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Sunday, July 14, 2013

Some more thoughts on self-defense, Stand Your Ground, and Zimmerman

The point of this post is to extend some reflections of ambivalence on some difficult questions regarding self-defense. First, Stand Your Ground (SYG) laws are found in over 20 states including Florida. So, although Florida's getting a lot of heat in my FB thread, I'm not sure it's right to castigate FL as uniquely bizarre in its embrace of SYG. More importantly, it's worth noting that, although the SYG instruction was given here, it wasn't a critical part of the overall case. GZ wasn't claiming a right to deadly force at a moment when he had avenues of retreat. GZ's claim of self-defense was invoked when he (putatively) was on the bottom and shot upward at TM. Might it have framed the defense nonetheless? Perhaps. But given that the forensics were completely consistent with GZ's claim that he shot while he was on the bottom, I'm not sure we should think SYG (in place of a duty to retreat instruction) polluted the jury's decision-making here.

One way in which the FL law did play a role is by shifting the relevant burden regarding self-defense to the gov't. Specifically, the gov't bore the burden of showing beyond a reasonable doubt that GZ did not act in self-defense. In Ohio some states, and historically, self-defense is an affirmative defense, meaning that the defendant shoulders that burden.* Professor Joshua Dressler notes that FL has the burden of disproving SD BRD in the WSJ, but apparently he lumps this burden-shifting point with SYG, which seems mistaken.  In other words, a legislature could make the defendant bear the burden of self-defense while still allowing SYG or requiring a duty to retreat and a state could still have the burden of disproving self-defense claims while allowing SYG or requiring a duty to retreat. (In fact, since 49 of the 50 states, including Florida, make the government bear the burden of disproving SD if the Def't is able to produce some evidence supporting SD, it's probably misleading to suggest that FL's law here is an outlier regarding who bears the burden. I don't think Dressler directly said that, but it's possible some might infer that from his comments.) 

The verdict unsurprisingly seems to be renewing hostility to SYG. There are some powerful reasons to welcome this hostility.

One of the reasons cops don't like it is that it makes it harder to prosecute drug dealers who kill rivals and claim self defense because they were the last ones standing. Some have stressed that SYG hurts minorities. Here the response is typical: it depends. Inasmuch as SYG is a general boon to defendants, and most crime occurs intra-racially, it's not obviously racially biased against minorities in terms of its impact on defendants. That said, analogous to the McCleskey dynamic in the death penalty, there is cause for concern based on the racial impact on victims in inter-racial crimes, and this is what seems to be raising lots of people's hackles, for good reason. But according to the study that I've seen getting circulated for trumpeting this effect, the inference of bias is unproven for two reasons:

The disparity is clear. But the figures don’t yet prove bias. As Roman points out, the data doesn’t show the circumstances behind the killings, for example whether the people who were shot were involved in home invasions or in a confrontation on the street. Additionally, there are far fewer white-on-black shootings in the FBI data — only 25 total in both the Stand Your Ground and non-Stand Your Ground states. 

One last point about SYG's apparent vices. The SYG notion stands in tension with the common law duty to retreat when safe avenues of avoidance are available because we don't want the streets and floors piled with dead bodies on the ground. As mentioned before, I have a lot of sympathy for the common law rule of requiring retreat when feasible. But a principled commitment to the duty to retreat would require revision to the laws allowing the equivalent of SYG in the home. There's a pretty deep sociological commitment to the castle doctrine that works as an exception to the duty to retreat, and thus allows you to prevent being dispossessed of your home. I'm not sure the castle doctrine is net-net justified if there really are safe avenues of avoidance for everyone in the home, but regardless of whether I'm right about that, I do think it's a tough issue. Accordingly, one must bear in mind that self-defense law has to be drawn in a way that takes into account a cluster of complicated moral commitments: do we want to maximally protect home-owners? do we want to make S-D easier for battered women? do we want to maximize lives saved? do we want to maximize only non-culpable lives saved? Do we want to facilitate people feeling safe wherever they have a lawful right to be? Those who proclaim in righteous thunder against SYG have to be confident of their views in at least a couple troubling situations: domestic violence and racist intimidation.  Here's a hypo from Dressler's casebook that I've altered somewhat to make the salience of SYG a little more obvious, despite my concerns about it.

