceeds the most empathetic flights of Bill Clinton, without actually tipping over into prejudging what the results of an investigation will be. It’s not something I would advise a President to say — I more admire the stoic Calvin Coolidge style — but I predict it will be very popular.

15 David Schwartz 03.23.12 at 4:21 pm

“But I reject categorically the idea that a hostile question is justification for an attack.”

So do I. I can’t imagine what I said that made you think otherwise.

That someone was provoked into attacking does not mean the attack was justified. Florida law justifiably treats provoked attacks, whether justified or not, different from unprovoked attacks.

If you walk up to a drunk guy in a bar and make rude remarks about your past with his girlfriend and he responds by punching you, you have provoked that attack. That doesn’t mean the punch was justified.

Florida law does not allow you to provoke a non-deadly attack and then use deadly force to defend against that attack except after making an attempt to disengage. My point is simply that the SYG law is not broken. It does not allow armed vigilantes to provoke attacks and then use deadly force to defend against them.

16 Melvin H. 03.24.12 at 4:31 am

The impression I am getting here is–having not heard of the Florida law until here–is that the “Stand Your Ground” law sounds like a portable version of “Make My Day” laws that some states have. (By “portable” I mean that SYG covers protecting yourself anywhere, while MMD laws cover yourself on your property.) For those like myself who may not be familiar with the law, how close is this analogy, oversimplified as it is, to the SYG law in Florida?

17 gitarcarver 03.24.12 at 9:50 am

David,

I am sorry, but I still reject your characterization of a question – no matter how “hostile” it can be described – as being a “provocation.” Asking – even yelling – “what are you doing here” is not provocation.

Even if it were, in this case, it appears that Zimmerman could not disengage as Martin was seen on top of him beating him around the head. Also, it is hard to characterize Zimmerman’s cries for help as anything other than the willingness to end to confrontation as required by the law.

I agree with you, however, that the law is not broken.

18 Yeaah 03.24.12 at 11:00 am

@gitarcarver First, it is not clear who was crying for help. Second, Martin was not running. He tried to “walk fast” when he seen that Zimmerman is following him again (after he through that he lost him).

Third, even if he would be running, running after you found out that someone is following you is not suspicious. It is normal.

Fourth, remind me to be careful and always loose the fight that started after someone hostile was following me. Because from all we know, if Martin would kill Zimmerman, he would be able to claim self defense as well.

19 Hugo S. Cunningham 03.24.12 at 12:06 pm

The cat is out of the bag: police strike re-victimizes Trayvon Martin’s family

I earlier expressed suspicion that Sanford FL police were acting in bad faith when they claimed a stalker was protected by Florida’s self-defense law. This morning’s NYT guest Op-Ed by former Miami police chief John F. Timony seems to prove it:
http://www.nytimes.com/2012/03/24/opinion/floridas-disastrous-self-defense-law.html
Timony never accepted a citizen’s right to self-defense even at home, and promotes the mis-handling of Zimmerman’s crime as a golden opportunity to repeal it.

Pro-gun groups like NRA need to get out in front on this issue. Not only should they call for prosecution of the stalker Zimmerman; they should also seek prosecution of the Sanford Fl police chief Bill Lee as an accessory after the fact or whatever other charges will stick.

20 gitarcarver 03.24.12 at 6:58 pm

@Yeaah,

The police interviewed the father who initially said the voice on the call was that of his son. The father has since retracted that statement, but one of the 911 callers said the man on the ground was crying for help.

Secondly, Zimmerman’s 911 says that after Martin came toward the car Zimmerman was in, he walked fast and then ran.

It may be normal or it may not be normal. That is part of the issue. Both men had different mindsets in this incident. Zimmerman saw himself as protecting the neighborhood. Martin saw himself as being followed. Why Martin went behind the units instead of going to the house in which he was staying is something we will never know.

Your fourth point misses the mark. Some have said that Zimmerman had a duty and responsibility to retreat from the confrontation and as he did not, he could not claim self defense under the stand your ground law.

However, that law says that if the aggressor tries to get away or signal the end of the confrontation, the defense is still applicable. Zimmerman could not get away as he was under Martin. Zimmerman’s cries clearly indicate that he wanted to end the contact.

Essentially you seem to be saying that once Zimmerman wanted the confrontation to end, Martin had the right to continue to beat on Zimmerman. That, of course, would allow Zimmerman to claim he was in fear of his life.

Growing up if people saw someone in their community that was strange, they would confront them or call the police or both. The person would gladly say they were staying in the area or whatever because the underlying principle was looking out for the other guy – whether you were in your neighborhood or someone elses.

