Media Neglect That "Stand Your Ground" Is Centerpiece Of Florida's Self-Defense Law
Research ››› ››› TIMOTHY JOHNSON
Media reporting on the verdict that George Zimmerman is not guilty in the shooting death of Trayvon Martin suggested a misleading distinction between the defense attorneys' supposed use of "conventional" self-defense principles and Florida's controversial "Stand Your Ground" law (also known as "Shoot First" or "Kill at Will"), ignoring the fact that the sole justifiable homicide law in Florida incorporates "Stand Your Ground."
George Zimmerman Acquitted On Charges Of Unlawfully Killing Trayvon Martin
The Washington Post: "A Florida Jury Acquitted George Zimmerman Of Charges Of Second-Degree Murder And Manslaughter Saturday Night In The Shooting Death Of Trayvon Martin." From a July 13 article:
A Florida jury acquitted George Zimmerman of charges of second-degree murder and manslaughter Saturday night in the shooting death of Trayvon Martin, a case that alternately fascinated and appalled large segments of a spellbound nation. [The Washington Post, 7/13/13]
Stand Your Ground Omnipresent Throughout George Zimmerman Controversy
Zimmerman Juror: Stand Your Ground A Reason Why Neither Second Degree Murder Nor Manslaughter Applied. An anonymous member of the jury appeared on Anderson Cooper 360 on July 15 to discuss how Florida's Stand Your Ground law provided a legal justification for Zimmerman's actions. According to the juror, neither charge against Zimmerman applied "because of the heat of the moment and the Stand Your Ground":
JUROR: We just starting looking at the law, what exactly we could find and how we should vote for this case. And the law became very confusing.
ANDERSON COOPER: Yeah, tell me about that.
JUROR: It became very confusing. We had stuff thrown at us. We had the second-degree murder charge, the manslaughter charge, then we had self-defense, Stand Your Ground, and I think there was one other one.
COOPER: Did you feel like you understood the instructions from the judge, because they were very complex. I mean reading them, they were tough to follow.
JUROR: Right. And that was our problem. It was just so confusing what went with what and what we could apply to what. Because there was a couple of them in there that wanted to find him guilty of something. And after hours and hours and hours of deliberating over the law and reading it over and over and over again, we decided there is just no way -- other place to go.
COOPER: Because of the two options you had, second-degree murder or manslaughter, you felt neither applied.
JUROR: Right. Well because of the heat of the moment and the Stand Your Ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or that he was going to have bodily harm, he had a right. [CNN, Anderson Cooper 360, 7/15/13]
Zimmerman Trial Jury Instructions Included Explanation Of Stand Your Ground Defense. The jury instructions for the Zimmerman trial, meant to be a guide for the relevant charges and defenses under Florida law, included the Stand Your Ground justification for homicide:
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 anyplace 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. [Scribd.com, via Media Matters for America, accessed 7/16/13, emphasis added]
Stand Your Ground Opponent Dan Gelber: Law "Fundamentally Changed The Analysis Used By Juries To Assign Blame In These Cases." On his blog, Gelber, a former Florida state senator, provided the pre-Stand Your Ground jury instructions which would have asked whether Zimmerman "used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force":
In 2005 the Florida Legislature fundamentally changed the analysis used by juries to assign blame in these cases. When the legislature passed the Stand Your Ground law it changed the rules of engagement. It eliminated the duty to avoid the danger and it eliminated any duty to retreat.
If the Trayvon Martin killing was tried prior to the Stand Your Ground law being passed, the jury would have been told that self-defense was not available to Zimmerman unless he had used every reasonable means to avoid the danger. The jury would have been told that even if they believed Zimmerman had been attacked wrongfully by Trayvon, he could not use deadly force if he could have safely retreated or run away.
Here is the actual jury instruction read to Florida juries prior to the legislature's enactment of Stand Your Ground.
"The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force."
