The View from the Right
by Gregory Conterio
When history looks back upon the George Zimmerman trial, there will doubtless be much wonder about all the fuss. After all, based on all the available evidence and witness testimony, this was a clear-cut, almost textbook case of self-defense, as anyone acquainted with the facts already knows. But future readers of history will not have the “benefit” of the fifth-column of our contemporary media distorting the facts, and informing them of the politically correct opinions they need to hold if they ever hope to be invited to all the really exclusive cocktail parties.
Leaving aside the undercurrent of White on Black racism which is supposed to be the Most Defining Element of this affair, there is a legislative element that is almost equally in the news, especially after U.S. Attorney General Eric Holder highlighted it in a speech to the NAACP on July 16th. This is the so-called stand your ground law.
Stand your ground is an extension of what is known as the Castle Doctrine, which generally establishes an individual right to defend himself in his abode, including use of deadly force, without a duty to retreat. Generally speaking, Castle Doctrine protects an individual from civil or criminal prosecution under certain circumstances when defending himself or others while in his home. Stand your ground essentially extends this protection to certain other places, like your car, your workplace, or in some cases any place you have a legal right to occupy, like a public sidewalk. What Stand your ground basically means is you have no duty to retreat in the face of a reasonably perceived threat to life or limb.
According to Holder, more than 30 states have passed some form of Stand your ground law, which makes nailing-down exactly what such a law really means challenging. While there are numerous differences in detail, I would submit that two qualifications put a state into the stand your ground category: no duty to retreat, and a reasonable belief that force, including deadly force is necessary in order to prevent death or great bodily harm. Based on these to general criteria, thirty-one states currently have stand your ground laws.
Click here for state bills proposing changes to “Stand Your Ground” or “No Duty to Retreat” laws.
With all the attention the laws are getting in the wake of the Zimmerman case, some states are considering changing their statutes. Mississippi for example introduced a bill earlier this year, HB1040, which would have removed the immunity from prosecution clause of their stand your ground law, although the bill died in committee. New Jersey on the other hand has introduced a new stand your ground bill, A886, so apparently some people still think it’s a good idea, even in a blue state, despite the outcry stirred up over the Zimmerman case.
In Florida, stand your ground was passed in 2005, and is defined in Title XLVI, Chapter 776 of the Florida Statutes. One of the criticisms of Florida’s Stand your ground law is that it is “vague” and “overbroad” but if you read the statute, it is really quite explicit. In terms of defining when it is permissible to use deadly force, it applies exactly the same standard as self-defense, which is to say you must have a reasonable belief you are in imminent danger of death or great bodily harm.
In Florida, stand your ground has been under attack by the political left since the moment it was proposed, and is singled-out by many allied cohorts almost every time a high profile shooting makes the news, and the Zimmerman case has been no exception. In the wake of the Zimmerman verdict, Al Sharpton has called Stand your ground the “..worst violation of civil rights in America” and is leading protests to try to pressure the state into repealing it. Jessie Jackson has called Florida “..an apartheid state” and is calling for a general boycott. Perhaps most tendencious of all were the remarks of President Obama himself, saying “Trayvon could have been me 35 years ago.” This caused me to wonder if teenage Barack Obama was prone to physically assaulting white-looking males who he thought might be following him, since that is what all the known evidence in the Zimmerman trial indicates happened, but I digress.
