February 01, 2015

Stand Your Ground

Rebecca A. Taylor

From Civil Rights Litigation: Representing Plaintiffs Today

For centuries, the rights of individuals to be safe and secure in their homes and to fight back against intruders who threaten to harm them or their families without retreating first has been well established. But in recent years, lawmakers have relieved individuals of their duty to retreat in an entire spectrum of new scenarios. Now, for example, the law often permits individuals to fight back using deadly force even against anyone from whom they perceive as a threat, whether or not that threat was actual. These statutes, commonly referred to as “Stand Your Ground” (SYG) laws, have been enacted in a number of states, including Florida, bolstered by the aggressive political advocacy of the NRA.

But there are (literal) fatal flaws inherent in each of these SYG enactments, chief among them the arbitrary and reckless nature with which deadly force can be employed against individuals, all depending on another person’s apprehension of bodily harm, which can be fickle and misplaced. These difficulties came tragically to light on a national level when 17-yearold Trayvon Martin was shot and killed by George Zimmerman in Sanford, Florida, on the evening of February 19, 2012.174

On that night, Trayvon, who was black, was walking back to the home of his father’s girlfriend where he was visiting with his father. He had stepped out to walk to the nearby 7-Eleven to buy some Skittles and iced tea. As he was walking through the dusk through the gated community back to where he was staying, he aroused the suspicions of George Zimmerman, the lead neighborhood watchman. Zimmerman complained to the police dispatcher that Martin looked like he was up to no good.175 Zimmerman further wanted to know how long it would take for an officer to arrive because “these assholes, they always get away.”176

Trayvon was talking on the phone to his girlfriend at the time, and by now had become aware that he was being watched and followed. His girlfriend told him to run, but Trayvon replied “I’m going to walk fast.”177 Meanwhile, the dispatcher asked Zimmerman if he was following Trayvon, who responded with a “Yeah.” “O.K., we don’t need you to do that,” the dispatcher directed, to which Zimmerman responded “O.K.” Zimmerman then said that he would meet the responding officer at mailboxes by the development’s clubhouse.178

Accounts of what happened next diverged. Neighbors heard the sounds of fighting, and some saw the two wrestling on the ground. However, no one else was there to witness how the physical altercation started. On some of the 911 calls made by neighbors to the police, a long desperate scream for help could be heard in the background. Parents for both Martin and Zimmerman claimed that the voice belonged to their respective son. Then a single shot was heard, then silence.

When the police finally arrived, Trayvon Martin was dead, and Zimmerman was claiming that he had shot Martin in self-defense. The police therefore told Trayvon’s father that they could not arrest Zimmerman, in light of Florida’s SYG law. However, Martin had no weapons in his pockets—only the snacks he had bought at the 7-Eleven.

The case aroused national furor following the Sanford police department’s decision not to file charges against Zimmerman. This public rage prompted a special prosecutor to be assigned to the case, who announced almost two months after the shooting that Zimmerman would be charged with second-degree murder.179

On Saturday, July 14, 2013, the jury in the Trayvon Martin case acquitted George Zimmerman of all charges. The jurors’ options were second-degree murder, manslaughter, or not guilty. From the outset in this case, the prosecution faced a formidable burden—not only to prove Zimmerman guilty of a crime beyond a reasonable doubt, but to show beyond a reasonable doubt that he did not act in self-defense and commit a justifiable homicide as permitted by Florida’s SYG law. Florida’s law is echoed in the laws of other states, as well:

(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 defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the 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, or if that person had removed or was attempting to remove another against that person’s will from the 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.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(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.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.180

Of course, sections 1 and 2 of § 776.013 did not apply to the Zimmerman case, as the encounter between Zimmerman and Martin took place in the public areas of The Retreat at Twin Lakes housing community in Sanford, Florida. These first two sections of the statute relate to the well-settled rights of individuals to defend themselves while in their own home or other enclosure. It is the third section of the statute which is more problematic, particularly ever since the verdict was issued in the Zimmerman case.

