Tuesday, April 17, 2012

Stand Your Ground

Hey, baby, there ain’t no easy way out
Hey, I will stand my ground
And I won’t back down
—Tom Petty and the Heartbreakers, I Won’t Back Down

I suppose it was only a matter of time before Washington Post resident nitwit E.J. Dionne weighed in on the Trayvon Martin shooting, using the case to support a politically expedient call for an end to “Stand Your Ground” laws.  Echoing known Second Amendment scholar New York Mayor Michael Bloomberg, Dionne says these laws promote a culture of vigilantism, tilting the balance of power in a street encounter in favor of the armed.  Apparently they are concerned that hoardes of us are roaming the streets with pistols stuffed in our shorts, looking for [black] people to blow away. 

The essence of Dionne’s position is clear in his recitation of the line so often repeated throughout the liberal media since the Trayvon Martin case broke: “Stand Your Ground” laws authorize the use of deadly force simply whenever a person “feels threatened.”  And it is this misunderstanding—or deliberate misstatement—of what these laws actually say that fuels the argument from the Left.  “Stand Your Ground” laws do NOT authorize vigilantism, and they do not come into play simply because a person feels threatened. 

The Florida statute at issue in the Martin case is virtually identical to our statute in Texas, and is typical of such laws.  Florida Statutes Section 776.012 defines basic self-defense: a person is justified in using deadly force and has no duty to retreat if he reasonably believes that that force is “necessary to prevent imminent death or bodily harm” or the commission of a forcible felony (i.e., rape).   Section 776.013 then expands on the concept of reasonable belief that force is necessary [in pertinent part]:

(1)        A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using [deadly force] if:

(a)        The person against whom defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle . . . and

(b)        The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

*  *  *

(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.

This statute does not turn citizens into cops, and it doesn’t permit you to walk around town gunning down everyone who gives you the evil eye.  It does two things.  The first is to create a legal presumption that you have a reasonable belief that deadly force is necessary to prevent imminent death or bodily harm if the person you shoot has broken into (or is in the process of breaking into) your home.  This is the “Castle Doctrine” that says if the bad guy is in your house, we’re going to assume you acted in legitimate self defense; you’re not required to wait for him to shoot first, take the chance of asking him a bunch of questions to see why he’s there, or turn your back and try to crawl out a window, and we’re not going to second-guess you.  For my life I can't imagine how this is in the least bit controversial.

The second thing this law does is clarify that anyplace outside the home, if you are attacked you are not required to attempt to retreat before you may defend yourself.  Importantly, however, this second aspect does not extend the Castle Doctrine’s legal presumption of reasonable belief in imminent danger.  Outside the home, while you are not required to run before you can use deadly force to defend yourself, you will still bear the burden to prove your self-defense defense. 

This is significant, and it’s a point that rabidly anti-gun people like Dionne miss or deliberately gloss over.  “Feeling threatened” won’t get you there—in fact, even “being threatened” isn’t enough.  To make a self-defense case, you have to prove three things.  First, that your fear was reasonable under the circumstances; hyper-paranoia, or naked racist stereotyping, isn’t going to be enough.  Second, your fear must have been of death or serious injury.  A fear that the other guy was merely going to hit you, or even attack you with a non-lethal weapon such as a taser or pepper spray, is almost certainly not sufficient to support the defense; the guy has to be about to kill you dead.  And third, that peril must be imminent.  That is, the guy has to have the means, ability, and proximity to kill you right now.  Having a knife in his boot 30 yards away from you probably doesn’t put you at imminent risk of death, whereas a knife in his hand 5 feet away probably does.  If he’s not armed, he’d better be physically capable and in the process of beating you to death with his bare hands, or your use of deadly force will be a difficult defense to make.

Further, the “Stand Your Ground” aspect of the Florida statute doesn’t apply if you are in the process of committing a crime.  Nor does it apply if you started it.  So the bad guys can’t use the statute to defend themselves, and the statute doesn’t allow you to go around picking fights.  All this statute does is allow you to defend yourself in your own home, and not require you to run if attacked in the street.

Dionne nevertheless argues, paradoxically, that on the one hand these statutes somehow create confusion for prosecutors and cops, and on the other hand that they weren’t necessary because the common law—i.e., the proclamations of judges—already long recognized the doctrine of self defense.  Of course, if all the statute does is codify existing common law (which is basically true), how could there be any added confusion?  More to the point, why should any of us faced with defending ourselves in a life-or-death situation have to rely for our defense on a doctrine that exists only because a judge somewhere said so, and will continue only so long as future judges adhere to it?  It is common for legislatures to enact statutes that take the common law developed over time in the courts and convert it into a firm statute.  The Uniform Commercial Code, which governs most contracts and financial transactions in all 50 states, is a prime example.  It is worth noting in this regard that in the past courts have in fact required you to make every effort to retreat until retreat is no longer possible before you could defend yourself, which isn’t very helpful if the guy you turned your back on to run from has a gun.  “Stand Your Ground” statutes are intended to make clear that you no longer have to run before you can defend yourself, and to prevent courts from reverting back to that standard. 

There is no doubt that regardless of how it really went down—and we may never know that with complete certainty—Trayvon Martin’s death is a tragedy.  I am not here to defend George Zimmerman, and if he can’t make out his defense, I hope the State of Florida rings him up.  But much as people like E.J. Dionne and Jesse Jackson would like to use this incident as fodder to crucify the NRA or even seek federal anti-defense legislation, Trayvon Martin isn’t dead because of Florida’s Stand Your Ground law, and repealing that statute wouldn’t have changed that outcome.  George Zimmerman would, in all likelihood, have been carrying his weapon that night with or without that statute, and there’s no reason to think he wouldn’t have used it in exactly the manner he did—however that was—without that statute.  And once the altercation began it was no longer a “Stand Your Ground” situation.  If Zimmerman was, as he claims, already on his back having his head beaten against the concrete, he obviously couldn’t retreat no matter what the law said.  Alternatively, if he was the guy on top, as others have suggested, his self-defense defense is no good with or without the statute.  And if Zimmerman in fact pursued Martin and initiated the fight, the Stand Your Ground law won't even apply. 

This simply isn’t a “Stand Your Ground” case; it’s a self-defense case, and the jury is very much out at this point.

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