E.J. Dionne, Jr., in his Washington Post piece entitled “Repeal stand-your-ground laws,” presents us with yet another example of the utter inability of too many journalists to grasp the relatively simple and straightforward legal concept commonly referred to as “Stand-Your-Ground.”
Humorously, the first paragraph of his piece had me utterly convinced that Dionne must certainly be writing about Obamacare, despite the headline:
The law is supposed to solve problems, not create them. Laws should provide as much clarity as possible, not expand the realms of ambiguity and subjectivity. Laws ought to bring about the practical results their promoters claim they’ll achieve.
With a lead-in like that, surely he’s about to call for the repeal of the Affordable Care Act, right? Just kidding–it is, after all, the Washington Post.
Instead, Dionne has decided to call for the repeal of another law about which he patently knows nothing: “Stand-Your-Ground.”
How can we identify his ignorance of the law he argues should be repealed, as well as its application (or, more accurately, its lack of application) in the Zimmerman and Dunn trials. Why, he’s kind enough to show us, in his own words.
First, Dionne writes of the Dunn trial:
Supporters of the law say it was technically not at issue in the case, but this overlooks the obvious role it played in the trial.
And where do we find this “obvious role” for SYG in the Dunn trial? It was mentioned in a single passing sentence–that would be ONE sentence–with no particular emphasis by defense counsel Cory Strolla in his closing argument. One mention over the course of two weeks of jury voir dire opening statements, day after day of trial, and closing arguments. One. Mention.
Dionne also notes that Judge Healey instructed the jury on Stand-Your-Ground, in exactly the same way the Zimmerman jury was instructed, and as he concedes in exactly the same way that any jury in any self-defense case would be instructed. This is so regardless of whether stand-your ground is relevant to the case, because the stand-your-ground language is included as a component of Florida’s standardized jury instructions for the justifiable use of deadly force.
That’s Mr. Dionne’s evidence of the “obvious role” of stand-your-ground in the Dunn trial–a single passing reference by defense counsel, and a single paragraph amongst over 30 pages of jury instructions. Compelling, no?
But let’s set this mischaracterization aside. Why? Because it turns out that Mr. Dionne simply has no understanding even of what stand-your-ground is or what it is intended to achieve.
He writes:
Florida’s [stand-your-ground] statute allows someone to use force if he or she “reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.” The “reasonable belief” standard is not unique to stand-your-ground laws, but it opens a vast loophole for extreme subjectivity when it is applied in conjunction with them.
No, Mr. Dionne, it does not. Under Florida law–and under the law of the other 33 states that are effectively stand-your-ground jurisdictions–the defender’s reasonableness is not measured solely as a subjective matter. The defender’s conduct must be found by the jury to have been BOTH subjectively reasonable AND objectively reasonable.
For subjective reasonableness, the defender must have possessed a genuine belief that their use of deadly force was necessary to prevent an imminent attack capable of causing death or grave bodily harm.
In addition, however, the jury is charged that this belief must ALSO be OBJECTIVELY reasonable. That is, would a reasonable and prudent person, in the same or similar circumstances, possessing the defendant’s knowledge and capabilities, have similarly perceived the threat as one of imminent deadly harm?
If the defender’s conduct fails the objective reasonableness test, the use of force fails to qualify as self-defense as a matter of law.
Thus, the law does not give a “license to kill” to a person who is unreasonably frightened by, say, a young black male. If that fear is not objectively reasonable, it fails the test of self-defense, and no use of force based upon it can be legally justified.
All of which, by the way is irrelevant to Dionne’s point in any case, because, this dual subjective-objective test of reasonableness has utterly NOTHING to do with stand-your-ground. Exactly the same dual test of reasonableness is found in every state’s self-defense law, whether the state is among the 34 that do not impose a legal duty to retreat before using deadly force in self-defense (not the “some two dozen states” Dionne references in passing) or among the 16 that do impose such a legal duty. It was the law before Florida passed its stand-your-ground statute, and it remained the law afterwards.
Stand-your-ground, in fact, has nothing whatever to do with evaluating the reasonableness of a use of force against another. Rather-stand-your ground does one thing, and one thing only: Where there might otherwise have been a legal duty to safely retreat before using deadly force in self-defense, stand-your-ground removes that legal duty. Nothing more than that, nothing less than that.
Stand-your-ground thus plays no role in assessing reasonableness. It has nothing whatever to do with self-defense immunity. It has nothing whatever to do with presumptions of reasonableness in the context of defending one’s home All it does is remove the legal duty to retreat. Period.
Note, also, that while removing the legal duty to retreat stand-your-ground does NOT prohibit the Florida State prosecutors from arguing that a defendant’s failure to retreat should be considered by the jury. Indeed, Florida’s prosecutors are fully entitled to argue to the jury that because the defendant could have safely retreated they ought to deny his claim of self-defense. All stand-your-ground does is prevent them from arguing that because the defendant could have safely retreated they MUST deny his claim of self-defense as a matter of law. The issue of retreat is still fair game for the jury’s consideration.
