The failure of the jury in the Michael Dunn case to convict Dunn of First Degree Murder or any of its lesser included offenses in the killing of Jordan Davis has led to a predictable outpouring of claims that that the case reflects societal racism, if not racism in the judicial system.  Dunn was convicted only of attempted murder and unlawfully firing a missile into an occupied vehicle — none of which relate to his killing of Davis.

As with the acquittal of George Zimmerman in the killing of Trayvon Martin, there was a rush to blame Florida’s Stand Your Ground (SYG) law.

Unfortunately, many of the people writing about SYG are doing so in apparent ignorance of what SYG is and what it is not.  By conflating “SYG” with other completely distinct self-defense legal concepts they only contribute to confusion over these self-defense law issues and complicate good faith debate of them.

More specifically, SYG as a legal concept functions ONLY to relieve a defender of a legal duty to retreat before he can use deadly force in self-defense.  It has nothing whatever to do with such other distinct self-defense law concepts as reasonable fear of harm, presumptions of reasonable fear, which party bears the burden of persuasion, or self-defense immunity.

We do not know why the Dunn jury deadlocked, on what issue or by what vote count.

We do know that precious little trial time was spent on the issue of whether Dunn should have or could have driven away once he heard loud music that bothered him.  Almost no time was spent on whether Dunn could have driven away once he believed that Davis was threatening him with a shotgun.

That is significant, because SYG only addresses a duty to retreat once the defender would otherwise be justified in the use of deadly force.  In other words, assuming Dunn was in such imminent threat of death or seriously bodily harm that use of deadly force was legally justified, did he need to look for a way to retreat?  Florida law, as the law in most states, says No, a person who otherwise is justified in using deadly force does not need to retreat.

Little emphasis was placed on the issue of post-threat retreat during the trial, particularly once the shotgun was brought into play.  While we cannot completely rule out that SYG played some role in the non-verdict until we hear from the jurors, SYG as a law has nothing to do with the issues that are front and center in the press, namely whether Dunn had a reasonable fear of imminent death or great bodily harm justifying use of deadly force.

That has not stopped the punditry from claiming SYG was the central focus of the case and the reason for a non-verdict.  This suggests either that they simply do not understand the facts of the case vis-à-vis the issue of retreat, or that they are conflating various other distinct self-defense law concepts with that of SYG.

Such conflation of SYG with other distinct self-defense law concepts is something that we have, sadly, come to expect as routine from journalists.  It is deeply disappointing when such a lack of intellectual rigor is displayed by those whose profession it is to teach the law.

University of Colorado-Boulder law professor Paul Campos has an article at Salon.com that’s unfortunately all too typical of this conflation phenomenon, Michael Dunn’s sick license to kill: The hot-blooded murder of Jordan Davis and Florida’s perverted justice.

Here is the key portion of Campos’ legal analysis from the Salon.com article, which also constitutes the entirety of Campos’ cross-post at Lawyers, Guns & Money blog,  Fear of a black planet:

“Unlike the George Zimmerman trial, the Dunn case featured a straightforward application of Florida’s stand your ground law. That law works like this: if Dunn had a reasonable fear that he was about to suffer “great bodily harm,” then he had a legal right to shoot Davis to death, rather than, for example, choosing to protect himself by driving away, even if Dunn knew that driving away would have protected him from harm.

If you think that sounds crazy, you haven’t heard the half of it. Because the stand your ground law creates an affirmative defense for criminal defendants, the prosecution had to prove beyond a reasonable doubt that Dunn’s claim that he had a reasonable fear he was about to suffer great bodily harm was false. Such laws, in effect, put the victim rather than the killer on trial, which is exactly what happened in this case.”

As is the case with much of the punditry’s discussion of SYG, it is difficult to find a single sentence in those two paragraphs that bears the slightest resemblance to law or reality.

Let’s take them one at a time, in the order presented:

“Unlike the George Zimmerman trial, the Dunn case featured a straightforward application of Florida’s stand your ground law.”

As already explained, SYG applies only where the defendant had available a safe avenue of retreat and otherwise was justified in using deadly force. Whether Dunn could have left the scene prior to the supposed shotgun being pointed was an issue, but it had nothing to do with SYG, which comes into play only once a threat of imminent death or great bodily harm is present.

Here, Dunn claimed that he was only three feet away from Jordan Davis who allegedly was armed with a shotgun when Dunn decided it was necessary to use deadly force. The jury was then obliged to either disbelieve or believe that this use of deadly force was lawful self-defense

If the jury didn’t believe Dunn’s use of force was self-defense, SYG doesn’t apply.  At all.  SYG only addresses the duty to retreat once the use of deadly force otherwise is justified.  If there is no self-defense, there can be no SYG.

Only if the jury believes that Dunn’s use of force was otherwise justified does SYG arise, and then only if that use of force could have been avoided by Dunn taking advantage of a safe avenue of retreat.

