Yesterday, I attempted to defend the George Zimmerman verdict,
and I was surprised that I got few negative comments. Frankly, I expected to be
raked over the coals (which I welcome) for my stance. Instead, we’ve got a good
discussion going, which is even better.
It’s no surprise that the main point of contention (and
confusion) is self-defense and the acceptable use of deadly force, particularly
in light of “Stand Your Ground” laws.
It’s confusing for everyone, including lawyers sometimes. A
few years ago, my lawyer friend Drew and I overheard yet another lawyer explain
her understanding of deadly force. She argued passionately (and erroneously)
that she could use deadly force if, for example, she caught someone breaking
into her car in her driveway. (Naturally, this has become a running joke
between Drew and me: “Note to self: Don’t show up at HER house unannounced!”
etc.)
It’s not that funny, though, when you consider that we appear
to be a heavily-armed and increasingly nervous nation. Add to that the Trayvon
Martin case, with pundits lamenting that “it’s open season on black teenagers!”
and “Stand Your Ground is a get-out-of-jail-free card!” and the waters are
muddied further.
Oliver Wendell Holmes famously said, “Detached reflection
cannot be demanded in the presence of an uplifted knife.” Brown v. U.S.,
256 U.S. 335, 343 (1921). I’m sure, therefore, that no one will consult this
blog post before shooting an assailant. Still, I thought I’d try to clear up
some of the confusion about self-defense, deadly force, and Stand Your Ground.
Common-law
self-defense
As you can imagine, sweating over whether it’s OK to defend
yourself or your property is a fairly recent concept in human history. Nonetheless,
the defense of “self-defense” evolved to justify what would have normally been
considered a violent criminal act.
Self-defense is an Affirmative defense and a Justification
defense (“Yes, I killed him, but I had no other choice.”)
Once the prosecution proves all elements of the underlying
offense (murder, say) beyond a reasonable doubt, the defense has the burden of
proof to prove all elements of the self-defense claim. In other words, to
successfully defend himself of the crime by using self-defense as a
justification, the defendant must show that the assailant presented an unlawful
threat such that the defendant believes himself to be in imminent (not future)
peril of death or serious bodily harm—and that self-defense is necessary to
avert the threat. The peril need not be real, but the defendant’s fear that it
is real must be both honest and reasonable under the circumstances. (So… even
if the defendant was being “attacked” with a dummy knife as a Halloween prank,
he could still theoretically be justified in defending himself.)
The standard is both objective and subjective: In other
words, the jury considers both whether the defendant truly believed that he was
in danger AND whether that belief was reasonable. See People v. Goetz,
73 N.Y 2d 751 (1988).
Deadly
force and the duty to retreat
In general, a defendant is justified in using only the amount
of force necessary to repel the attack. If someone shoves a defendant, he is
probably not justified in shooting back.
At common law, the defendant had a duty to retreat from the
assault if he could do so. For example, if someone attacked the defendant on
the street, the defendant was expected to run away if possible. The notable
exception to this is known as the Castle Doctrine—as in, your home is your
castle. The defendant had the duty to retreat only as far as his home (or, in
some cases, his car or place of business), in part because, once you’ve run
home (or you’re already at home), it’s not possible to retreat any farther than
that.
All of the above was codified into each state’s criminal
code, but some states have passed enhanced self-defense statutes that discard—in
part or in total—the duty to retreat. These are the so-called Stand Your Ground
laws.
Stand
Your Ground
About thirty states (depending on how loosely you define
“stand your ground”) now have some type of Stand Your Ground law with no duty
to retreat or a limited duty to retreat from anywhere the defendant has a legal
right to be. Most—if not all—of these laws place some restrictions on Stand
Your Ground—the defendant can’t invoke this defense if he’s not lawfully
carrying the gun he used, for example, or if he has “unclean hands”—is engaged
in criminal activity at the time.
Florida’s Stand Your Ground law reads:
“A person
who is not engaged in an unlawful activity and who is attacked in any other
place where he or she has a right to be has no duty to retreat and has the
right to stand his or her ground and meet force with force, including deadly
force if he or she reasonably believes it is necessary to do so to prevent
death or great bodily harm to himself or herself or another or to prevent the
commission of a forcible felony.” § 776.013(3), Fla. Stat. (Supp. 2012).
Wasn’t
Trayvon Martin standing his ground?
If, as Martin’s friend Rachel Jeantel testified, he was
afraid of George Zimmerman, why was he not allowed to defend himself—with his
punch to Zimmerman’s nose, say?
If you re-read the statute, you’ll see that it requires the
person to be “attacked” and to “meet force with force.” From all evidence,
George Zimmerman was at most following Martin (and may not have been doing
that). This does not rise to the level of an attack or of force on Zimmerman’s
part.
What
about that lady who got 20 years for firing a warning shot?
On July 31, 2010, Marissa Alexander returned to her husband’s
home, where she had not lived in two months. (She had a restraining order
against him, but she voluntarily returned, perhaps to get some possessions.)
The couple argued, and she went to her car in the garage and returned with a
gun. She fired a shot into the wall (she says it was a warning shot; reports
call the bullet placement “adult level”) in the direction of her husband and
his two children. A judge rejected her Stand Your Ground claim.
Based on these facts, it would be hard to make a case for a
Stand Your Ground. When she went into the garage, she appears to have given up
her ground. (You can’t retreat and then come back and stand your ground.) Also,
by coming back into the house with a gun after walking away, she appears to be
the aggressor in this situation and not the victim. Further, it is unclear
whether she had a legal right to be at this house, as the two were separated
and she had not lived there for two months.
She was convicted of three counts (one for the husband and one
for each of the two children) of aggravated assault and was sentenced to 20
years in jail under a mandatory sentencing law after she rejected a plea deal
that would have reduced her jail time to three years.
While I’m sure we can find some examples of the uneven
application of Stand Your Ground laws, this case clearly isn’t one of them.
It’s
not open season on anyone
If you’re attacked, you are justified in using as much force
as you honestly and reasonably believe is necessary to repel the attack—but no
more—including deadly force if that’s what it takes. If you’re in your home,
you do not have the duty to retreat. In a Stand Your Ground state, you no
longer have the duty to retreat even if you’re not in your home unless you fall
under your state statute’s limitations—you’re the initial aggressor, say, or
you’re engaged in some illegal activity.
Hopefully, you won’t find yourself in this position.
No comments:
Post a Comment