The distinguishing factor of “Stand Your Ground” laws, which have been under renewed debate since George Zimmerman killed Trayvon Martin, is a simple concept: The rule was that a person had the duty to retreat if he can safely do so rather than use force against an aggressor in proportion to the force being used against him. “Stand your ground” laws eliminated this duty. Simple to write. Really hard to do.
Former New York City Deputy Police Commissioner John Timoney, who went on to be Miami Police Commissioner, has an op-ed in the New York Times. Surprisingly to some, and less so to others who are involved in the system, most police officials hate “stand your ground,” Timoney included.
Trying to control shootings by members of a well-trained and disciplined police department is a daunting enough task. Laws like “stand your ground” give citizens unfettered power and discretion with no accountability. It is a recipe for disaster.
To call it “unfettered power” is a bit too hyperbolic. It had plenty of fetters, but they were only considered after the fact, during what should have been the calm, reflective period when every detail could be considered.
[A] police officer is held to account for every single bullet he or she discharges, so why should a private citizen be given more rights when it came to using deadly physical force?
The first part of this sentence is one that raises eyebrows. While this may be how it should work, experience suggests otherwise, bringing the latter part of the sentence essentially in line the beginning. Most of us would argue that as long as the ‘good guy” ended up shooting the “bad guy,” everything else is a rationalization to justify it.
If you found yourself in a situation where you felt threatened but could safely retreat, you had the duty to do so. (A police officer does not have the duty to retreat; that is the distinction between a sworn police officer and the average citizen regarding use of force.)
Police officers are trained to de-escalate highly charged encounters with aggressive people, using deadly force as a last resort. Citizens, on the other hand, may act from emotion and perceived threats. But “stand your ground” gives citizens the right to use force in public if they feel threatened. As the law emphatically states, a citizen has “no duty to retreat and has the right to stand his or her ground.”
That police are trained to de-escalate an encounter doesn’t mean they do so, but Timoney’s point, that society authorizes certain members, who are charged with dealing with force and, at least theoretically, trained to end an encounter without anyone being harmed, is critical. While we may complain (regularly) that police fail in this regard, the answer is not to let everyone behave like bad cops, but to make bad cops do better.
[C}itizens feel threatened all the time, whether it’s from the approach of an aggressive panhandler or squeegee pest or even just walking down a poorly lighted street at night. In tightly congested urban areas, public encounters can be threatening; a look, a physical bump, a leer, someone you think may be following you. This is part of urban life. You learn to navigate threatening settings without resorting to force. Retreating is always the best option.
This is where Timoney gets to the crux of the matter. Indeed, this is where Geraldo’s hoodie point comes into play, as well as Zimmerman’s “suspicion.” Just as with the cries of “bully” that permeate the school hallways, fear permeates the streets, at least for some. One person’s normal is another’s threat. One never knows whether the hand in a pocket is grasping a handgun or a package of Skittles. The argument is whether one needs to wait until the gun is pulled before defending, at which point it’s too late, or can take pre-emptive action because he feels threatened.
We can argue amongst ourselves about what constitutes a threat, and which threats are sufficient to justify pulling the trigger on a licensed magnum. There is likely to be a great deal of disagreement about where the tipping point is between a threat of deadly force and unwarranted or mistaken fear. People believe with absolute certainty that the point where their sensibilities kick in, where they think concern turns into a legal reason to kill, is correct. As with most questions that depend on an individuals’ personal sensibilities, we tend to all have different views, yet are absolutely certain that ours is right and anyone who disagrees is wrong.
There are platitudes that allow us to rationalize the hazy areas, such as “better to be judged by twelve than carried by six.” How about better not to be judged or carried? No matter how much better platitudes make us feel, they almost never contribute much to help us think through these situations.
On the other hand, in the face of a threat, the ability to think things through with perfection, to know whether we can safely retreat without getting plugged in the back of the head, can be pretty difficult as well. The adrenal rush as we find ourselves in a threatening situation, with a split second to make a life or death choice, clouds our judgment at best. At worst, few of us are really equipped to process, no less make a rational decision, when thrust into a situation that presents a real threat of life or death.
Ever been in a car crash, with a mere instant between the recognition that something really bad is about to happen and it happening? The body just reacts without thinking, the foot jamming on the brake, because fear takes charge. Substitute a gun for the car and we’re no better at thinking things through.