All this consternation over stand your ground in the fallout of the Zimmerman verdict obviously raises the question: what does anyone think would have happened differently, from the night Martin and Zimmerman met, to the verdict in the trial, if there had been no stand your ground law? The answer is, nothing! Stand your ground was not a part of Zimmerman’s defense. It also could not have informed Zimmerman’s behavior if he was knocked on the ground and immediately assaulted by Martin the night of their altercation. The Zimmerman case was a textbook example of self-defense, and would be exactly that even if there was no stand your Ground law. Stand your ground had absolutely nothing to do with the concealed carry permitting practices and procedures in Florida, so it would not have prevented Zimmerman from obtaining a gun, and carrying it with him that night. Stand your ground had absolutely no part in the events the night Martin was shot, no influence on the investigation, was not raised in any way as part of Zimmerman’s defense, and played no role in the jury deliberations. The truth is, there is no rational basis to be going after the stand your ground law in Florida, or anywhere else for that matter based on the Zimmerman trial, because there is no connection between the two things. If one wants to understand why there is an effort to repeal the law connected to the Zimmerman verdict, one only has to recall the not-so-old saying, “You don’t ever want a crisis to go to waste.”
The View from the Left
Derek Smith
It requires a somewhat simplistic mindset to consider the Zimmerman case “clear cut” in either direction. To be fair, I do not feel there is a specific reason to disbelieve Zimmerman’s account of the confrontation; I have enough respect for the standard of “beyond a reasonable doubt” that I would not have returned a guilty verdict for the charge of second-degree murder. However, while I don’t necessarily believe he is lying, I am also not fully convinced that his version is completely accurate—therein lies the inherent difficulty in a homicide investigation in which the only real witnesses are the accused and the deceased. Any case can seem clear cut when you’ve only heard one side’s version of events. Had Travyon Martin lived, he may have told a different story that was more believable than Zimmerman’s.
Of course this is all speculative, but that is exactly where one of the main problems with Florida’s law lies—it actually obstructs the pursuit of truth. I do not actually disagree with the main principle behind Stand Your Ground laws; the devil is in both their details and the broader societal values their language reflects.
Over-immunity from “prosecution”
One of the first big controversies surrounding the incident was over the 6-week delay in arresting and charging Zimmerman with Martin’s death due to the immunity section of Florida’s self-defense statutes, section 776.032:
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force … the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
While I generally don’t like making the jobs of prosecutors and police too easy, this policy seems to prefer trusting ignorance over thoroughly investigating the facts, and diminishes the seriousness of even justifiable homicide. I would almost argue that a better policy would be to require police to detain in custody any person who kills another for a short time in order to initiate an investigation. True, this may be a seen as an injustice for those who legitimately do act in self-defense, but it is a fairly minor, understandable price to pay given the intentional killing of a human being. It might also be a good thing to provide an incentive for people to at least consider non-lethal methods of self-defense before using deadly force; a policy of “if you murder someone, say this, and the police can’t even arrest you” seems a bit too inviting.
To be clear, I am not advocating such a requirement, I am merely suggesting that the near opposite of the immunity statute would be better than the current policy. In situations without other reliable witnesses—such as Zimmerman’s case—Florida’s immunity law essentially says police must take the word of the survivor of the conflict (detractors have thus begun using the moniker “Last Man Standing” law). In my experience with the criminal justice system, if you ask defendants charged with assault, attempted murder, or murder, you find a remarkably high rate wrongfully accused “victims” who acted in self-defense.
One very sensible and modest way to improve Florida’s immunity from prosecution statute would be to narrow the definition of “criminal prosecution” in 776.032 (1) by eliminating the prohibition on “arresting, detaining in custody,” while leaving the immunity from being charged or prosecuted unless there is probable cause that the use force was unlawful. Federal constitutional caselaw requires charges to be brought within 72 hours of detaining a suspect (and many states impose a 48-hour requirement), so this would at least prompt a more immediate investigation into whether such probable cause exists. Generally speaking, the sooner an investigation into a homicide begins, the better—we don’t want to give people time to conceal evidence, work out a consistent story, or to unintentionally forget or misremember details.
While the ability to detain persons claiming self-defense would not make every investigation more conclusive, it could at very least have some symbolic effect — for example, had police arrested and detained George Zimmerman immediately after the shooting, then released him a day or two later with a statement that they had investigated the facts but did not have probable cause to charge him, there might have been less public outrage from the onset. Although the police and prosecutors were merely following the law of the state, it gave the appearance of lack of concern over the death of a young black person (and/or an implicit presumption that it is reasonable to expect serious harm from black people at night).