One day Arthur, the resident racist homophobe, informs Dina that if she brings her "trashy gay black ass" that way again he will kill her. Dina could just as conveniently walk along another street, but believing that ‘‘I have every right to walk where I choose,’’ she decides the next day to arm herself with a licensed gun and walk along the now fraught route with her weapon visible to onlookers, as she is permitted to do. Arthur appears and, because of a bum leg, he hobbles toward her, but menacingly, raising his fists and says, "I'm going to get you now." Dina is an olympic class runner, however, and she knows she could run away without problem. Arthur hobbles toward her and is about to punch her. So Dina shoots him because she fears that if she doesn't run, Arthur's strength will overpower her completely.  

Notice that here Dina has several avenues of avoidance: she could have walked along a different road altogether that day, she could have called the cops after receiving the menacing threat, and, ex hypothesis, she could have run away to safety even at the moment prior to Arthur's instigating the violence. Duty to retreat laws would require Dina to avoid this conflict and SYG laws allow her to shoot. I'm inclined to believe that she should have retreated, but I'm also not sure I want to argue that when my fellow citizens vote these laws in place that they are committing some form of moral reasoning malpractice. Anyway, I want to stress, before I close, that I'm not saying Dina and GZ are similarly situated at all.  We have precious little information about the beginning of violence between TM and GZ. My point is simply that there might be a case for SYG that appeals to some "progressives" at least in some cases. 

I'll close with one link to a very interesting recent article on self-defense by Larry Alexander; it is intellectually rich with examples that will stimulate and challenge most people's intuitions. 

*Eugene Volokh notes here that 49 of the 50 states (all but Ohio) put the burden of disproving S-D beyond a reasonable doubt on the state once the defendant has put forth some evidence.

Posted by Administrators on July 14, 2013 at 03:32 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink


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PD Shaw wrote:
> Also, the defendant is still required to put on a prima facie case of self-defense in order to get a self-defense instruction; I don't think they can simply state it.

I believe in Florida the burden of production is some evidence not a prima facie case. See Murray v. State 937 So.2d 277, 279 (4th Dist. 2006) ("Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true.")

Posted by: brad | Jul 16, 2013 10:59:33 PM

Thank goodness for Michelle and the enduringly patient voice of reason she's provided. If she didn't exist, I'd have to invent her :-)

Posted by: Dan Markel | Jul 16, 2013 10:06:27 PM

Anon, although the juror mentioned "stand your ground," she immediately followed that by reciting the "reasonable belief in great bodily injury or death" standard, which is common to both SYG and ordinary s-d (and to the exception to the provocation exception to the right of s-d). The media latched onto SYG early on and didn't let go, notwithstanding the fact that it played no role whatever during trial (except for being somewhat buried in the jury instructions). Under those circumstances, I wouldn't read too much into a juror who recites the now-talismanic phrase "stand your ground," but who then indicates that the legal standard on which the jury based its verdict was the one that is part of, but hardly unique to, SYG.

Posted by: Michelle Meyer | Jul 16, 2013 6:05:51 PM

Dan, don't Juror 37's comments mean that you are entirely wrong about Stand Your Ground? surely you have read the interviews.

Posted by: anon | Jul 16, 2013 5:30:04 PM

Must we rely on moral intuitions? A Kantian would, I think,* require Dina to retreat. A rights-based theorist would permit Dina to exercise her rights against someone who is arguably waiving his rights by acting as an aggressor. A Utilitarian might argue that life is paramount and require a duty to retreat in that hypo or, conversely, assert that the world is better off without Arthur, so who cares. I’m generalizing, of course, but my point is that even if we reject moral relativism, informed people could disagree on the moral consequences of Dina’s actions. If we’re going to disagree anyway, shouldn’t we focus our disagreements on the policy questions and priorities, and chose a SD doctrine based on which societal goals we want to maximize?

*Caveat: I am neither a professor of law nor of philosophy, but just some guy with an interest in both, so I admit freely that I could readily be wrong in my generalizations of moral theories.

Posted by: lawtalkinguy | Jul 16, 2013 11:47:57 AM

I will address Dan Markel's hypo: morally speaking, if Dina is genuinely afraid that Arthur will overpower her, she should not go to jail for shooting him. That's not to say that I would have acted like she did - I would have retreated. But I fail to see how she acted immorally by refusing to let a violent bully restrict her freedom.