Despite John Timoney’s opposition to the “stand your ground” law, the Florida legislature enacted it. The good news is that the prediction of never-ending gunfights in the streets didn’t happen. The bad news is that one person died, even though it’s not at all clear that “stand your ground” had anything to do with it. On the whole, Timoney is right that police are (or at least should be) better trained and equipped to make life and death decisions as to when deadly force should be used. The rest of us, not so much.
On the other hand, humans possess the reflexive “fight or flight” instinct, and it’s sometimes impossible for the person who finds himself in a terrible situation to know which course is best. Any law that encourages the participants to not harm another and live to argue the point another day is better than a law the encourages shoot now, think later. But if it comes down to my life versus yours, I’ll shoot first and deal with the consequences later.
Regardless of which side you are on, there is nothing simple about it.
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“[U]nfettered power and discretion?” That assumes individual power and discretion in a situation that could result in that individual’s death should be fettered in the first place.
All stand your ground does is a) remove an already non-existent duty to retreat and b) shift the burden of proof to its rightful owner: the state.
If this were a situation in which Zimmerman was not justified, then police and prosecutors will achieve probable cause. If they don’t, maybe its their “unfettered power and discretion” we should question.
I agree with you about the stupidity of stand your ground laws. As a practical matter, I don’t think that any prosecutor could fail to convict this fool “neighborhood watch captain” regardless what the jury instruction says about stand your ground.
The “neighborhood watch captain” went to make trouble. The kid rightly told him to F**k off. The two had some kind of verbal altercation. Then the fool shot him.
What kind of plausible scenario could he assert? He pulled out his gun and the kid ignored the gun and rushed at him? He could argue that the kid tackled him and, while grappling, he pulled out the gun in self defense, but I doubt the forensics would support that.
BTW, welcome back. I would have missed you if you had retired for good.
It does something else, and something very important. It creates a belief (whether deserved or not) that emboldens people to fight rather than flee. It may not be legally consequential, but never underestimate the importance of the psychology involved.
The forensics will show what they show. I’m always troubled when someone brings fists to a gunfight, though as others have argued, some people think a person without a weapon presents a sufficiently deadly threat (especially when embellished with sufficient and hyperbolic adjectives) to blow them away. I generally do not.
And I’m a little surprised that you missed me given how poorly you think of me and how poorly a treat you. But thanks.
Your understanding of the consequences of the Stand Your Ground law is quite incomplete. ‘Justifiable’ homicides are up 300% in florida since the law was passed.
[Ed. Note: Links deleted per rules, but they verify the 300% increase as stated.]
This was very much part of my understanding of the consequences, and part of my problem with the idea. It’s not clear that it means that people are being killed wrongly, or that people whose homicides are justified now were getting away with it before.
I don’t know that it all means, but I do believe we’re better with fewer people killed than more. I’m sure others will disagree, provided the “right” people are killed.
Three basic rules for firearms: 1) Always treat a gun as though it’s loaded; 2) Always be sure of your target; 3) Never point your muzzle at anything you don’t intend to kill. The latter two are applicable here, and emanate not from the lack of a legal disincentive, but from our humanity.
If people are “emboldened” to kill others unjustifiably because of a higher prosecutorial burden of proof, then our problem is not “stand your ground” or “castle doctrine.” If our problem is a lack of respect for a fellow human life, it is one which the law cannot adequately fix without over-inclusion—the injustices it would prevent would be cancelled out by just as many injustices on the other end, subjecting innocents with valid self-defense claims to expensive, oppressive, risky criminal trials. And it would be outweighed by allowing a more opportunistic prosecutorial discretion.
“Any law that encourages the participants to not harm another and live to argue the point another day is better than a law the encourages shoot now, think later. “
So if a man is running at you with a knife or sword and he is yelling at you “I’m going to kill encourages the participants to not harm another” – you should evaluate all of the possible escape routes, select one, turn your back on the man trying to murder you, and attempt to retreat?
So far as I understand it (and I have studied the duty to retreat long before the recent controversy) that is exactly what is required. Is that what you support?
I don’t see how the duty to retreat “encourages the participants to not harm another” when it requires the defender to expose themselves to a vastly higher amount of risk of grave bodily harm or death while doing nothing to stem or stop the criminal actions of the offender.
I might be inclined to agree, but there are folks out there who are itching for the authority to shoot. I’ve got an old post about the Castle Doctrine, discussing the specific case of Tom Horn. To this day, I still get crazy comments from brilliant Texans who spew generic nonsense about the Castle Doctrine, completely ignoring that the post is about the Horn case which involved a very specific variation.
