“Stand Your Ground” and Self Defense

With the controversy over the shooting death of Trayvon Martin and the later arrest of George Zimmerman, there has been a great deal of confusion in the media over what self defense is and how the Stand Your Ground law in Florida and many other States applies. A great deal of totally irrelevant issues are being brought into the matter which confuse something that is really pretty simple.

I am not a lawyer, but I studied Virginia’s Case Law on self defense extensively during the Ryan Frederick trial, so perhaps I can make this a bit more understandable.

Self defense is a natural right, and a legal defense of necessity. Florida’s Stand Your Ground Law is really little different from Virginia’s Common law on the subject. Though we have no written law specifying it in our code, Virginia is a Stand Your Ground State.

All that really means is that if you are in a place you are legally entitled to be, your own home, car, or a public street or place of business, you need not retreat before defending yourself, with deadly force, if you are in reasonable fear of loss of life or serious harm from the unprovoked felonious act of another.

Whether the threat is reasonable must be determined from your point of view, even if you are in error.  If you see someone running toward you brandishing a knife, you shoot him, and it is later discovered to have been a rubber knife, you were still acting on reasonable fear. However, ‘bare fear’ is not adequate. Simply because you see someone as menacing or even if they threaten you, there must be some overt act of immediate threat to justify force in self defense.

Likewise, if an unarmed person attacks you with his fists, and you reasonably believe you are in peril because you do not believe you are able to defend yourself confidently other than with deadly force, you can defend yourself with a weapon. Again, that belief must be reasonable as seen from your point of view. If your assailant is a 10 year old girl and you are an adult male, it would not be reasonable to believe you are in danger of being beaten to death.

But if you are in reasonable fear of serious injury or death, you can ‘Stand Your Ground’ and defend yourself with deadly force. If you kill your assailant, you have an affirmative defense of necessity. These cases are called ‘Justifiable Homicide.’

But what if you in some way provoked the attack, such as participating a brawl, or even if you were the aggressor? You still have the right to defend yourself with deadly force if you are in reasonable fear of loss of life or serious injury, but, you now have a duty to retreat. You must make it clear to your opponent you wish to quit the fight and then retreat as far as possible before escalating to the use of deadly force.  Still, even if you were initially in the wrong, you are not required to submit to execution by your opponent if he persists in the attack after you have withdrawn or if he will not allow you to withdraw. These cases of the use of deadly force in self defense after retreat are known as ‘Excusable Homicide’ but it is still a valid defense.

So, how does this apply to Zimmerman’s claim of self defense? If, as reported, Martin had Zimmerman on his back and was beating his head on the pavement, then the Stand Your Ground law is irrelevant. You can’t retreat into the ground, so even if he had a duty to retreat, it was satisfied.

Whether Zimmerman uttered a racial epithet to the police dispatcher, or profiled Martin because of race, or even if he struck the first blow is irrelevant. Zimmerman could have been in full KKK regalia and screaming racial taunts at the top of his lungs, or Trayvon Martin could have been a uniformed policeman,  once Zimmerman was on his back, unable to retreat any further, and in danger of losing consciousness(after which his opportunity to defend himself would no longer exist) he had the absolute right to defend himself by any means necessary, not just in Florida or Virginia, but in any State in the Union.

You can be executed only by the State, and only after a trial by jury.  There is literally nothing you can do which would require you to submit to execution by another person under any circumstance.

So, unless there is information held secret by the prosecutor, it is hard to imagine any reason for a 2nd Degree murder charge.  Or any lesser charge, for that matter.

http://tinyurl.com/sygandsd

 

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26 Responses to “Stand Your Ground” and Self Defense

  1. Thank youi for a smart, clear, and sensible explanation.

  2. Len Rothman says:

    We have gone back and forth on this at the Pilot. But that has its limits.

    Let me use this case as a point of departure and at least try to clarify for me your position regarding self-defense.

    1) Does an armed man have a greater responsibility to avoid potential conflict than an unarmed person?

