JURISPRUDENCE - The George Zimmerman trial has fostered public debate regarding the advisability of stand your ground laws. In evaluating these laws, it is useful to understand the context in which they arise, what they really mean and the difference between stand your ground jurisdictions and California’s use of deadly force laws.
Traditionally, in order to assert self-defense as a defense to homicide, one had to demonstrate that deadly force was necessary to protect oneself or to protect another. In other words, if safe retreat was available, the person under threat had a duty to do so rather than kill the aggressor. This is known as the duty to retreat. One may not simply kill an aggressor if there are other safe and reasonable alternatives.
The duty to retreat has always had a number of significant exceptions.
One important exception found in many jurisdictions, including California, is based upon an ancient legal principle known as the “Castle Doctrine”. This doctrine, which is at least as old as ancient Rome, provides that a person may use whatever force is necessary to prevent another from unlawfully entering that person’s home. “A man’s home is his castle.”
In California, deadly force may only be used against an intruder if the person using the force reasonably believes the intruder may cause serious bodily harm or death. However, where the intruder enters the residence by force, the law presumes such a reasonable belief. In such a case, homicide is justifiable. In other words, under this doctrine, a person does not have a duty to retreat from his or her own home, but may defend against a forcible entry by killing the intruder. That is the law in California.
Stand your ground laws, such as the statute recently publicized in Florida, take this concept an enormous step further by applying it to any place any person may lawfully be. In other words, in Florida and other stand your ground jurisdictions, there is no duty to retreat from any place where the putative victim has a lawful right to be. In Florida, if you are attacked anywhere and reasonably believe you are in danger of serious bodily harm, you have no duty to retreat even if you can safely and easily do so. Instead, you are free to kill your aggressor. That is the law in Florida.
This broad - almost complete - repudiation of the duty to retreat has been criticized heavily for two reasons. First, it justifies the use of deadly force in circumstances where it is completely unnecessary. Second, and of concern even to some who have no sympathy (at least in the abstract) towards violent aggressors, stand your ground provides that deadly force is the first alternative rather than the last.
By altering the communities’ agenda of alternatives, it encourages the use of deadly force by untrained private individuals and invites exactly the kind of error that occurred in the Trayvon Martin/George Zimmerman case. Evidence at Zimmerman’s trial suggested that George Zimmerman had been trained in stand your ground law. He believed that, if he was somewhere he had a lawful right to be, deadly force was available to him as a first alternative, even if he could retreat.
That tragic day, he was expressly instructed by law enforcement to retreat in order to allow officers trained in the proper use of deadly force to investigate. Yet, he chose not to, advancing instead. His decision resulted in the death of a man who had as much right to be in the community as did Zimmerman.
While Zimmerman’s lawyers initially sought to defend him based upon stand your ground principals, ultimately, the Zimmerman case was not tried primarily on this defense as the evidence did not seem to support it. Instead, Zimmerman’s attorney was forced to rely upon traditional notions of self-defense, claiming that Martin had Zimmerman pinned down, leaving Zimmerman with no ability to retreat.
Even if that version of events were believed by the jury, one has to wonder whether George Zimmerman ever would have approached Trayvon Martin in the first place if he had not been trained in stand your ground principles. But for Florida’s stand your ground law, would Trayvon Martin be alive today?
(Jonathan Deer is a Beverly Hills civil litigation attorney practicing with Turner Aubert & Friedman LLP in Beverly Hills. He is the host of an entertaining weekly Internet show for lawyers found at LawyerFlash.NET.)
Vol 11 Issue 57
Pub: July 16, 2013