In this case, did Zimmerman use "every reasonable means within his power...to avoid the danger" or did he follow Trayvon despite admonitions that he did not need to? [The Gelber Blog, 7/14/13, emphasis original]
Sanford, Florida, City Manager Cited Stand Your Ground As Reason Zimmerman Wasn't Initially Arrested. From the March 19, 2012, statement of City Manager Norton N. Bonaparte, Jr.:
Why was George Zimmerman not arrested the night of the shooting?
When the Sanford Police Department arrived at the scene of the incident, Mr. Zimmerman provided a statement claiming he acted in self defense which at the time was supported by physical evidence and testimony. By Florida Statute, law enforcement was PROHIBITED from making an arrest based on the facts and circumstances they had at the time. Additionally, when any police officer makes an arrest for any reason, the officer MUST swear and affirm that he/she is making the arrest in good faith and with probable cause. If the arrest is done maliciously and in bad faith, the officer and the City may be held liable.
According to Florida Statute 776.032 : 776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting 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 was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant. (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful. [Scribd.com, accessed 7/16/13, emphasis original]
The Self-Defense "Deadly Force" Provision Of Florida Law Incorporates Stand Your Ground
Stand Your Ground Is Part Of Florida Law Dealing With "Use Of Deadly Force." There is only one statute available for civilians who use deadly force for self-protection, and it includes the language of Stand Your Ground. From Chapter 776 of the Florida criminal code ("Justifiable Use of Force"):
(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. [The 2012 Florida Statutes, accessed 7/16/13]
New York Times: Stand Your Ground "Is Part Of The State's Overall Self-Defense Law And Thus Was Included In The Judge's Instructions To The Jury." From a July 14 article explaining how the law "allows people who fear great harm or death to stand their ground and not retreat, even if they can safely do so":
The provision, enacted by the Florida Legislature in 2005 and since adopted by more than 20 other states, allows people who fear great harm or death to stand their ground and not retreat, even if they can safely do so. The language is part of the state's overall self-defense law and thus was included in the judge's instructions to the jury. If an attacker is retreating, people are still permitted to use deadly force. But Mr. O'Mara said he did not rely on that provision in the courtroom because Mr. Zimmerman had no option to retreat. [The New York Times, 7/14/13]
Media Discount The Role Of Stand Your Ground In Zimmerman Acquittal
CNN Hosts Agree Stand Your Ground Played No Role In Zimmerman Verdict. From the July 15 edition of CNN's New Day:
[CNN, New Day, 7/15/13]
Bloomberg Businessweek: "Zimmerman's Lawyers Made A More Conventional Self-Defense Argument." In a July 15 article, Bloomberg Businessweek senior writer Paul M. Barrett wrote, "Stand your ground just wasn't relevant to this defense. In the end, what got Zimmerman off was the most basic of all criminal-law concepts: reasonable doubt":
[T]he Zimmerman case isn't a good example to make the argument against stand your ground. In fact, the defense team waived the opportunity to invoke the statute to preempt the prosecution. Instead, Zimmerman's lawyers made a more conventional self-defense argument. Their contention was that Zimmerman never had an opportunity to retreat because Martin had him pinned to the ground. Stand your ground just wasn't relevant to this defense. In the end, what got Zimmerman off was the most basic of all criminal-law concepts: reasonable doubt. [Bloomberg Businessweek, 7/15/13]
Politico: Zimmerman's Defense "Presented A Conventional Self-Defense Strategy." From a July 14 article that discussed a call by New York City Mayor Michael Bloomberg to repeal Stand Your Ground laws nationwide:
The phrase "shoot first" is used by critics of Florida's "Stand Your Ground" laws, which allows people to use deadly force if they have reason to believe they're facing bodily injury.
