Yesterday I asked what people have in mind when they criticize "stand your ground" laws in connection with the shooting of Trayvon Martin. NAACP President Benjamin Jealous seems to think Florida's "stand your ground" law was responsible for George Zimmerman's acquittal, although it is hard to see how, since Zimmerman's account of his fight with Martin, which apparently was accepted by the jury, left no room for retreat. Attorney General Eric Holder understands that the essence of "stand your ground" is abolishing the duty to retreat for people attacked outside their homes, and perhaps that is why he does not blame that legal provision for Zimmerman's acquittal (although he did draw an implicit connection in his speech to the NAACP yesterday). The editors of The New York Times, by contrast, clearly do not understand the nature of the self-defense laws they are criticizing. In a recent editorial titled "Trayvon Martin's Legacy," they opine:
The jury reached its verdict after having been asked to consider Mr. Zimmerman's actions in light of the now-notorious Stand Your Ground provision in Florida's self-defense law. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she "reasonably believes" it is necessary to prevent death or great bodily harm—a low bar that the prosecutors in this case fought in vain to overcome.
These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of "reasonable belief" is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.
This description of Florida's self-defense law makes no mention of the duty to retreat, which the "stand your ground" bill enacted by the state legislature in 2005 eliminated for people attacked in public places. (The same legislation also beefed up the "castle doctrine" for people attacked at home, creating a presumption that an intruder poses a threat justifying the use of deadly force and extending the doctrine to vehicles.) Holder and other critics of such laws argue that eliminating the duty to retreat condones and perhaps encourages violence in situations where it is not truly justified. But according to the Times, the real problem with Florida's law is that "a person may use deadly force if he or she 'reasonably believes' it is necessary to prevent death or great bodily harm." One difficulty with this argument is that the standard to which the Times objects was not created in 2005; it was part of Florida's self-defense law before the "stand your ground" statute was adopted. That means Zimmerman could have successfully made exactly the same self-defense claim before 2005.
What's more, Zimmerman could have won acquittal based on the same defense in states that continue to impose a duty to retreat. States such as New York, where the use of deadly force is permitted if "the actor reasonably believes that [the] other person is using or about to use deadly physical force." Or New Jersey, where lethal force is justified if "the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm." Or Connecticut, where deadly force may be used when "the actor reasonably believes that [the] other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm." Why is the "reasonable belief" standard condemned by the Times appallingly reckless in Florida but not in New York, New Jersey, or Connecticut?
As I said, all three of these states impose a duty to retreat in public places. But retreating is not an option for a man pinned to the ground by an attacker who is pummeling him and knocking his head against the pavement. One need not fully accept Zimmerman's story to recognize that the jurors (judging not just from their verdict but from Anderson Cooper's interview with one of them) believed he was telling the truth about certain crucial facts: that Martin attacked him, knocked him down, straddled him, and was assaulting him in a way that made Zimmerman reasonably fear for his life at the moment he fired his gun. There would have been no opportunity to escape in those circumstances, making the right to stand your ground irrelevant. Hence Zimmerman could have won acquittal in New York, New Jersey, or Connecticut with the same story.
One other thing to note about the duty to retreat: It is debatable how much difference it makes in practice given the way it is often qualified. In New York, for example, the victim of a public assault is expected to retreat rather than use lethal force only if he "knows" he can do so "with complete personal safety" for himself and others. There is also an exception for someone who "reasonably believes that [the] other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery." New Jersey and Connecticut likewise mandate retreat only if it can be done with "complete safety." Since turning your back on an aggressor is always risky, that qualification creates a pretty big loophole. This reality may help explain why Bernie de la Rionda, the chief prosecutor in the Zimmerman case, says "the law [in Florida] really hasn't changed all that much" since 2005.
If the difference between a "stand your ground" law such as Florida's and a duty-to-retreat law such as New York's is smaller than it looks at first glance, that would weaken arguments for copying Florida's approach as well as arguments for repealing all such statutes. I am not fully convinced either way, although I am sympathetic to the argument that it is unfair to expect the victim of an assault to demonstrate that he had no opportunity to safely retreat. Look where that expectation led in the case of Marissa Alexander, the Jacksonville, Florida, woman who got 20 years for firing a warning shot to scare off her abusive husband. (A judge rejected Alexander's "stand your ground" claim at a pretrial hearing, indirectly imposing a duty to retreat by finding that her failure to leave the house suggested she did not truly fear for her life.) So by all means, let's have a debate about the merits, in terms of justice and public safety, of "stand your ground" laws. But first let's be clear what we're talking about.