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Understanding ‘Stand Your Ground’—A Commentary by Robert Leider ’12

The following commentary was published in the Wall Street Journal on April 17, 2012.

Understanding ‘Stand Your Ground’
By Robert Leider ’12

The shooting of Trayvon Martin by George Zimmerman has spurred national outrage over Florida's Stand Your Ground law. Unfortunately, the discussion of this law has been marred by misinformation. Jeffrey Toobin, CNN senior legal analyst, erroneously claimed that the law "allows a disproportionate response; if someone comes at you with a fist, you can reply with a gun."

Many have asserted that in Florida anyone who believes he is in danger can use deadly force, no matter how unreasonable his belief. These perceptions of the law are wrong. As compared with other states, Florida's Stand Your Ground law is neither extreme nor an outlier.

In Florida, as in most states, a person claiming self-defense must show that he (1) reasonably believed that such force was (2) necessary to protect himself against (3) the imminent and (4) unlawful use of force by another. The person claiming self-defense usually cannot be the initial aggressor. And to use deadly force in Florida, as Mr. Zimmerman did, a person must also reasonably believe that the aggressor threatened him with death, great bodily injury, or intended to commit a forcible felony (e.g., rape, robbery or kidnapping).

In short, under Florida's Stand Your Ground law, Mr. Zimmerman now must show that an average person in his circumstances would have viewed the Skittle-armed Martin as a mortal threat.

To these basic requirements, a minority of states add a general duty to retreat before using deadly force. Most states in this minority apply the rule only if the defender knows he can retreat with complete safety. In Florida before 2005, a person usually could not use deadly force if he could retreat without increasing his danger.

Although expanding Stand Your Ground laws has suddenly become part of the culture war, the existence of such laws traditionally depended on geography, not politics. Older states generally inherited the duty to retreat from English common law. As the United States expanded westward, the retreat requirement usually did not follow. Instead, Western states followed the "true man" doctrine, named because "true men" do not retreat when faced with danger. California became a Stand Your Ground state more than 150 years before Florida.

With the prevalent use of firearms, the retreat requirement has limited application today. Individuals usually cannot know that they can retreat in complete safety when facing aggressors armed with guns. And the retreat requirement has numerous exceptions in addition to the "castle doctrine," which exempts people in their homes from the duty to retreat.

For example, in states that require retreat, law-enforcement officers making arrests always may "stand their ground" when threatened.

Sometimes, private citizens making arrests have the same privilege. Mr. Zimmerman's right to use deadly force in self-defense under Florida law was approximately equivalent to—and certainly no greater than—a law-enforcement officer's right to use deadly force in a state requiring retreat.

This is not to say that eliminating the retreat requirement has no drawbacks. Eliminating the duty to retreat often makes it difficult to prosecute cases involving shady self-defense claims—such as bar fights and gang conflicts—when both parties should have simply walked away. Prosecutors have an easier time proving that a combatant could have safely withdrawn than they do convincing juries, beyond any reasonable doubt, that the person did not reasonably believe that he was in danger.

Now that prosecutors have charged Mr. Zimmerman, they will face a similar challenge. Mr. Zimmerman had called 911, and the dispatcher instructed Mr. Zimmerman not to pursue Martin. Had Mr. Zimmerman complied, no one would have been hurt. Before Stand Your Ground, prosecutors could have relied on Mr. Zimmerman's opportunity to retreat in order to help rebut his claim of self-defense.

After Stand Your Ground, prosecutors have a more difficult case. Now, they must prove beyond a reasonable doubt that Mr. Zimmerman did not reasonably fear for his life. The police report contains some evidence to back Mr. Zimmerman's self-defense claim. Mr. Zimmerman reportedly sustained a broken nose, cuts to the back of his head, and had grass stains on the back of his shirt. These facts could provide reasonable doubt on the self-defense question if jurors thought that Martin may have had Mr. Zimmerman pinned to the ground and was beating him. This inquiry is much more fact-intensive than relying on Mr. Zimmerman's ability to leave the scene.

Nevertheless, even with Florida's Stand Your Ground law, Mr. Zimmerman will have difficulty asserting a successful self-defense claim. Stand Your Ground laws do not affect most basic requirements of pleading self-defense. Individuals using lethal force in self-defense must reasonably believe that they are in imminent danger of death or serious bodily injury—in other words, an average person, given the facts as Mr. Zimmerman knew them, would have reached the same inferences about the danger Martin posed and the necessity of using deadly force to avoid it. Mr. Zimmerman's mere honest beliefs will not suffice.

Nor does the Stand Your Ground law permit individuals to use disproportionate force in self-defense. Mr. Zimmerman must demonstrate that he reasonably feared that Martin was going to kill him, cause great bodily injury (e.g., permanent disfigurement), or commit a forcible felony. A few cuts and a broken nose may not rise to this level. And Mr. Zimmerman will have to show that he was not the initial aggressor.

There is no need to exaggerate the leniency of Florida law. Regardless of whether he should have walked away, Mr. Zimmerman now must show that an average person in his circumstances would have viewed Martin as a mortal threat.

Mr. Leider, a student at Yale Law School, holds a Ph.D. in philosophy from Georgetown University.