Standing Your Ground

Here is a link to a previous post by one of our guest law student contributors about the nuts and bolts of the stand your ground laws. Check it out and see what you think in the wake of the Zimmerman verdict.

Charging or Blocking

The Zimmerman/Martin case points out why I dislike speaking to jurors after a verdict, which I will discuss more of next week.

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Stand Your Ground Law: Charging or Blocking?

A very well researched and interesting guest post today from Colin W. Maguire on the Trayvon Martin murder case.  Colin is a law student and the Interim Publicity Editor for the Thomas M. Cooley Law Review.  Well-wishes, questions, comments, and job offers can be sent to him at maguirec@cooley.edu.

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.    Fla. Stat. § 776.013(3) (2005).

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Approximately 92 words make up Florida’s “Stand Your Ground” Act, but those words measure the difference between defense and offense, between justification and retribution. It has captured our collective attention since the death of Florida Teenager Trayvon Martin, and questions linger as to how those events transpired.  It is clear that a physical altercation between Trayvon Martin and his killer, George Zimmerman, occurred on the evening of February 26, 2012; he admitted this to police. Zimmerman claims that Martin attacked him from behind after Zimmerman followed Martin as part of his volunteer neighborhood watch activities.  While Zimmerman observed Martin, Zimmerman contacted 911 and was close enough to Martin to give a description of the young man.  Zimmerman then stated that the physical altercation was immediately preceded by a verbal exchange where both parties were in close proximity to one another.  If the State of Florida cannot disprove Zimmerman’s self-defense claim under Florida Statute Section 776.012, then Zimmerman will be immune from criminal prosecution or civil action under Florida Statute Section 776.032.

            The law, and similar laws in other states, has been the subject of hot debate for the better part of a decade. “Stand Your Ground” laws, and related legal analysis, have been compiled in a timely and informative manner by Ms. Cheryl Cheatham and Mr. Andrew Plumb-Larrick of the Case Western Reserve School of Law’s Green Law Library and provided for public consumption on their blog.  Law enforcement officials struggle to apply the law, often faced with conflicting stories about a shooting, and almost immediately give the case to State Attorneys to assess the nuanced application of “Stand Your Ground” laws.  Even as early as 2008, a prophetic, then-law student named Zachary L. Weaver compiled a list of Florida homicide cases which presented incredibly difficult legal questions regarding “Stand Your Ground” law.

It is likely that Zimmerman will invoke a self-defense claim at his trial under Florida’s “Stand Your Ground” law. If he is found guilty anyway, then the recent establishment of a legal defense fund for Zimmerman indicates the parameters of “Stand Your Ground” law will be brought up on appeal. Zimmerman’s assertion that he pursued Martin from a distance and had close-contact with Martin before Martin allegedly struck Zimmerman could encompass a critical part of any appeal.

As the Florida Supreme Court stated, “[t]he role of the judiciary is to give effect to legislative intent.”  Did the legislature intend for somebody to literally stand their ground and defend themselves or is the threatened individual only under “no duty to retreat”?  The difference is quite critical because to stand means “to support oneself on the feet in an erect position [or] to take up or maintain a specified position of posture…”.  Conversely, retreat is defined as “to draw or lead back”.  If the inclusion of one is the exclusion of all others, then a duty solely not to retreat puts no affirmative duty on a threatened individual to not move forward; could this be what Florida's legislature meant in drafting the “Stand Your Ground” law?  On the other hand, the legislature may intend for two simultaneous duties: first, the person defending themselves does not have to retreat; and second, the person defending themselves cannot advance toward their attacker because they may only stand their ground.

The latter interpretation probably makes more sense to the everyday person because it is a principle we know well in popular culture: the block versus the charge in basketball.  Read this succinct explanation of the rules by the NBA and note the legal parallels to “Stand Your Ground” law:

A block/charge foul occurs when a defender tries to get in front of his man to stop him from going in that direction. If he does not get into a legal defensive position and contact occurs, it is a blocking foul. If he gets to a legal position and the offensive player runs into him it is an offensive foul. In both situations, if the contact is minimal, no foul may be called. To get into a legal position defending against the dribbler, the defender just needs to get in front of him. On a drive to the basket, the defender must get to his position before the shooter starts his upward shooting motion. For most other cases, the defender must get into position and allow enough distance for the offensive player to stop and/or change direction.