This exact change to the immunity statute was proposed by state Sen. Christopher Smith in S. 0136, along with some other very sensible changes, but unfortunately died in committee in May. Even more unfortunately, legislators in some other states are trying to add immunity language to their self-defense statutes taken verbatim from the Florida law—a New Jersey bill added such a section along with a new section of superfluous Stand Your Ground language that applies to situations already covered by their self-defense laws. Going even further in the wrong direction, one Iowa bill would require payment of compensation to anyone just arrested but then found to be have been justified in their use of force.
Encouraging vigilantism
Another sensible change to Stand Your Ground laws that has surfaced, but not yet passed, is more specifically tailored to the facts of the Zimmerman-Martin incident by adding to the list of those excluded from claiming justified use of deadly force. The same Florida bill from Sen. Smith discussed above would have made the justification unavailable to a person who either:
“(3) Leaves a place of safety to place himself or herself in proximity to a situation likely to result in a use of force; or (4) Pursues an alleged trespasser or assailant after the alleged trespasser or assailant has withdrawn or when the incident that gave rise to a previous confrontation has ended.”
Alabama’s HB 212 does an arguably better job of addressing the Zimmerman facts with some less ambiguous standards, by withholding the justification defense from someone who “initially pursued another person engaged in a lawful activity in a public place and the pursuit resulted in a confrontation and the use of force, including deadly physical force, against the person initially pursued.” These are admittedly quite specific situations that are not likely to arise often, but explicitly excluding them reinforces our disfavor of vigilantism.
While the principle of self-defense behind Stand Your Ground laws is fine, and only a few of their details need changing—immunity, adding the caveat that one may not pursue others for no reason and then kill them in self-defense if they don’t happen to like being pursued—it’s their rhetoric and the culture that drives them that bother me. Particularly when combined with concealed-carry laws, Stand Your Ground seems to be an attempt to codify an Old West justice system based on shoot-first vigilantism. They create situations in which two people who are each doing nothing wrong, but have overly-heightened “reasonable” suspicions of the other, can both legally kill each other. I understand that many folks in the South and the West like to play cowboy, but there is a reason that in civilized societies, we try to leave law enforcement to the police. If George Zimmerman had done just that, Trayvon Martin would not be dead.
Why should we care about Stand Your Ground laws now?
Defenders of Stand Your Ground laws like to suggest that Stand Your Ground played no role in Zimmerman’s case, and so all the negative attention and calls for changing the law are misdirected. True, Zimmerman’s defense did not actually cite that portion of the self-defense law, nor would that law have even been applicable in Zimmerman’s version of events.
But believing that Florida’s Stand Your Ground law played no role in this case is borderline delusional. That’s all we’ve heard about in the media for the last year or so with respect to the shooting, as it was previously the presumed defense, and jurors are not unbiased troglodytes drawn out from their caves immediately before trial. Let’s also take a look at page 12 of the final jury instructions in Zimmerman’s trial:
“If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.” (emphasis added)
This doesn’t prove that jurors made their decision based solely or even partly on the Stand Your Ground section of the law, but it casts a good deal of doubt on the suggestion that it’s a completely separate issue.
The even stranger part of the argument that attention on Stand Your Ground is misdirected is the implied principle that if a problem isn’t immediately relevant, we shouldn’t try to correct it. Sure Zimmerman’s defense didn’t use this law, but the case got everyone in the nation to pay attention to Stand Your Ground, and many people have decided they don’t like this policy and would rather see these laws changed. It makes sense to try to take action on something when the attention is high, even if the immediate relevance is low. But apparently we’re supposed to wait after until a more specifically relevant tragedy to attempt a post-hoc correction to a bad law.
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