Finally, Dionne fails to grasp the purpose of stand-your-ground laws, assigning them instead a straw-man purpose which even then he struggles to proof has failed to be achieved. Dionne cites a Tampa Bay Times article that claims Florida’s stand-your-ground law has been “invoked with unexpected frequency,” but that can hardly be deemed the definition of a law’s failure. Dionne cites the same article to note that stand-your-ground has “confused judges”–which would seem an argument for better judges–and “allowed drug dealers to avoid murder charges and . . . manslaughters.”
This latter is a particularly egregious claim. As discussed, the only thing stand-your-ground does is relieve the defender of a legal duty to retreat before using deadly force in self-defense. But stand-your-ground can only EVER apply if the defensive conduct was otherwise perfectly legal self-defense.
Retreat is only one of five elements of self-defense. While stand-your-ground may relieve a defendant of the element of retreat, it certainly does not relieve the defendant of the others.
First, the defendant must be the innocent party in the conflict. If the defendant was the aggressor, he does not qualify for self-defense in any form, and stand-your-ground is irrelevant.
Second, the deadly threat against which the defendant acted must be imminent, about to occur RIGHT NOW. If the defendant used force in anticipation of some future threat, he does not qualify for self-defense in any form, and stand-your-ground is irrelevant.
Third, the degree of force used by the defendant must have been proportional to the degree of force with which he is threatened. If the defendant used deadly force to ward off a non-deadly attack, he does not qualify for self-defense in any form, and stand-your-ground is irrelevant.
Finally, the defendant’s perception of the threat he faced must be both objectively and subjectively reasonable, as already discussed at length.
All of this was the law before Florida adopted stand-your-ground, all of it is still Florida law following the adoption of stand-your-ground, and all of it is the law in every one of the 50 states, stand-your-ground or not.
Thus, if the defendant’s conduct would have failed as self-defense prior to the adoption of stand-your-ground, it will fail as self-defense AFTER the adoption of stand-your-ground. Florida’s stand-your-ground law thus in no way makes lawful what was previously unlawful, except to the extent that the legal duty to retreat has been lifted in exactly the same manner as in 33 other states.
But that considerable blunder aside, Dionne is clearly ignorant of the true purpose of stand-your-ground. It has nothing whatever to do with modifying the behavior of people acting in self-defense.
As already mentioned, stand-your-ground can only be relevant in the case of a defendant whose use of force in self-defense was otherwise perfectly legal:
(1) The defendant was the innocent party, and the person against they used defensive force was the aggressor.
(2) The deadly threat with which the defendant was faced was about to occur imminently.
(3) The amount of defensive force used was no more than necessary to stop the attack.
(4) The defendant’s perception of the threat was both subjectively AND objectively reasonable.
People who meet these criteria–that is, innocent victims of a deadly, imminent assault upon their lives–invariably retreat from the attack if safe retreat is at all possible. Innocent victims of deadly, imminent assaults are not people who seek out and engage in life-and-death battles on the streets of our cities–they’re just people who want to live to make it home. They don’t want to have to deal with the police, to face an indictment, to go to trial, to risk conviction, to perhaps spend the rest of their lives in jail. They certainly don’t WANT to shoot anyone.
Their attacker, however, has left them no reasonable alternative, and they must either act in self-defense and live, or die. Who amongst us would not choose to live, would not want our husbands, our wives, our children, our parents, our brothers and sisters, to make the decision to live? Surely, we would all make that choice.
But that is a choice that the innocent victims of deadly imminent attack–again, the ONLY people who qualify for stand-your-ground–make only when their attacker forces them to. If able to safely retreat, they invariably take advantage of that opportunity. And they do this whether they are aware of stand-your-ground, or not.
So what is the real purpose of stand-your-ground, if not to change the behavior of the innocent victim or deadly imminent attack?
Quite simply, stand-your-ground is a policy decision, a statement by the legislature to the State’s prosecutors. And that message is this:
When an innocent person is faced with an unlawful imminent deadly attack upon their person, and reasonably acts in defense with no more force than necessary to stop the attack, we will not allow you to prosecute that person and send them to jail for perhaps the rest of their lives simply because they failed to see, in the presence of an uplifted knife, the supposedly safe avenue of retreat you are able to show the jury in the secure calm of a court room.
That’s the real purpose of stand-your-ground, and in that context it has been nothing short of a stellar success. Recognition of this success was evidenced as recently as this past November, when after months of public comment and testimony the Florida House Judiciary Committee voted by a margin of 11 to 2 against a bill that had been submitted modify the state’s stand-your-ground law.
I don’t expect that this post will change the minds of folks like Mr. Dionne–in my experience those opposed to stand-your-ground rarely bring reason or an actual understanding of the law to the discussion.
But perhaps it will inform those among the readership who have not yet moved beyond the bounds of reason and are open to an understanding of what stand-your-ground is and is not, and what it does and does not.
–-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.
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