The gist of the comments is that they want/have the moral right to kill whenever and whoever they want to kill, and they need the law to give them permission to do so. The law seems to have a much stronger influence on those who are itching to shoot than I would have believed, and it seems to sigificantly embolden those inclined to see things that way.
Much better. Nice to meet you, Paul.
If you can, you should. If you can’t, you shouldn’t. We can all dream up difficult scenarios, but the problem with answering is in the details. If the man running at you 100 yards away or five feet away. Makes a different. Can you close a door and be safe or is there nowhere to go. Makes a difference.
There’s no point to playing this game. It’s a matter of choices. If you can retreat safely, then retreat. If you can’t, then defend. Without a real situation, with all the ugly details that make up real situations, it’s a pointless exercise.
Nice to meet you too, I’m an occasional reader first time commenter (and I can’t remember which post it was, but one of yours a while back was fantastic which is why I visit from time to time although I followed a link here today). If possible I’d appreciate if you could delete my first comment. I don’t mind using my real name but I don’t like to expose my secret identity as a super-hero anonymous commenter. Thanks.
“If you can, you should. If you can’t, you shouldn’t.”
This is the problem I have with the duty to retreat laws. As I understand it there is no distinction between the can and can not. The duty to retreat applies even when it is not practical. Am I wrong, or is the law wrong? Doesn’t this mean that if one makes no attempt to retreat then the exercise of self defense is invalid and one is actually committing murder or another crime, legally speaking? (If you can’t tell, I am not a lawyer, just an armed citizen trying to understand obey the law).
The problem arises when retreat (a terrible word, as it smacks of cowardess rather than discretion) is easily and safely accomplished, but contrary to what we would really prefer to do. Say the guy with the knife is 100 yards away, you’re standing just outside the doorway of your home and can easily and safely step inside, lock the door and call the cops.
Without the duty to retreat, you stand there, smile, pull out your gun, wait for the guy to be 10 feet away, fire. All legal, as there was imminent threat of death and you had no duty to avoid it. If you had a duty to avoid it, and chose to stand your ground and invite the opportunity to shoot the knife wielding bad guy when there was no necessity, it’s murder.
There are many cases where it’s a whole lot tougher to figure out right and wrong, and each has to be considered on its specifics. The biggest problem with discussions is that examples are always fact specific, but my view relates to the overarching choice favoring fight or flight.
“If you had a duty to avoid it, and chose to stand your ground and invite the opportunity to shoot the knife wielding bad guy when there was no necessity, it’s murder”
That’s the part I don’t get. If one has a general legal right to be in that location, why does one have a legal duty to not exercise that right due to the criminal actions of another? Why would one not be free to remain in one’s own front yard because of the criminal actions of another person? Why would one no longer have the right to self defense because one stayed on one’s own property (or other piece of ground)?
Now practically speaking I’d go inside in such a case if possible as I believe the only way to win a fight is to avoid it …but I don’t like having my freedoms denied to me because of the criminal actions of others. Seems like a very bad precedent. It also seems likely to lead to abusive prosecution – what if the man is 22 feet away and you face murder charges for not retreating? What if you are convicted for making a different judgment call than what a prosecutor makes after the fact when they aren’t facing an active threat?
I loath violence, even defensive violence, but not as much as I loathe giving the power of discretion to prosecutors who have an interest in prosecuting you.
I see you’re back to using your secret superhero identity?
The answer is one of choice, whether the right to be where one has a legal right to be, in and of itself, is worth the life of another human being. We have lots of rights that are curtailed in order to live peacably in society. You have a right to walk down the street. So does the guy walking toward you. You could both walk into each other, banging heads, over and over, until one decides to throw the first punch. Or one or both could move aside and keep on walking, no punch thrown.
Is it worth a human being’s life to maintain the right to stand where you have the right to stand? There are other remedies, such as trespass if he comes onto your land, rather than killing him. There are choices to be made about whether it’s worthy of taking a life.
That the law places decisions about whether you made the right choice in the hands of a prosecutor is a problem for some people, and it’s a fair problem. I still place the value of human life, even the life of a guy who did something wrong, over the issue of prosecutors make decisions or the right to stand where the law allows and kill anyone who challenges that right. That’s my choice.
I agree with SGH here. A human life is simply worth more than your right to stand somewhere, or for that matter, for the deposit bag of money you’re carrying to the bank.