    You said even if the armed person is the aggressor he has a right to defend himself, but he has a duty to retreat. Obviously, in the heat of battle with a scenario similar to the Martin-Zimmerman case, retreat is not an option. Keep in mind that the knockdown and head banging probably takes place over a few seconds and conversation is certainly limited.

    How would retreat take place?

    Frankly, it doesn’t and realistically it is not even possible.

    To me, carrying a lethal weapon and starting a fight sets up the expectation of using it in case the situation turns against the armed person.

    In my scenario above, I think the shooter would have to defend himself in court and should have to explain why he initiated a fight with a pistol in his pocket.

    And that there has to be some kind of contributory negligence, if not at least some kind of manslaughter charge.

    If you start a fight and kill a man with your fists, you would most certainly be charged with some kind of murder/manslaughter.

    Why would it make any difference if you killed him with a gun rather than your fists?

    2) We don’t know for sure why Martin struck first. Zimmerman hasn’t explained other than that he did.

    In court, they need to establish how Zimmerman was carrying his gun. Was it visible, In his hand or completely concealed? That would shed some light on the threat level perceived by Martin.

    Couple that with Zimmerman’s own words that Martin seemed to be trying to get his gun, and you have a man who felt he was fighting for his life, but had nothing but his fists.

    One of the questions the court hopefully will deal with it is who is screaming for help. Audio forensics, for now at least, seem to rule out Zimmerman. If that is the case and it was Martin, then I feel certain that Zimmerman is in serious trouble.

    The early dismissal by the police as a self-defense case rubs me the wrong way. When an unarmed man is shot to death by someone, a thorough investigation has to take place. That means forensics, hospital records, witness interrogations and testimony by the assailant (if he doesn’t take the 5th).

    Without that, it becomes a free for all, particularly when you toss in SYG laws. One person shoots another to death, claims SYG and the case is dropped.

    Carrying lethal weapons is a right, but it also comes with a huge responsibility.

    Much like hitting a pedestrian with your car. The onus of proving the accident was unavoidable lies with the driver. The pedestrian has to obey the laws also, but you have the 2 ton car which must be under your total control at all times. And if you showed bad judgement such as having been drinking, then the pedestrian could have been jaywalking, but your are going to jail.

    Just getting behind the wheel adds a whole new burden of responsibility for the driver.

    • Don Tabor says:

      The point you seem to be missing is that none of that matters if it is true that Zimmerman was pinned down and taking a potentially lethal beating. Were they standing toe-to-toe and duking it out, then Zimmerman could have run away and would have had a duty to retreat, but Martin was not allowing him to retreat.

      It doesn’t matter what happened before. Zimmerman could have shot at Martin and missed. Once he was pinned down and could not retreat, he has the absolute right to defend his life. After all, the law does not authorize Trayvon Martin to execute him without trial even for attempted murder.

      And remember that there is no evidence that Zimmerman did anything to justify the attack. The threshold for using force to defend your self requires an immediate threat of harm and an overt act. Just a menacing look is not grounds for violence.

      • Len Rothman says:

        Let’s forget the Martin-Zimmerman case.

        I am still puzzled how an armed man can start a fight and kill his opponent when he starts to lose, but cannot get away.

        “…even if you were the aggressor? You still have the right to defend yourself with deadly force if you are in reasonable fear of loss of life or serious injury, but, you now have a duty to retreat.”

        If he were unarmed, started a fight and killed his opponent, he would certainly be charged with a crime, would he not?

        Even if he didn’t kill his victim, he would still be charged with assault.

        To keep the scenario simple, the aggressor purposely throws the first punch, the fight begins and he is losing, but cannot get away.

        He throws a punch that knocks the opponent back, he hits his head and dies. Or the punch hits the trachea or ruptures an artery.

        This has happened numerous times. People have died in fist fights.

        The charge is at least involuntary manslaughter.

        Or could the aggressor say that at some point during the fight he feared for his life and dealt a lethal blow as self-defense?

        He didn’t mean to kill him when he started the fight, but he did.