21 Yeaah 03.25.12 at 2:19 am

@gitarcarver why do you assume that martin tried to kill Zimmerman in the end or at least posed some great danger to him? Why do you assume that Martin hit first? Why do you assume that it was Zimmerman who was yelling for help? All those are unsupported assumptions.

As the last point goes, I grew up differently. A random unknown person on the street has no right to stop me and restrict my freedom to move. None. If someone tries to do that, I assume that he is trying to steal from me, kidnap me (if I’m kid) , rape me (if I’m a woman) or beat me.

No one would gladly stay when confronted with an unknown guy. That guy would be considered a threat and most people would complain to the police – regardless of what he through.

22 gitarcarver 03.25.12 at 10:48 am

Yeaah,

why do you assume that martin tried to kill Zimmerman in the end or at least posed some great danger to him?

A man sitting on top of you beating on you is a great danger.

Why do you assume that Martin hit first?

I don’t.

Why do you assume that it was Zimmerman who was yelling for help?

The father identified the voice on the 911 call as not being Martin’s. The 911 call says the man on the ground is yelling for help, and the other man is on top beating him. The man on top is Martin. People have come forth and said the voice was that of Zimmerman.

As the last point goes, I grew up differently. A random unknown person on the street has no right to stop me and restrict my freedom to move.

Martin was not on the street – he walked / ran into a gated community and went behind homes. If you grew up differently, that is fine. You are defending in essence a belief that we shouldn’t look out for each other.

Why do you assume Martin or anyone was restricted in movement? He wasn’t.

What would have happened if Zimmerman and Martin had simply talked – Zimmerman explaining he was part of a neighborhood watch program looking out for the safety of people and property in the area and Martin responded by saying thanks because if something happened to him while he was out, he’d want people to be looking out for him?

No one would gladly stay when confronted with an unknown guy.

Wrong. It happened to me last Christmas. I was out riding a bike, got a little tired and stopped on a corner to rest a moment and look at the Christmas lights on a house. A car pulled up and asked if I knew the Jones that lived there. I responded that I didn’t but I was just resting and at the same time admiring the lights. I understood what the person was looking out for their neighbor and in the long run looking out for me.

23 Yeaah 03.26.12 at 9:32 am

@gitarcarver
> Why do you assume Martin or anyone was restricted in movement?

I do not, that was an answer to you suggestion that I should stay on place whenever any random guy tell me so.

> The man on top is Martin.

I think that Martin had the right to successfully self defend himself against Zimmerman. Successful self-defense involves being on top in the end. That where the stand your ground laws came from, to give you right to protect yourself using force.

> if Zimmerman and Martin had simply talked – Zimmerman explaining he was part of a neighborhood watch program looking out for the safety of people and property in the area …

That starts with Zimmerman acting politely and non-threateningly towards Martin. That assumes, that Zimmerman suddenly changed his behavior. Instead of being all agitated and angry, he calmed down and was able to treat Martin politely or at least non-aggressively. I find it very unlikely.

> A car pulled up and asked if I knew the Jones that lived there.

That was not a confrontation. That was a polite question asked from distance. That car was not following you previously. It was clear that the guy was no threat to you. That is different situation.

> You are defending in essence a belief that we shouldn’t look out for each other.

Zimmerman was not looking out for Martin. He considered Martin a robber, junkie and general threat before he stepped out of the car. Please, do not look out for me this way.

24 gitarcarver 03.26.12 at 11:59 am

I do not, that was an answer to you suggestion that I should stay on place whenever any random guy tell me so.

I see. So talking to someone is a “restriction of movement?” (And for the record, Zimmerman never told Martin to stay in place. )

I think that Martin had the right to successfully self defend himself against Zimmerman.

I agree. Martin had no duty to retreat and is able to defend himself. However, the question is “who started the physical confrontation?” At least one witness told the police it was Martin.

Even so, you are wandering away from the point that I was addressing. You initially asserted that we did not know whose voice was yelling for help. When that assertion was contradicted, you moved to this point.

(Unless of course, you believe that a person who is winning a fight typically yells for help while continuing to beat on someone.)

That starts with Zimmerman acting politely and non-threateningly towards Martin.

Zimmerman’s 911 call has Martin moving toward him – not the other way around.

That was not a confrontation.

Thank you for making my point. It was not a confrontation because both of us were willing to view the incident from the others point of view. I understood the person was looking out for a friend and they understood that there could be other reasons for me to be standing there.

Zimmerman was not looking out for Martin. He considered Martin a robber, junkie and general threat before he stepped out of the car.

Thank you for taking this way out of context. Once again, you seem to be saying that people should not look out for each other. If Martin and Zimmerman had talked or tried to view the encounter from each others point of view, we may not be here.

Do you really think that if Zimmerman say Martin being beaten up, attacked or robbed by others he would have ignored it? History says he wouldn’t have, but you are free to believe what you want.

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