Sound The Retreat (Update)

Remember when the word “wilding” was introduced into the general lexicon so that we would have a word to capture the “super-predator” gangs of youths who were intent on destroying society?  It came out of the  Central Park Five case, and produced a huge shift in our approach to juvenile prosecution and punishment.

“Justice,” people cried. They demanded justice. Don’t let these super-predator kids destroy our world with wilding. 

Except it didn’t happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions.  Of course, we didn’t learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.

The  New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It’s titled “Trayvon Martin’s Legacy,” a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:

The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.

These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.

It’s been explained, calmly and rationally, over and over. It’s impossible to believe that the editorial board of the Times, a smart bunch of folks, didn’t hear it or grasp it. If so, then what’s written here can only be attributed to disingenuousness and a deliberate effort to deceive.

Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.

The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they’re allowed. This isn’t a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.

But that’s not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It’s not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower “self-deputized” gun nuts with “a grudge.”

This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.

The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card.  Like most people, I can’t let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?

The second is the gun card, as reflected in the “Kel-Tec 9 millimeter” language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I’m no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It’s irrelevant whether that’s my favorite amendment, just as it’s irrelevant whether cops like the Fourth.

The same Constitution we invoke to protect the rights we favor protects some things that we don’t. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren’t as dear to us as others.

A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that’s not the facts in Zimmerman, you say. True, but laws don’t exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?

While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.

While it’s painfully hard to know whether a person’s fear of harm was “reasonable,” especially when there is only one side to the confrontation who is alive to tell the story, it’s a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it’s been the right choice for all those years since.

As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we’re human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened.  It’s what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.

Update:  In an interview on Anderson Cooper 360, one of the jurors spoke:

COOPER: Because of the only, 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 he was going to have bodily harm, he had a right.


This mention of stand your ground gave  rise to an apology from Eugene Volokh, who had  also written about this Times editorial subsequent to this post.


It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the … Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.


While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.

It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn’t be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case.

While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.

8 comments on “Sound The Retreat (Update)

  1. Scott Brownstein

    I agree with your comments, however, there is a problem with those pesky facts. Not the shadowy facts from February 26th, 2012, but the facts from the trial and the jury instructions themselves. George Zimmerman DID NOT ask for a stand you ground hearing and his defense did not choose to claim anything under the Florida law. It simply added nothing to his defense and would have run counter to the defense’s narrative of the events. Zimmerman claimed (and apparently the jury concurred) that he was being pinned down to the sidewalk by Martin and physically assaulted. Quite simply, he had no option of fleeing in order to defend himself.

    Stand you Ground has absolutely nothing to do with this case and I am tired of those who disagree with the facts and the judgement claiming that it does. All it serves to do is show that they have not dispassionately followed the case and hold dearly to their pre-conceived notions of what should have happened in that jury room.

  2. SHG

    I think I was pretty clear about this. But more importantly, this is not another post about the Zimmerman case. but about using the emotional sense of injustice to influence perceptions about race, guns and basic self-defense law.  Let’s not devolve into a discussion about Zimmerman not using a Stand Your Ground defense. He didn’t. End of story.

  3. Jim Majkowski

    Thank you again, Scott. This is one place where I can enjoy and reflect on thoughtful comment by someone who is both well educated and not completely self-centered (what is there about people born after 1975 or so?). As for TNYT editorial board being ashamed, it appears to me that shame has become a rare thing in America.

  4. TJIC

    > It’s irrelevant whether that’s my favorite amendment, just as it’s irrelevant whether cops like the Fourth.

    Well said.

    Too many people claim to be liberty lovers, yet pick and choose the kinds of liberty that are useful to them.

    I may be hetero and Christian, but I intensely dislike the conservatives who defend the rights they like…but skip over rights that are relevant to gay atheists.

    I may not drive more than a mile a day and use relatively little electricity, but I dislike leftists who want to define away rights to own larger vehicles, drive longer distances, etc.

    Once you start playing that game “liberty” is redefined to be “a spoils system based on whoever has the majority at the time”.

  5. nidefatt

    Fascinating. I forget sometimes how weird it can get in blue states. I can’t believe that the NYT is a group of pacifists, New Yorkers aren’t terribly peaceful people. I have to assume their end game is no guns for self defense, thus making an end run around the right to carry? Sad they felt the need to go after the entire concept of defending oneself to do it. And if I have to hear one more person tell me how hard prosecutors have it I’m going to scream. Jost on Justice put out a post yesterday that made me choke on my coffee.

  6. JS

    This case is fascinating to me for the way the politics behind it have utterly flipped out some otherwise smart people I know. I’m a criminal defense attorney myself, and having managed to follow the trial quite closely, I am quite satisfied with there being more than enough reasonable doubt to acquit.

    However, I know a number of attorneys, and more importantly, criminal defense attorneys, who are SURE that the People met their burden and Zimmerman should have been convicted. For many of them, this belief is quite transparently couched in their political worldview. I simply cannot believe that a criminal defense attorney who paid ANY attention to this trial could honestly say that the People met their burden, and if they believe they did, perhaps they should go into a different line of work. Will drafting, perhaps. Because if they think the burden was met in this trial, I can’t imagine they’re properly advising their clients on the relative risks of going to trial on their own cases.

  7. SHG

    We like to think that lawyers, in general, can detach their emotions and politics from reason. Some days, it’s harder than others.

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