        I don’t think that would be an effective argument in court.

        Now would putting a gun in the hand of the aggressor who starts to lose, but cannot get away change that to legitimate self defense?

        Suppose the opponent spots the gun coming out before the original aggressor can fire. He struggles to get the gun, cannot, and resorts to pummeling the man even more to try to knock him out before he can shoot.

        Does the opponent have that right to kill or maim the aggressor because he saw a gun being drawn while they rolled around on the ground?

        Finally, the aggressor manages to keep the gun, and kills the opponent.

        It seems to me that your position is that whoever feels that the fight is turning for the worse, which could shift back and forth several times, has the right to kill in self defense.

        Regardless who started the fight or who was armed.

        I think the supposition that an armed man can start a brawl with his fists, but finish it with a gun, and claim self defense is, well, indefensible.

        He might as well shoot first and save the preliminaries.

        Anyone who starts a fight does not expect to lose, as a matter of fact they definitely expect to punish the victim. If the aggressor is armed, he would obviously expect to shoot if things turn sour.

        That is aggravated assault from the beginning, and at least manslaughter if he kills his victim.

        How can that ever be self-defense for the aggressor?

        Got a big, burly neighbor you don’t like?

        Start a fight and let him beat you while you are on the ground, then pull your gun and kill him.

        I think the responsibility for serious injury or death lies with the aggressor, armed or not.

        The aggressor broke the law when he threw the first punch and committed assault.

        Is that any different than an armed robber who kills a 7/11 employee who pulled out a gun?

        “I didn’t mean to kill him, just rob him (or beat him up) and I was just defending myself.”

        • Don Tabor says:

          Look at it the other way.

          Assume, contrary to your nature, you have assaulted someone, and find yourself in Zimmerman’s position, pinned down, being pummeled by someone who has proved to be able to defeat you, but you are armed.

          You are being beaten near unconscious, and if you lose consciousness, you will have no way to stop your opponent from killing you. So, in that moment, is there any punishment the State can impose that will stop you from using your weapon to save your life? Even if the State were to execute you, you would still live longer than if you did not take action.

          That is why self defense is called a defense of necessity. Your only other choice is death, and the law cannot require you to accept death other than by due process in court of law.

          If you committed some crime leading to that circumstance, such as the assault on the person you eventually defended yourself against, you can be tried FOR THAT PREVIOUS CRIME, but you cannot be tried and convicted for defending yourself subsequently.

          • Len Rothman says:

            So the 7/11 robber that kills a clerk that pulls a gun cannot be tried for murder, just robbery.

            Is that really what you believe?

  3. Don Tabor says:

    IF the 7/11 robber has surrendered or run away and the clerk chased him down to kill him, then yes, he can defend himself.

    Having initiated the robbery, he has a duty to retreat, but he does not have a duty to allow the clerk to execute him after he does so.

    • Len Rothman says:

      This has been interesting. I understand what you are saying and most of the example we have posed are hypothetical and perhaps a bit simplistic.

      We have both assumed that all fist fights are to the death, and though some are, I would bet that most brawls among the unarmed end in bruises and bloody noses.

      Also, the duty to retreat is kind of wishful thinking. I am not sure most people would turn and run while facing a gun held in the hand of an angry aggressor. Hard to outrun a bullet.

      Yet I still have this nagging feeling that if you are armed and instigate a fight that results in the opponent’s death, you would bear a burden of responsibility. After all, if during the fight you killed him with a punch or he hits his head, you would certainly be arrested for manslaughter.

      If you shot him instead, the defense of necessity, you cannot be absolved of responsibility. You have at least contributory negligence since you would expect to escalate to weaponry should you lose your advantage.

      It may even fall into the category of premeditation since you expect to hurt him with your fists, and if that fails because he was tougher than you expected, you have the gun.

      Of course, the armed aggressor would have to prove in court that he felt his life was in danger from the man he assaulted. And that is something a jury may not buy.

      We have used the phrase “duty to retreat” a lot.

