Stand Your Ground laws, cont’d

by Walter Olson on March 24, 2012

A media organization has asked me to take a closer look at the controversy over Florida’s Stand Your Ground (SYG) law, and I’ll be working on that over the next day or two. In the mean time, here are a few links you might want to check out if you’re following the controversy (earlier):

  • Florida’s law on justifiable use of force, including the 2005 SYG changes, is here. As usual, there is no substitute for reading the statute if you want to know how it works. Links to other state SYG laws are here.
  • Michael Mannheimer at PrawfsBlawg points out that some of the law’s reputed new burdens on prosecutors aren’t in fact new:

    First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. …

    So what are we left with that distinguishes Florida’s law? Well, obviously there is the “stand your ground” provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. …

  • But Mannheimer also points to a more significant difference in the 2005 law, namely that the self-defense justification is couched as an immunity rather than as a defense to be raised at trial. This distinction does accord a significant advantage to some defendants, especially where prosecutors hold a factually weak hand at the outset. “Meg” from Cambridge, among the few constructive voices amid the NYT comments section’s baying mob, makes a similar point here.
  • And a number of commentators raise plausible objections to details of the SYG legislation which do not appear relevant to whether George Zimmerman can escape prosecution for shooting Trayvon Martin. Thus Adam Winkler questions whether immunity should extend to situations where the user of deadly force acted in reasonable fear of lethal danger or forcible felony aimed at some third person other than himself (it would appear Zimmerman asserted danger-to-himself, not danger-to-third-parties, at the police station). And Anthony Sebok, writing at the time of the law’s passage, sharply criticizes the law’s expansion of immunity in home and car scenarios, again not at issue in the Martin case.

All of which is by way of clearing the decks for a closer examination of the provisions of SYG that do relate to Zimmerman’s claim of immunity, which will have to wait for a later post.

{ 5 trackbacks }

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{ 7 comments }

1 spo 03.24.12 at 5:20 pm

Make sure you look at 776.041(2).

2 Ernie Menard 03.24.12 at 8:18 pm

776.041(2) needs a sub c.

3 anoNY 03.24.12 at 9:36 pm

I have spent the last few hours mapping out the times and events that happened that day using Google Maps. Looking at the record and the times that things were alleged to have happened, there is no way that the media portrayal of this incident is correct.

I suggest you do as I did and mark off where and when each event took place and then think about the timing of the calls. All of this info is widely available.

Here are some interesting facts:
- Trayvon ran away from Zimmerman and was lost to Zimmerman’s view for 5 whole minutes. Trayvon’s father’s condo was only 100 yards away, why didn’t he go and stay there?
- Trayvon’s girlfriend talked to him for 4 minutes AFTER Zimmerman had already lost sight of Trayvon.
- How did the heavyset Zimmerman ever catch up to the athletic Trayvon? Especially since Trayvon had a 5 minute head start (Zimmerman lost Trayvon for 5 minutes)
- What does Trayvon’s stepbrother say about that night? He was at the condo and the two kids were supposed to watch the All Star game together. Did he hear the gun shot?
- If Trayvon ran from Zimmerman for 5 minutes, how did he not cover the 100 yards to his house, and how did he end up only about 30 yards from where he ran past Zimmerman in the first place?

I personally think Trayvon ran away and then came back. I cannot otherwise explain the fact that he did not run straight home, 100 yards away.

4 A Schmails 03.24.12 at 11:16 pm

The Immunity afforded in the Statute, which the “soon to be former” Police Chief sited as his reasoning behind not making an arrest, is predicated on an intereting requirement: The officers can not charge the suspect, if they had reasonable belief that the suspect was in imminent fear of death – (from a bag of skittles and an iced tea). In other words the Poorly Managed Police Departmen, led by a Chief who can not interpret statute, mis uses the staute to justify his weak decision making. The Supreme court has ruled on the constitionality of State Laws allowing police officers to shoot fleeing felons absent imminent threat if not stopped, How will Florida’s unchallenged Law (which, by the way has a similar fleeing felon section) fare under Federal Scrutiny ? not well I suspect.

5 asdfasdf 03.25.12 at 1:48 am

Why wade into the murky facts and political discourse in the Trayvor case? People’s minds are mostly made up. If you concur with the main factual narrative, your voice is (to say the least) repetitive at this point. If you disagree, you (a) will have no impact; (b) will subject yourself to criticism; and (c) will get drawn into an endless realm of speculation and obscure forensics.

The main interesting feature of the case is how it has managed to capture national media attention for so long. There are plenty of cases with fact patterns sympathetic to conservative legal viewpoints – to advocate those viewpoints, I would try and publicize those cases, rather than argue about a case like this one whose fact pattern lies somewhere between unsympathetic and obscure.

It is odd how it is large-government adherents who time and again seem able to choose the cases and issues and fact patterns that dominate public discourse. It is very hard to win public opinion with these fact patterns.

6 Noah 03.25.12 at 2:23 pm

Is SYG that big a factor in the Zimmerman/Martin tragedy? Unless a person has a realistic opportunity to flee, there isn’t much difference between flee first and SYG. Other than staying in the car and waiting for the police to arrive, nobody has offered any evidence that Zimmerman had the opportunity to flee once the actual fight started.

7 Jim Collins 03.25.12 at 6:23 pm

Noah,
There is a difference. I have a bad knee, before this law and other laws like it were passed, I had to show an intent to flee before defending myself, even if it ment moving from a place of tactical advantage to a place of no advantage. They also mean that I can move to a place of advantage even if it means moving toward my attacker. When I say “tactical advantage” think cover.

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