Even where one could arguably make a case that they were apprehended by an imminent threat of deadly force, there are many times where I think the *right* thing to do is to de-escalate by not asserting the interest which they are attempt to take from you (whether it’s the property interest in the money or the liberty interest in moving about wherever you please in public).
I think sufficient discretion must afforded to the individual, not left post hoc to the prosecutor. Sure, it might lead to some idiot bloodthirsty Texans doing what they can get away with. That’s OK.
What’s not OK is to actually argue on some dubious moral authority that your right to walk down a particular street at a particular time is worth killing someone over.
“I see you’re back to using your secret superhero identity?”
Facepalm/blush/kick myself. At least it’s not my super-secret identity.
“Is it worth a human being’s life to maintain the right to stand where you have the right to stand?”
Is the life of a criminal worth enabling criminals to dictate the actions of law abiding citizens?
“the right to stand where the law allows and kill anyone who challenges that right. “
I don’t think that’s the issue. I think the issue is whether someone can use the imminent threat of criminal violence to coerce you to flee.
Thanks for the dialogue, not many are willing to actually discuss the issues.
By calling the person with the knife a “criminal,” we dehumanize the person and create a one-dimensional villian. It ain’t necessarily so. He may be a father to some great kids. A decent husband. A hard-working guy who got pushed too far. A sociopath. Want to find out after he was needlessly killed?
Let’s be careful not to reduce human beings to caricatures. It makes them easier to kill, but it ignores that they’re real people. Aside from this one instance, they may be pretty good people. If you met them at a coffee house, maybe you would become good friends with them. You never know.
As for getting “coerced to flee,” if the price is a human life, then it seems like a pretty sound reason to be coerced. Or, maybe it’s just the exercise of sound discretion. No one should die for a verb, noun or adjective.
And it’s good to be able to discuss this. The biggest stumbling block is that many refuse to see the nuance, and want to argue black and white. Dopes aren’t much fun to discuss stuff with.
“By calling the person with the knife a “criminal,” we dehumanize the person and create a one-dimensional villian.”
I disagree. Only humans are criminals, to label one correctly as such is merely to reveal their defining characteristic with regards to the matter at hand.
“It ain’t necessarily so. He may be a father to some great kids. A decent husband. A hard-working guy who got pushed too far. A sociopath. Want to find out after he was needlessly killed?”
What about the people who are incurably violent sick individuals? Want to find out after you are killed? Wait, you can’t.
“As for getting “coerced to flee,” if the price is a human life, then it seems like a pretty sound reason to be coerced.”
Really? Even if the life at stake is that of a Cho or Jared Loughner? It’s better to flee than take the life of someone bent on taking many more lives?
That’s a real life scenario. Take the Arizona shooting. That’s a real life case. An armed citizen responded by running towards the gun fire although he was too late to stop the attack. Under the duty to retreat he should have run away. Should that really be the standard, everyone (but the almighty representatives of the state) run away and not try to stop mass murderers?
“And it’s good to be able to
discuss this. The biggest stumbling block is that many refuse to see the nuance, and want to argue black and white. Dopes aren’t much fun to discuss stuff with.”
On that we are in perfect agreement.
You can’t tell the nice ones from the sociopaths without a scorecard. Say someone sees you, carrying, walking up to a nice house to see a guy about a horse. It’s the wrong house. You want the one next door. The nice gal in the nice house sees your weapon, and is a bit skittish because she was raped the day before. As you get to the door to say “hi” and just before you learned that you went to the wrong house, she blows your head off. Better safe than sorry, you know.
Oops. Every point your raise is fair, but it’s a choice (as I said in the beginning). Do we presume everyone’s a Jared Loughner and kill them or presume everyone is you and let them live. Make the wrong call and it’s too late to say “sorry.”
My vote is let them live, if possible, and find out. Your vote is kill them first and find out. That’s what it comes down to. After hearing your arguments, I still prefer letting people live than killing them whenever possible and hoping the guy you killed is bad enough that you don’t feel too badly about it.
“Do we presume everyone’s a Jared Loughner and kill them or presume everyone is you and let them live. Make the wrong call and it’s too late to say “sorry.””
There’s an easy way to distinguish between a threat and a non-threat. Is the person aiming a weapon at anyone? Is the person using the weapon at anyone who isn’t a threat to them?
I wouldn’t have shot Loughner if I saw him walking down the street, or if I saw him riding in that taxi. I would have shot him as soon as I could right after he pulled out the Glock and started shooting people.