      But is that not obviated by the Stand Your Ground laws.

      My understanding is that you do not have to retreat, but just feel threatened by possible injury or death.

  4. Don Tabor says:

    The question of a duty to retreat is the essence of Stand Your Ground Law, whether written as in Florida or in common law as in Virginia.

    Basically, if you are the victim of an unprovoked attack and are in fear for your life or serious harm, you need not retreat before employing whatever force necessary to end the threat.

    If you are the aggressor, or an equal participant in the altercation, you have a duty to retreat before employing deadly force. A Duty to Retreat means you must quit the fight, and attempt to withdraw.

    That is why it is important if one is in an altercation that you allow your opponent to withdraw if he is defeated, if you press the attack, after he is defeated, you must expect he will escalate to deadly force if it is available to him.

  5. Dean says:

    Gentlemen, that was a lively exchange. Very interesting and informative. However, I still didn’t get an idea of what Zimmerman could face. After proving that he targeted Martin who was doing nothing wrong, following Martin after being told not to, carrying a firearm against the watch policy and possibly trying to apprehend Martin for the police that he knew were coming thus starting the fight, that Martin, fearing for his own life and safety from the creepy man following him, could be shot dead by Zimmerman with no repercussion from the law. I just don’t see it. Help me with that.

    • Don Tabor says:

      OK,its really simple. While I do not accept your characterization of the events, even were they accurate, no one is required to allow another to kill them. Once Zimmerman was pinned down and suffering what could be a fatal attack, nothing that happened before requires him to allow Martin to bash his skull in. If he cannot escape and is in danger of death he is allowed to defend his life with deadly force.

      If it could be proved that Zimmerman assaulted Martin, and there is no evidence of that, then he could at most be prosecuted for that assault, but once Martin had him where he could not retreat, his right to defend his life is absolute.

      • Len Rothman says:

        I would assume, then, that if Zimmerman did draw his gun and Martin saw that in time to bash his head one more time, killing him, that Martin would be equally innocent based on the right to self-defense.

        Martin would have to assume that Zimmerman was going to kill him and there was certainly no way to retreat since he had to act very quickly.

        This would be regardless of who started the fight, correct?

        • Don Tabor says:

          Except that Martin, having started the attack has a duty to retreat prior to use of deadly force.

          If, seeing Zimmerman draw the gun, put up his hands and backed off, and Zimmerman continued his efforts to shoot him, Martin would be justified in stopping him by whatever means necessary. But having been the instigator of the physical confrontation, he has the burden of a duty to retreat, no excuses. Since Martin created the up-close nature of the battle, the need to act quickly is his own creation and does not exempt him form a duty to retreat.

          Once you strike the first blow, your obligations regarding self defense are changed, and the duty to retreat(break off the fight and indicate you do not wish to continue) is absolute. That’s the difference between bare fear and an overt act. Simply fearing someone might want to hurt you does not allow you to use deadly force, but a physical attack that has the potential to cause severe injury or death allows you to respond. A physical assault crosses a line that must be recrossed to start with a clean slate.

          • Len Rothman says:

            You can’t have it both ways. If Martin saw the gun been raised he is not required to let Zimmerman shoot him. If he retreats, he is still in range to be shot. After all, Martin would have to assume that Zimmerman is going to shoot at that point in the fight.
            How could he think otherwise?

            To rephrase your position:

            If it could be proved that Martin assaulted Zimmerman, then he could at most be prosecuted for that assault, but once Zimmerman had him where he could not retreat, his right to defend his life is absolute.

            We know that Zimmerman pulled the gun and shot Martin rather quickly. The yelling, the worlds “no,no” were immediately followed by a shot. Obviously, neither party had the opportunity to retreat.

            If it turns out that it was Martin’s voice, then he did try to retreat by trying to call an end to the fight.

            This whole fight did not last more than seconds. Both parties were given really no chance to retreat and both must have thought they were in mortal danger.