This comparison is not meant to be callous (just a long-time NBA fan’s attempt to make sense of a contentious and complex legal issue); rather, it denotes a clear and relatable example of how “Stand Your Ground” law could be objectively viewed as two simultaneous duties by one claiming self-defense – the duty to not advance mixed with the duty to not retreat.  (Block vs. Charge and § 776.012) The NBA’s rule allows a defender to get into a “legal position” and allow the offending party to run into the defender; by implication, the defender cannot run into the offender.  If the defender moves into the offender or the defender does not allow an offender to “stop and/or change direction”, then the defender is no longer being defensive, but is now also an offender.  This results in the penalty not being called on the offensive player for a charge; rather, the penalty is called on the defensive player as a block.  Therefore, though the defender has no duty to retreat per se, the rule penalizes the defender if both parties are not standing.

            As the facts continue to emerge, Zimmerman’s claims of his movement during the episode which lead to the death of Martin should be an integral part of whether a “Stand Your Ground” defense applies.  If the verbal altercation preceding the shooting of Martin included movement by both parties toward one another, then one logical interpretation of a rule involving no duty to retreat might be that the party claiming to defend themselves lost the rights’ of a defender.

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Trayvon Martin and Justification

An explanation of justification appears in order in light of the Trayvon Martin case.  Justification is the legal term for self-defense.  There are two kinds of justification claims.  The first is using physical force and the second is using deadly physical force.  What follows is a discussion of New York law on the issue.  I discuss some of Florida's differences towards the end.

Physical Force

This is the easy one.  A person may use the same force used against them.  A push for a push.  A punch for a punch.  If you exceed the level of force the attacker used, then you are not justified.  Therefore, you can't use a gun in a knife fight.  Or a knife in a fist fight.  If you do, then you cannot make a justification claim.

Deadly Physical Force


This is where it gets complicated.  A person may use deadly physical force to defend themselves against deadly physical force.  The law requires a multi-level analysis when a person claims they are justified in killing someone.  It depends on a few factors:  1) who was the initial aggressor, 2) killer's actual beliefs, 3) what a reasonable person would believe, and 4) if the person was not in their home, could they have retreated in complete safety.

Initial Aggressor


Killing someone is not legally justified if the killer provokes the fight.  A person cannot bait someone into a fight and then kill them and claim they were defending themselves.  This is true even if the fight starts off as a fist fight.

Actual Beliefs - Subjective Analysis


This analysis takes into account what the killer actually believed.  The person must have actually believed that the deceased was about to use deadly physical force before they killed him.  It is not probably or maybe.  There must be an actual belief.

What Would a Reasonable Person Believe - Objective Analysis


The defendant's beliefs alone are not enough.  Jurors must also decide what a reasonable person would have believed in the defendant's position.  If a reasonable person knew what the defendant knew and was in the same circumstances, would they have believed deadly physical force was about to be used on them.

This is a safeguard against people claiming justified killings in every case.  New York courts have added the reasonableness requirement as an objective analysis to be used in analyzing a case.

The fact that the killer was mistaken does not matter if he honestly believed he was about to be killed and a reasonable person in his position would believe the same thing.

Duty to Retreat


A person is not required to retreat in their home.  But, if you are out on the street and someone pulls a knife on you, you would not be justified in killing that person if you could have escaped safely.  A person has a duty to retreat if they are able, as long as you are not in your own home.  New York does not have a law that allows you to stand your ground wherever you are.

To have a valid claim of justification in New York, the person must not be the initial aggressor, must have had an actual belief that the person they killed was about to use deadly physical force upon them, a reasonable person would have believed the same thing, and they must have tried to retreat.

Florida recently passed a "stand your ground" law.  Basically, it removes the duty to retreat in public.  It allows a person to kill someone if they are lawfully in a public place and feel their life is in jeopardy, without trying to escape the situation first.  From media accounts, it appears that the issue of an honest, mistaken belief and the "stand your ground" law are the biggest snags in this killing of Trayvon Martin.  I've only read the same news as everyone else.  I'm very interested to read all the witness statements if they become available.

A long post, but this video will summarize everything:

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