In the Zimmerman case, neither the defense nor the prosecution ultimately used "Stand Your Ground." Zimmerman's attorneys last year said that would not be their theory of the case, and they presented a conventional self-defense strategy. [Politico, 7/14/13]
National Review Online: "Zimmerman Case Had Nothing To Do With Florida's Version Of [Stand Your Ground] -- His Lawyers Made A Strict Self-Defense Argument." From a July 14 editorial:
A focus of ire is the "stand your ground" law, even though the Zimmerman case had nothing to do with Florida's version of that law -- his lawyers made a strict self-defense argument, and a compelling one. [National Review Online, 7/14/13]
National Rifle Association News Host Cam Edwards: Politicians And Pundits "Attack Stand Your Ground, Even Though That Wasn't Even A Component In George Zimmerman's Defense." From the July 15 edition of Cam & Company on The Sportsman Channel:
EDWARDS: With the verdict in the Zimmerman trial over the weekend [we] have seen a number of people including Mayor Bloomberg, President Obama himself try to use the verdict as a call for more gun control. And have seen other politicians and other pundits attack Stand Your Ground, even though that wasn't even a component in George Zimmerman's defense. [The Sportsman Channel, Cam & Company, 7/15/13]
Powerline Blog: "There Is No Reason Why Anyone Should Ever Mention Florida's Stand Your Ground Law In Connection With The Zimmerman Case." From a July 14 post on the conservative Powerline blog:
This [Stand Your Ground] principle, obviously, comes into play only if you can run away. If you can't retreat-if, like George Zimmerman, you are lying on your back with an adversary sitting on top of you and beating on you-you have always been entitled to use deadly force in self-defense, if you reasonably fear death or great bodily injury. Zimmerman's lawyers did not invoke Florida's stand your ground law. They did not rely on it; they did not argue it to the jury; they did not ask for a "stand your ground" pretrial hearing, which, in cases where the statute applies, can lead to dismissal of the charges against the defendant. There is no reason why anyone should ever mention Florida's stand your ground law in connection with the Zimmerman case. [Powerline, 7/14/13, emphasis original]
Civil Immunity Provision Of Stand Your Ground Has Future Implications For Post-Trial Litigation
NPR: Florida's Stand Your Ground Law Also Affords Zimmerman "A Path To Pretrial Immunity" In Civil Trial. A July 15 article by NPR Washington correspondent Liz Halloran explained how Florida's self-defense law creates procedural roadblocks for litigants who wish to sue those who say they acted within the bounds of Stand Your Ground:
There's one big but, however, and that's in Florida, where Trayvon Martin's family is said to be considering a civil case against Zimmerman. (The U.S. Department of Justice is also undertaking a review of evidence in the case.)
In a civil proceeding against Zimmerman, the Martin family would have the opportunity to challenge a central, and controversial, section of Florida's stand your ground statute.
The section is titled, "Immunity from criminal prosecution and civil action for justifiable use of force."
Indeed, the section provides the opportunity for just that: a path to pretrial immunity for potential defendants who can prove in a hearing before a judge that a "preponderance of evidence" shows that their deadly or potentially deadly actions fell into the category of reasonable self-defense.
Zimmerman did not ask for an immunity hearing before his criminal trial, but that does not preclude him from requesting one if he faces a civil trial, says associate law professor Tamara Rice Lave of the University of Miami's School of Law.
At a pretrial immunity hearing, Lave says, Zimmerman would have to show a preponderance of evidence, quantified as a 51 percent burden, that he acted lawfully under the state's stand your ground statute. [NPR, 7/15/13]
Wall Street Journal: Civil Lawsuit Against Zimmerman "Would Face High Hurdles" Because Of Stand Your Ground Civil Immunity Grant. From a July 14 article:
Attorneys for Mr. Martin's family said they are considering filing a civil lawsuit against Mr. Zimmerman, though they haven't made a decision. "We're still trying to make sense of the verdict in the criminal case," said Benjamin Crump, a lawyer for the family. "We'll be talking about our options going forward in the coming days."
Such a case would face high hurdles, legal observers say. Mr. Zimmerman can seek immunity from civil lawsuits under Florida's so-called Stand Your Ground law--something his attorney said he planned to do. "In effect, there will be no civil suits," said Tamara Lave, a University of Miami law professor. "If there is a civil suit filed, it will be dismissed, and future ones will be barred." [The Wall Street Journal, 7/14/13]