The ability to safely retreat was not an issue in the Dunn trial, which I watched almost in its entirety and blogged about daily.  And for good reason.  Is there anyone who believes it is possible to safely flee from a shotgun-armed attacker standing a yard away? Shotgun pellets travel at ~1,200 feet per second, and in backing up Dunn would first have had to bring  himself closer to that shotgun, which was behind him.  He’d merely have been shot as he passed by Davis. Given these facts there was no safe avenue of retreat in this scenario, which is why it was not a major issue in the case.  (In any case, no duty to retreat would have required Dunn to leave behind his fiancé, Rhonda Rouer, who did not return to his car until after the act of purported self-defense has occurred.)

Even non-SYG states do not require you to retreat if doing so will increase your danger–retreat is only required if a safe avenue of retreat exists.  Absent a safe avenue of retreat, there is no duty to retreat. Absent a duty to retreat there is no role for SYG to relieve you of that duty.  Under the facts of this case, SYG is irrelevant.

This was not a SYG case, whether or not one believes that Dunn acted in lawful self-defense.

Next sentence:

“That law works like this: if Dunn had a reasonable fear that he was about to suffer “great bodily harm,” then he had a legal right to shoot Davis to death, rather than, for example, choosing to protect himself by driving away, even if Dunn knew that driving away would have protected him from harm.”

As already discussed, this case has nothing to do with the legal concept of SYG. Nor does Florida’s self-defense law–neither its SYG nor any other provision–have any application of “reasonableness” that differs materially from any other state’s self-defense law.

If Dunn’s perception of fear was merely subjectively reasonable, but not objectively reasonable, then his conduct was not self-defense as a matter of law, and both SD and SYG are inapplicable. If Dunn’s perception of imminent death WAS both subjectively and objectively reasonable, then his conduct was lawful self-defense REGARDLESS of any SYG consideration. It would be self-defense under those circumstances even in a non-SYG state. SYG is again irrelevant.  This would be the case in any state, not just Florida.

Next sentence:

If you think that sounds crazy, you haven’t heard the half of it.

Whatever, filler, no intellectual value there. Next sentence:

Because the stand your ground law creates an affirmative defense for criminal defendants, the prosecution had to prove beyond a reasonable doubt that Dunn’s claim that he had a reasonable fear he was about to suffer great bodily harm was false.

Stand Your Ground has nothing to do with who bears the burdens of production or persuasion in a self-defense case. SYG deals only with relieving the defendant of a legal duty to retreat, if safely possible, before using force in self-defense.  In any case, Florida’s burden of proof provisions for self-defense are substantively the same as every other state, with the notable exception of Ohio.

There are 34 states in the US that are SYG states, and 16 that impose a duty to retreat. Among those 16 that impose a duty to retreat all but one also require that, once self-defense is properly raised at trial, the prosecution bears the burden to disprove self-defense beyond a reasonable doubt. Only one state in the entire country, Ohio, requires that the defendant bear the burden of proving self-defense by a preponderance of the evidence.

Conflating SYG with other, entirely distinct, legal self-defense concepts as Professor Campos does here with the issue of the burden of persuasion, and as others often do with respect to self-defense immunity, presumptions of reasonableness, etc., reflects a general media misunderstanding of how SYG operates.

Next sentence:

Such laws, in effect, put the victim rather than the killer on trial, which is exactly what happened in this case.

This is simply nonsense. SYG doesn’t put the victim of a shooting on trial, it addresses only cases where the shooter has demonstrated justifiable use of deadly force and whether there was a legal duty to retreat.  There can be no SYG issue in the absence of otherwise lawful self-defense.  If victims are put on trial as a defense tactic, it has nothing to do with SYG.

And don’t even start with Trayvon Martin.  In the Zimmerman trial, the evidence was overwhelming that Martin was on top of Zimmerman punching Mixed Martial Arts style as Zimmerman was pinned on his back on the ground with his head being bashed into concrete at the time the single shot was fired.  The Zimmerman case, as the Dunn case, turned on whether there was justifiable use of deadly force, not the duty to retreat.

Sadly, Professor Campos is far from the only purportedly legal academic who contributes to such intellectual obfuscation of self-defense law.  Take, for example, this quote from Mary Anne Franks, an associate professor at the University of Miami, in the New York Times:

This trial is indicative of how much of a problem Stand Your Ground laws really do create. [ . . . ] By the time you have an incident like this and ask a jury to look at the facts, it’s difficult to re-create the situation and determine the reasonableness of a defendant’s fear.

As explained, the legal concept of SYG has nothing in particular to do with standards of reasonableness in self-defense cases, at least no more than any of the other elements of a self-defense claim.

Or this quote, from Kenneth Nunn, a law professor at the University of Florida, as reported in the Tampa Bay Times:

Although I don’t think the evidence supports this, it is possible that the jury felt that Dunn was proper to stand his ground as to Davis, but his shooting of the others in the car was excessive.

As we can now all see clearly, the only thing SYG had to do with either the Zimmerman or Dunn trials is that it is used as a convenient political distraction based on a misunderstanding of the law.

–Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.