Hung Up on 'Stand Your Ground'

The absence of a duty to retreat does not explain the outcome of Michael Dunn's murder trial.

At the center of the case against Michael Dunn is a disappearing shotgun. The middle-aged software developer claims 17-year-old Jordan Davis threatened to kill him with it during an argument over loud music at a Jacksonville, Florida, gas station in November 2012. But police never found a gun, and no witness reported seeing one.

It seems at least one juror nevertheless found Dunn's story plausible, since his trial ended last week without a verdict on the murder charge related to his shooting of Davis. But it is hard to see how that outcome can be attributed to Florida's "stand your ground" self-defense law, which has been widely blamed for hanging the jury.

The jurors did agree that Dunn was guilty of attempted second-degree murder when he fired at the Dodge Durango in which Davis was riding with three other teenagers. Under Florida's mandatory minimum sentencing rules for crimes involving a firearm, Dunn faces at least 20 years in prison for the attempted murder counts and a related charge, and his prison term could be as long as 75 years if he is required to serve the sentences consecutively.

Prosecutors plan to try Dunn again on the murder charge connected to his shooting of Davis. But there is no evidence that their failure to win a conviction the first time around had anything to do with the fact that Florida does not impose a duty to retreat on people who are attacked in public places, which is the essence of "stand your ground."

Dunn's lawyer did mention that aspect of the law during his closing argument, and it was mentioned again to the jury as part of the standard instruction for a homicide case in which the defendant claims he acted in self-defense. But it did not come up during any other part of the trial, and its relevance is not at all obvious.

Confronted by an angry, shotgun-wielding teenager who had just threatened to kill him, could Dunn simply have gotten into his car and driven away? Maybe. Could he have done so safely, which is a standard condition for the duty to retreat? Probably not.

Given the fishy elements of Dunn's story—the unseen shotgun he never mentioned to his girlfriend, the fact that the teenagers did not shoot back, his failure to call the police—it is surprising that the jurors hung on the murder charge, especially since they could have convicted him of second-degree murder or manslaughter instead of first-degree murder, which requires premeditation. But critics of what The New York Times calls "Florida's expansive self-defense statutes" do not cite any special feature of state law that explains the jurors' disagreement.

Instead the critics tend to focus, as the Times does, on the challenge of deciding whether Dunn reasonably believed he faced a deadly threat that could be neutralized only by shooting Davis. That sort of challenge is not unique to Florida or limited to "stand your ground" states.

The reasonable-belief standard was part of Florida's law before the state legislature eliminated the duty to retreat in 2005, and it is part of self-defense laws in states that New York Times editors no doubt consider more enlightened, such as New York, New Jersey, and Connecticut. This standard is not some crazy idea invented by Florida gun nuts; it is the conventional approach in the United States.

As with the George Zimmerman trial, which ended in an acquittal last summer and had even less to do with "stand your ground," the Times has insisted from the beginning that the Dunn case is "another test of Florida's broad self-defense law." Having said that over and over again, the Times ran a post-verdict "news analysis" under the headline "Self-Defense Law Hung Over Florida Jury."

How much evidence did the Times offer to back up that assertion? As much as Michael Dunn offered to back up his claim that Jordan Davis had a shotgun.