Posted by: Prof | Jul 16, 2013 7:58:03 AM

@ P Klym, the 1987 Supreme Court case Volokh links to states that as far as it knows only South Carolina and Ohio hold to the minority preponderence-of-evidence rule. South Carolina subsequently abandoned it, according to a later Volokh law review, but I get the sense that the Professor just looked to the current status of SC and OH in reliance upon the Supreme Court's statement. Illinois uses beyond-a-reasonable-doubt.

Also, the defendant is still required to put on a prima facie case of self-defense in order to get a self-defense instruction; I don't think they can simply state it.

Posted by: PD Shaw | Jul 15, 2013 4:07:02 PM

I had seen Volokh's claim earlier that 49/50 states require the prosecutor to bear BRD burden after some evidence of self-defense was put on, but Volokh did not have a cite for that. Does anybody on here have one? Would it not just be a fact to be shown to be It seems unlikely that could possibly be the case, otherwise, self-defense claims would be far far more prevalent. Although now that I look into it, seems that the jury instructions in the Arias case did indeed require BRD for no self-defense. In theory this seems like an impossible burden unless there is an eyewitness that testifies the defendant yelled "I have no reasonable fear" as they pulled the trigger.

Posted by: P Klym | Jul 15, 2013 11:31:33 AM

Mark, the SYG instruction was read to the jury, but as most have noted, it wasn't legally relevant because GZ's invocation of s-d occurs once he is putatively under TM and being punched repeatedly. That said, I have seen some folks suggest that it might have framed the issue for the jury. It's hard to say one way or the other.

Brandon, that just reflects the common law's acceptance of the castle exception to the duty to retreat, no?

Ultraviolet, you're not allowed to fight the hypo. Those are the law school rules :-) But if you want to tweak it to show the point more vividly, you're welcome to. Note, however, that the hypo wasn't asking for the outcome under FL law; rather, it was meant to see whether one's moral intuitions about retreat are unwavering.

Posted by: Dan Markel | Jul 14, 2013 9:06:59 PM

I think the part that is overseen in the discussion on the FL SYG law is the requirement that the defender should meet 'force with force', I read this as a response being similar to the force exhibited by the aggressor. Also note the words "reasonable belief" in the statue. It would be unreasonable for Dina to think that Arthur would kill her given his disability and mobility. If attacked as described, she could have responded in force, but not in deadly force (see Florida Statute below). In your example, Dina will probably end up in jail. However, if Arthur would have brandished a gun, or possibly jumped her unexpectedly, straddled her, hit her in her face and slammed her head onto the pavement without giving her an escape, that might reasonably be seen as a risk of imminent death or great bodily harm.

F.S. 776.012 "A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013."

The applicable "stand your ground" portion of F.S. 776.013 is:
"(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be 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."

The fact that GZ was not convicted does not mean he will not pay for his decisions and actions, I'm sure the family of the victim will sue him 'OJ style'... what would have happened if GZ would have carried pepperspray or a Tazer instead?

Posted by: Ultraviolet | Jul 14, 2013 6:24:39 PM

I just read Murray's essay at http://www.civitas.org.uk/pdf/cs44.pdf which is very good for helping what he calls Cops and Progressives understand each other. He polled various public figures with questions like this:

An offender enters a home to burgle it. Upon finding the owner at home,
the offender flees into the street. The owner runs after the offender,
catches him, and pummels him, causing bruises and contusions. Did the
homeowner act rightly? Does the assailant have a just complaint against
the homeowner?
1 The homeowner was right in chasing the burglar out
of the house, but wrong to pummel him, and the
burglar has a just complaint.
2 Technically, the homeowner should have just held
the man for the police, but the homeowner should
not be prosecuted and the burglar should receive
only nominal damages.
3 The homeowner acted rightly and the burglar has no

Posted by: Eric Rasmusen | Jul 14, 2013 6:19:38 PM

The Supreme Court, in Beard v. U.S., 158 U.S. 550 (1895), suggests that the common law of the US did not require retreat, at least while on one's own property.

"The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault and had at the time reasonable grounds to believe and in good faith believed, that the deceased intended to take his life or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury."

Posted by: Brandon | Jul 14, 2013 5:51:38 PM

I'd read that GZ did not use the SYG law and his defense was based on standard Florida self-defense rules. Can you clarify?

Posted by: Mark | Jul 14, 2013 4:13:13 PM

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