            Like I said on the Pilot blog, it is almost certain that had Zimmerman not been armed, he never would have left the safety of the vehicle. To risk unarmed confrontation with someone he described to the police as a drug addled thug with something in his hands would really be a dumb move.

            Then Martin would be alive and Zimmerman would have his freedom.

          • Don Tabor says:

            Len, you’re really stretching it. Martin had the duty to retreat if he initiated the attack. If there was not time to deescalate, too bad for him. Zimmerman had no duty to retreat unless he put hands on Martin. Martin seeing the gun after starting the attack does not change the fact that he did have a duty to retreat. Its really pretty straightforward when you aren’t committed to complicating it.

  6. Len Rothman says:

    Don,

    I thought I would let you know that I ran my position by one of my very best friends, a retired circuit court judge (and he is a liberal on most issues), and he agrees with you.

    He said that knowing what he knows about the case, which is not the same as being an actual judge at the trial and being privy to a lot more information, he would acquit.

    I thought I should pass this on in the interest of fairness in the lengthy discussion we have had on this issue.

    That being said, I still feel Zimmerman bears some kind of responsibility for reckless behavior that led to tragedy.

    In the same way a driver of a car has a lot more responsibility to be careful and do everything possible to avoid an accident with pedestrians or cyclists.

    If the speed limit is 50mph, but the conditions are heavy rain and darkness, then the driver who does not respect the conditions and keeps driving at 50 and kills someone is going to face some kind of consequences revolving around negligence or reckless behavior.

    It seems that Zimmerman should be cleared of murder, but he should be responsible for contributory negligence.

    IMHO.

    Perhaps that is where civil charges by the family may provide, in my mind (outnumbered-and outgunned-as I am here).

  7. I think defining “retreat” as exclusively backing up is overly simplistic. Just b/c Zimmerman couldn’t “retreat into the pavement” doesn’t mean he had no way to retreat short of killing his assailant. Surely “retreat” means resolving the situation short of deadly force, not simply “backing up.” Pistol-whipping, firing a warning shot, shooting to maim are all options for retreat that Zimmerman possessed. If you are armed and initiate a confrontation, you have taken on a responsibility to resolve the incident without deadly force, even if it puts your life at risk. That isn’t Florida law, but it should be. Gun ownership isn’t just a right, it is also a responsibility.

    • 2small2fail says:

      I agree with you wholeheartedly. If the responsibilities attached to gun ownership were codified into law, that would certainly go a long way to rounding off the prickly issues related to self defense, and particularly SYG. I don’t care what anybody says, the research so far mostly indicates that SYG tremendously magnifies the justifiable homicide numbers while having only a modicum of effect on actual crime.
      I find that unacceptable.

    • Charley Vu says:

      I’m sorry, none of this makes sense.

      First of all, where does it say “retreat” = resolve the situation short of deadly force?

      Pistol-whipping someone is pretty much equivalent to punching someone. If your assailant is bigger and stronger than you, your pistol-whip/impact weapon may not have much of an effect.

      Firing a warning shot is highly negligent behaviour as you don’t know where that shot is going.

      “Shooting to maim” is hard when you are fighting in such close range. The more time it takes to try and actually point your firearm at an extremity, the higher chance for a gun grab or you going unconscious (and then possibly being killed with your own gun)

