TALK BACK - In his CityWatch article, Jonathan Deer refers to the “Castle Doctrine” which allows the use of deadly force against an intruder in ones home without having to first retreat to a place of safety. He then criticizes Florida’s, and by extension other states’, so called “stand your ground” statutes as taking “an enormous step further” by extending the “no retreat” doctrine beyond the boundaries of one’s home.
Is this, as he implies, a new and dangerous concept confined to a few radical states? I will examine this premise without attempting to justify these laws or any of the recent and tragic results of the use of deadly force by people claiming to have acted in self defense.
The concept of self defense means if a person is attacked and reasonably believes they are in imminent danger of suffering great bodily injury or death, they may respond with that force they reasonably believe necessary to protect themselves.
The important elements of this defense are that 1) the belief of possible injury must be reasonable; 2) the threat of injury must be imminent, not something threatened in the future; and 3) the force used to repel the threatened injury must be appropriate. Therefore, if someone is hitting you with a nerfbat you can’t shoot them but you can push them away. But, if the bat is a Louisville Slugger, i.e.-.something that can definitely inflict great bodily injury or even death you can respond with deadly force.
What Mr. Deer’s article criticizes is the concept that you can immediately respond to the attack with deadly force instead of first attempting to running away from the guy with the Louisville Slugger. Is this really a new or even radical concept when considering the law of self defense? The simple answer is no.
Is there more than one “stand your ground” law in Florida? If so, how do they differ? Are they completely out of step with the laws of other states?
Florida’s “self defense immunity statute Title XLVI, section 776.032, provides that one who uses permitted force in defense of themselves or others against another is immune from both criminal prosecution and civil liability. The person who claims immunity under this law may have a hearing with a judge before trial, or even before arrest wherein the prosecution must show by a preponderance of the evidence (that it’s more likely than not) that the person’s use of force was unlawful. Even if the prosecution meets this burden, the person using force may raise the issue of self defense at trial.
Florida statute Title XLVI, section 776.012 defines what Mr. Deer referred to as the Castle Doctrine; an idea that originated in Roman times. The statute provides that if someone is breaking into or has already “unlawfully and forcibly” entered your house, it is presumed they mean to harm you and, therefore, you can use force including deadly force to repel them.
Subsection (3) of this statute says that if a person is attacked by another while in a place that person has a right to be and if that person is not engaged in unlawful activity then he or she has “no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” This section of the law allows persons, if they have the right to act in self defense of themselves or others to use force even if there might be the opportunity to flee to a place of safety.
The Castle Doctrine has existed for centuries and so has the concept of “no retreat” in your own home. Today in many jurisdictions the law presumes the homeowner’s fear of great bodily injury or death to be reasonable without anything further, such as evidence that the intruder was armed or refused to leave when confronted. Many jurisdictions do not require the homeowner to retreat to a place of safety before using deadly force. The question then becomes what happens when you’re away from home in a public place?
The 1921 US Supreme Court case of Brown v. United States, 256 U.S. 335 reversed the conviction of Mr. Brown who claimed he had killed another in self defense. The trial judge had refused to give an instruction that there was no need for Mr. Brown to retreat if he held a reasonable belief his life was in danger and, instead, instructed the jury that “the party assaulted is always under the obligation to retreat, so long as retreat is open to him, provided he can do so without subjecting himself to the danger of death or great bodily harm".
The Supreme Court said the trial judge was wrong and that Mr. Brown was not obligated to retreat. Justice Oliver Wendell Holmes, the author of the opinion wrote “Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him”. This case continues to be the governing law in federal jurisdictions.
For comparative purposes here is a discussion of California law regarding the issue of whether to stand your ground and not retreating in the face of danger. California Penal Code section 197 states that a killing in defense of your person or of others is justifiable. The section says nothing about the need to retreat. However, as the law has developed in California there is not only no duty to retreat but once self defense is justified the one attacked is allowed to go on the offensive in order to secure their safety.
California Jury Instruction 5.50 gives the assailed person the right to act in self defense without the necessity of retreating first. It states that a person may defend themselves “by the use of all force and means which would appear to be necessary to a reasonable person . . . even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene”.
This instruction also states that a person may pursue his attacker in order to secure themselves from danger if that course of action also appears reasonable. California Jury Instruction 5.51 provides that the danger need not be real and that if the person’s belief was reasonable, “the person's right of self-defense is the same whether the danger is real or merely apparent”. These jury instructions are the result of law that has developed over many years by the California Appellate Courts and the California Supreme Court.
This concept of “stand your ground” or perhaps better referred to as “no duty to retreat” is neither a new or even radical idea. It has existed in American jurisprudence for a long time. Yes, some states, like Florida have recently enacted laws that make it applicable to their jurisdiction. Does this mean that it’s a bad law or that the persons who passed it are bad legislators? Does this mean that people who avail themselves of self defense before they attempt to run away are evil or bad persons? That’s a moral question that can be explored but is neither the purpose nor focus of this article.
Ultimately I disagree with Mr. Deer’s speculation that George Zimmerman’s actions were based on knowledge of Florida law. First we would need to know if Mr. Deer was referring to the immunity statute, 776.032 or to that section of 776.012 that says there is no duty to retreat even outside one’s home.
If the former, then we would have to speculate that Mr. Zimmerman had in mind to assault and kill Trayvon Martin before there was any physical altercation and also created a story that would justify the use of deadly force. Such a killing, if proved would probably be premeditated first degree murder under Florida law. Even the prosecution did not conclude that was the case because they charged him with second degree murder.
If Mr. Deer was referring to the latter statute, we would have to conclude that Mr. Zimmerman decided in advance if confronted or attacked he would not seek to avoid the situation but would instead “stand his ground” and defend himself. Again there was no evidence to suggest such was the case.
While the events surrounding the confrontation between George Zimmerman and Trayvon Martin led to a tragic, senseless and unnecessary death, it’s wrong to speculate that Florida’s recently enacted law was its cause.
(Len Shaffer was a prosecutor with the Los Angeles District Attorney for 35 years. He is currently Vice President of the Board of Neighborhood Commissioners.)
-cw
CityWatch
Vol 11 Issue 59
Pub: July 23, 2013