Florida law also permits a defendant to an evidentiary hearing before trial where he or she can argue that the preponderance of the evidence (or the greater weight of the evidence) shows that the defendant is not guilty by reason of the Stand Your Ground law, and that he or she was justifiably acting in self-defense.181 Zimmerman elected not to request a SYG hearing which likely inured to his benefit in the end. After all, at such a hearing the defendant bears the burden of proof to show he is entitled to the SYG defense, whereas at trial the state bears the burden of proof to prove their case beyond a reasonable doubt. Additionally, at such a hearing Zimmerman and his attorneys would have been forced to tip their hand and reveal many of their strategies, which the state could have used against them at trial if Zimmerman had lost at the SYG hearing.                                                           

The portion of the Florida SYG law which was most pertinent to the Zimmerman prosecution was § 776.013(3), which permits individuals to use deadly force anywhere if they “reasonably” fear that they are threatened with death or great bodily harm, and they have no duty to retreat first. Zimmerman invoked the protections of this law from the beginning as justification for his shooting and killing Trayvon Martin, even though he claimed in an interview with Sean Hannity of Fox News that he had never heard of Stand Your Ground before he shot Martin.182 But as the testimony at trial revealed, Zimmerman was in fact abundantly familiar with the law, as in the spring of 2010 he was a star student in a criminal litigation college class which covered SYG extensively.183 The instructor for that class, Capt. Alexis Francisco Carter, testified that Zimmerman earned an A in the course and that he was “one of the better students in the class.”184 Upon cross-examination by defense attorney Donald West, Capt. Carter testified that under SYG, deadly force is justifiable if a person has an apprehension of “imminent fear,” and continued that “[t]he fact alone that there isn’t an injury doesn’t necessarily mean that the person did not have a reasonable apprehension of fear. The fact that there were injuries have a tendency to show or support that the person had a reasonable apprehension of fear.” Capt. Carter therefore, as with so many other witnesses presented by the prosecution, had the effect of bolstering the defense’s case rather than the state’s—one of the many fatal flaws in the prosecution of Zimmerman. Even though Zimmerman did not specifically invoke SYG as a defense either before or during trial, he still received the benefit of the law anyway. The Zimmerman jury was instructed on Florida’s law of self-defense in the instructions it received from the court:

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.

In deciding whether George Zimmerman was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, George Zimmerman must have actually believed that the danger was real.

If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony. In considering the issue of self-defense, you may take into account the relative physical abilities and capabilities of George Zimmerman and Trayvon Martin.

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty.

However, if from the evidence you are convinced beyond a reasonable doubt that George Zimmerman was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.185

Zimmerman was entitled to these instructions as SYG was, and as of this writing still is, part of Florida law. In the wake of Trayvon Martin’s death, a vigorous debate has arisen over whether SYG laws just encourage vigilantism and whether they give people a blank check to use deadly force whenever they feel “threatened.”

The New York Times focused in on this debate shortly after the shooting, opening the floor to seven criminal and legal experts who weighed in on whether SYG laws go too far, or whether they are a necessary tool in protecting individual self-defense rights.186 The article was published on March 21, 2012, less than a month after the shooting and when Zimmerman had still not been arrested.

Law professor Adam Winkler suggested that in the 2005 rush for the Florida Legislature to enact SYG, under the pressure of the NRA, lawmakers failed to adequately consider that the final statute did not adequately reflect the legislative intent. Florida State Representative Dennis Baxley urged that there was nothing in the Florida SYG law that permitted anyone to “pursue and confront people,” and that the law intended only “to prevent you from being attacked by other people.” Florida Senator Durrell Peadon, who advocated for SYG, added that George Zimmerman had “no protection under my law.”

However, as Mr. Winkler noted, this clear intent was absent from the actual SYG text. As previously noted, SYG lets anyone deploy deadly force against another if they have even so much as a “reasonable belief” that they are in danger of serious harm or death. As the Zimmerman case demonstrated, that reasonable belief will most likely hold water, especially if there was no one else around to see or hear the crucial details of the confrontation. It is a chilling precedent, especially in light of the fact that the Martin case, in the years to come, could inspire copycats to use deadly force when they are under no real threat, but just out looking to pick a fight.