  8. Mike Wade says:

    One thing that is overlooked in these points given, is that Zimmerman did have the chance to retreat. The police dispatcher told Zimmerman not to pursue him. Zimmerman was probably feeling secure in the fact that he was armed. So he pursued. Wouldn’t that be an instigation? Martin, a kid, was walking along at night. He is then shadowed by an unknown person. Zimmerman obviously profiled the guy as a “black man up-to-no-good”. In most neighborhood watch programs, Zimmerman was breaking the code of conduct in the first place. 1st: neighborhood watch programs tell you to work in teams. Did he call for anyone to assist other than the police? 2nd: Never carries weapons of any kind — e.g. guns, black jack, mace, baseball bat, or knives. We know he broke that code of NW. 3rd: Wears identifying clothing -t-shirts, caps, vests, .jackets-or reflective clothing or patches. Did he ever identify himself? Was he wearing anything that signified what he was doing? 4th: Never challenges anyone. He called the police. They told him not to pursue. He did, which escalated the situation. Maybe Trayvon was worried about being followed at night by some wierdo and confronted him to scare him off. If Zimmerman listened to the police in the first place, Trayvon would still be alive. If someone pursues me at night, it will trigger a fight or flight response. TYrayvon sounds like he was cutting through peoples yards, so maybe he was avoiding and Zimmerman…who got close enough for a fist fight….triggered the fight response. It’s Zimmermans word against his witness. The witness being dead. Thus, not allowing Trayvon to give his side of the story which could very well have been his own “Stand Your Ground” story. Zimmerman was armed and initiated the confrontation.

    • Don Tabor says:

      Were Zimmerman asking for a “stand your ground” hearing, that would all be relevant, but this case does not call on SYG, it is straight self defense, so if Zimmerman called for help, indicating he wanted to quit the fight, and retreated, or was prevented from retreating, then self defense applies.

      He could have been wearing a Klan hood and could have struck the first blow, and it would make no difference under the law. If he announced he was quitting the fight and did his best to retreat, and reasonably believed Martin would do him serious harm if he did not respond with deadly force, then nothing before that moment matters.

      The question here, as is always the case with juries, is whether they will follow the law or emotions.

  9. 2small2fail says:

    I don’t understand why Zimmerman chasing after Martin in the first place doesn’t establish him as the initial aggressor. We know from the testimony that Martin feared Zimmerman was a danger to him and that is why he ran. If Martin had killed Zimmerman when Zimmerman came running after him around the building, how would that be viewed under SYG?

  10. Heneryg says:

    I was always taught that when you initiate a crime you have given all your rights away! Go into rob a store and you get shot or killed its on you! If you break into someones home you have violated that homeowner and should suffice your bad fate

  11. Mark Sawyer II says:

    As an Staunch Advocate of Second Amendment Rights with a firm Belief that All Citizens who lawfully arm themselves have an obligation to themselves and all other citizens to protect themselves by any means to which the loss of life is prevented, theirs as well as all others.
    As a Lawfully Armed Citizen It is my responsibility to avoid any conflict, that is within my control. Knowing this and knowing that a larger percentage of conflicts or situations wherein a lawfully armed citizen has had to resort to use of force to end the situation were well beyond their control and they had to stand their ground.

    I can not grasp why it is the feeble minded few who constantly look at one instance of self defense (which was not tried on the Stand My Ground laws) as an vocal point to shout about. A jury of His Peers found him to be not Guilty, by reason of evidence or lack of such evidence any party to speak on their personal beliefs of that situation not being an Actual witness would be considered hearsay.
    Granted we are all entitled to our own opinion let us not misconstrue the topic at hand.
    Virginia Needs to look at Colorado and Texas law Castle Doctrine, and Make My Day Laws, Similar to Stand My Ground Laws with a lot less negative press.
    As another poster stated, When you decide to commit a crime you have forgone your rights, If someone enters my home, attempts to cause harm outside of my home to myself or my family in my presence and God Forbid I am forced to defend myself or my Family that the very people who have stood opposed to the outcome in Florida, will not be on my Jury,
    As I see it It is better to be Judged by 12 than carried by 6. Take it as you will, I will defend myself, My Family and My Home the same way that we have asked our Military to defend our Country, and Our Freedoms, with deadly force if necessary.
    Until you have been in a position to have no choice but to defend yourself with deadly force, and lived through the nightmares, you can even begin to understand the entire thought process that happens in less than .05 of a second.
    Those who chose to Carry Concealed, or Open have a responsibility to do so with the highest regard to life theirs and all others.
    And Our State Lawmakers have taken a sworn Oath to defend our rights, if that means that every time a law is meant to chip away at our rights then they have to be able to quickly remove, and make sure that we have our Constitutional Rights.

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