an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Standing on Common Ground: Florida's Mainstream Self-Defense Law
The shooting of Trayvon Martin by George Zimmerman has spurred national outrage directed towards Florida’s “Stand Your Ground Law.” Unfortunately, the discussion over this law has been marred by misinformation. Jeffrey Toobin, CNN senior legal analyst, erroneously claimed that the law “allows a disproportionate response; if someone comes at you with a fist, you can reply with a gun.” Many have described the “belief” requirement by implying that anyone who believes he is in danger can use deadly force, no matter how extraordinary his belief. These perceptions of the law are widespread—and wrong. As compared with other states, Florida’s “Stand Your Ground Law” law is neither extreme nor an outlier. The requirements of a successful self-defense claim vary only slightly by jurisdiction. In Florida, like most states, a person claiming self-defense must show that he (1) reasonably believed that such force was (2) necessary to protect himself against (3) the imminent and (4) unlawful use of force by another. The person claiming self-defense usually cannot be the initial aggressor. And to use deadly force in Florida, as Zimmerman did, a person must also reasonably believe that the aggressor threatened him with death, great bodily injury, or intended to commit a forcible felony (e.g., rape, robbery, or kidnapping). In short, under Florida’s “Stand Your Ground Law,” Zimmerman now must show that an average person in his circumstances would have viewed the Skittle-armed Martin as a mortal threat.
To these basic requirements, a minority of states add a general duty to retreat before using deadly force. Most states in this minority apply the rule only if the defender knows he can retreat with complete safety. In Florida before 2005, a person usually could not use deadly force if he could retreat without increasing his danger.
Under English common law (the source of the duty to retreat in American law), the duty to retreat was not a universal requirement of self-defense. While the common law required a person to retreat when he acted in self-defense “upon a sudden affray,” he had no duty to retreat when using deadly force to prevent a “forcible and atrocious crime,” such as murder, rape, or robbery. Sometimes, a person was duty-bound not to retreat, such as when he was summoned upon the “hue and cry” to aid the civil authorities to arrest a felon.
Although expanding Stand Your Ground laws has become part of the culture war, the existence of Stand Your Ground laws traditionally depended on geography, not politics. Older states generally inherited the duty to retreat from England. As the United States expanded westward, the retreat requirement usually did not follow. Instead, western states followed the “true man” doctrine (not to be confused with the “Truman Doctrine”), named because “true men” do not retreat when faced with danger.
With the prevalent use of firearms, the retreat requirement has limited application today. Individuals usually cannot know that they can retreat in complete safety when facing aggressors armed with guns. And the retreat requirement has numerous exceptions, in addition to the “Castle Doctrine,” which exempts people in their homes from the duty to retreat. For example, in those states that require retreat, law enforcement officers making arrests always may “stand their ground” when threatened, and, sometimes, private citizens making arrests are afforded the same privilege. Zimmerman’s right to use deadly force in self-defense under Florida law was approximately equivalent to—and certainly no greater than—a law enforcement officer’s right to use deadly force in a state requiring retreat.
This is not to say that completely eliminating the retreat requirement has no drawbacks. Eliminating the duty to retreat often makes it difficult to prosecute shady self-defense claims—such as bar fights and gang conflicts—when both parties should have simply walked away. Prosecutors have an easier time proving that a combatant could have safely withdrawn than convincing juries, beyond any reasonable doubt, that the person did not reasonably believe that he was in danger by “standing his ground.”
Zimmerman’s shooting of Martin fits into this “should have walked away” category. Zimmerman had called 911 and was instructed not to pursue Martin. Had Zimmerman complied, no one would have been hurt.
Nevertheless, even with Florida’s “Stand Your Ground” law, Zimmerman will have difficulty asserting a successful self-defense claim. Stand Your Ground Laws do not affect most basic requirements of pleading self-defense. Individuals using lethal force in self-defense must reasonably believe that they are in imminent danger of death or serious bodily injury. Assume Zimmerman honestly believed that the unarmed teenager presented a lethal danger. Florida law still requires him to establish that an average person, given the facts as Zimmerman knew them, would have reached the same inferences about the danger Martin posed and the necessity of using deadly force to avoid it. Zimmerman’s mere honest beliefs will not suffice.
Nor does the “Stand Your Ground” law permit individuals to use disproportionate force in self-defense. Zimmerman must demonstrate that he reasonably feared that Martin was going to kill him, cause great bodily injury (e.g., permanent disfigurement), or commit a forcible felony. And Zimmerman will have to show that he was not the initial aggressor.
There is no need to exaggerate the leniency of Florida law. Regardless of whether he should have walked away, Zimmerman now must show that an average person in his circumstances would have viewed Martin, candy-in-hand, as a mortal threat.