Law professor Kenneth Nunn added that the determination of whether the use of deadly force is reasonable often unfairly hinges on racial issues. The “reasonable belief” standard unfairly depends on whether a reasonable person in the SYG claimant’s shoes would have acted as the claimant did, and when a black man (or child, in Trayvon Martin’s case) is the object of the fear or suspicion, people rush to judgment to declare that deadly force against those black males is reasonable. This is largely owing to popular culture’s depiction of black men as “violence prone and dangerous.”

Ever since Trayvon was killed and the case gained national attention, it also brought an overwhelming wave of racism out of the woodwork. Many racists actually took the case as validation for their hateful views, and for their contempt of other blacks such as President Obama, with whom the racists were appalled after his audacity to publicly comment on the case and say “If I had a son, he’d look like Trayvon.”187 It was as if for some Zimmerman supporters, racism, right-wing zealotry and support for SYG went hand-in-hand, as they proudly paraded their bigotry in public, and in comments to online articles (particularly on Yahoo.com).

Some people complained that the media was unnecessarily sensationalizing the case, but in reality the public racial tensions erupted in the aftermath of Trayvon’s death because there were, in reality, racial tensions in the confrontation that began it all. Admittedly, the racial tensions went both ways—at the Zimmerman trial Trayvon’s friend Rachel Jeantel revealed that one of Trayvon’s last communications was that a “creepy ass cracker” was following him.188 But would Zimmerman have singled out a young man who was walking home if that boy had been Hispanic like himself, or Caucasian, Asian, Indian or some other race?

Endnotes

174. Dan Barry, Serge F. Kovaleski, Campbell Robertson & Lizette Alvarez, Race, Tragedy and Outrage Collide After a Shot in Florida, N.Y. Times, Apr. 1, 2012, available at http://www.nytimes.com/2012/04/02/us/trayvon-martin-shooting-prompts-a-review-of-ideals.html?r=0.

175. Id.

176. Id.

177. Id.

178. Id.

179. Serge F. Kovaleski & Jennifer Preston, ‘I Am Sorry,’ Zimmerman Says as Bail Set at $150,000, N.Y. Times, Apr. 20, 2012, available at http://www.nytimes.com/2012/04/21/us/george-zimmerman-bail-hearing.html.

180. Fla. Stat. § 776.013, Home protection; use of deadly force; presumption of fear of death or great bodily harm.

181. Sammis Law Firm, P.A., Florida's “Stand Your Ground” Law, available at http://www.criminaldefenseattorneytampa.com/PracticeAreas/DomesticViolenceBattery/StandYourGroundLaw.aspx.

182. Cara Buckley, Zimmerman Studied ‘Stand Your Ground’ in Class, Florida Court Is Told, N.Y. Times, July 3, 2013.

183. Id.

184. Dimitrios Halikias, Law Professor: Injuries Are Not Necessary to Justify Use of Deadly Force, Nat’l Rev. Online, July 3, 2013, available at http://www.nationalreview.com/corner/352660/law-professor-injuries-are-not-necessary-justify-use-deadly-force-dimitrios-halikias.

185. READ: George Zimmerman Jury Instructions, ABC 7, News Channel 8, July 12, 2013, available at http://www.wjla.com/articles/2013/07/read-george-zimmerman-jury-instructions-91298.html, citing to http://www.scribd.com/doc/153397679/Zimmerman-Final-Jury-Instructions.

186. Room for Debate, Killing, With the Law On Your Side, N.Y. Times, Mar. 21, 2012.

187. Stephanie Condon, Obama: “If I had a son, he’d look like Trayvon,” CBS News, Mar. 23, 2012, available at http://www.cbsnews.com/8301-503544162-57403200-503544/obama-if-i-had-a-son-hed-look-like-trayvon/.

188. Marc Caputo, Zimmerman trial witness to CNN: "nigga," "cracka" not racist terms, Miami Herald, July 16, 2013, available at http://www.miamiherald.com/2013/07/16/3502851/rachel-jeantel-on-cnn-talks-about.html.

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Rebecca A. Taylor

Follow the author’s adventures in writing, the practice of law, and life at WritingandLaw on Twitter and Fascination Writing on Facebook. She is also the author of Foreclosure Defense: A Practical Litigation Guide (ABA, 2011).