crime and punishment

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.

Tagged as: crime and punishment, Florida, guns, Martin-Zimmerman case, self-defense

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