“My vote is let them live, if possible, and find out. Your vote is kill them first and find out. That’s what it comes down to. After hearing your arguments, I still prefer letting people live than killing them whenever possible and hoping the guy you killed is bad enough that you don’t feel too badly about it.”
I only favor shooting if there is a reason to believe they are actually a threat. Reasons include: the suspect is shooting/stabbing bystanders, raping someone, and carrying arms at the ready position while threatening murder. If someone had a holstered handgun or slung rifle and they said “I’m going to shoot you” I would not shoot them as mere words are not a reason to believe they are serious.
We can go through scenarios where there is an apparent threat (such as the off duty cop with a gun drawn to stop the 7-Eleven hoodie wearing bandit) getting shot by the on-duty cop who thinks he’s the gun wielding bad guy, but the point remains the same.
As if said before, the trigger happy are not the norm among permit holders, as evidenced by the fact that we don’t have an overabundance of cases like Zimmerman/Martin.
I’m not saying that such people don’t exist, or even that there aren’t a disturbing number of them who seem to think they should shoot first. I am saying that almost every civilian knows that any shooting, whether fatal or not, will most likely be examined in detail and fall under some level of scrutiny that they will find extremely uncomfortable, even if they are found justified in the end. This gives most people who legally carry, even the itchy trigger fingers, the incentive to make an effort to avoid trouble at all costs.
Gun owners generally do not want to be noticed.
Nobody said otherwise. I have to tell you, gun owners seem awfully defensive while arguing there’s no reason for them to be.
It comes from being painted with a broad brush as trigger happy hero wannabes who live in a perpetual state of fear/paranoia (and who have small penises).
But you aren’t painting so broadly, so I apologize.
I think the nuance of the spirit of the law should probably fall somewhere between the two concepts. In general, as law abiding citizens, I believe it is incumbent upon us to avoid violent confrontation/conflict. Initiation, escalation, or invitation to violence fall outside acceptable behaviors. Firmly insisting on your right to be where you are (outside your home) can easily fall into any of those categories and while they may not place you outside the letter of the law in some places, I believe they place you outside a certain moral spirit of law abiding citizenry. That being said, when confronted with true, imminent violence choices are narrowed and the time to make those choices is significantly narrowed. I don’t believe a law that in practice places the burden of lawful decision-making solely on the person suffering violent assault meets the narrowly defined needs of the government or society to control violent behavior, nor does it remain inside that moral spirit of law abiding citizenry.
In practice, duty to retreat laws have been used in a way that seems to imply that the victim should place the value of their attackers lives above their own. (I can’t site cases, I fear, I’m not a lawyer, but I believe they can be found) For me, this indicates a failure of the applied law. It is possible, though I haven’t seen clear information, that SYG laws remove too much of the requirement of discretion from the citizen. That also would be a failure of the applied law.
What I would like to see in legal practice is a recognition that law abiding citizens have a responsibility to avoid initiation, escalation or invitation to violent confrontation/conflict. However, that in the face of imminent credible threat of death or great harm they can reasonably meet force with force. I would like to see the burden of proof remain with the state, consistent with our foundational legal principles. And in pursuit of that burden any cases involving lethal force (including by agents of the state) be fully investigated to determine the particulars.
In this sense, the Florida case concerns me. From what I know, there is a real possibility that Mr. Zimmerman initiated or invited a confrontation that devolved into violence. From the SYG perspective I believe he may have no standing. There may be other elements of self-defense law which cover this case, but I believe he bears a fair measure of responsibility for the violence that ended in the death of Mr. Martin. From what I know. I don’t believe this case will become clear without a full accounting of the facts which may not be possible short of court, and maybe not then.
As regards Mr. Timoney, I reject his characterization of the citizenry as frightful folk likely to blast away at all that makes them nervous. And the record seems to support me more than he. Likewise, while the theory of police officers being trained to a higher standard may exist, the practice does not support that supposition.
No need to apologize. No need to explain.
Are there any bets going on how this case will play out with Nancy Grace and the Harpies of HLN?
I don’t watch, so I’m not in any position to verify, but I could certainly bet on the line they’ll be taking. Prejudgment seems to be their forte.
Found your blog in searches related to the Zimmerman/Martin incident.
Your article includes the line, “But ‘stand your ground’ gives citizens the right to use force in public if they feel threatened. ”
The Florida stand your ground provision actually states, “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…” “Who is attacked…” Feeling threatened is not justification. An attack must have taken place for stand your ground to come into play. I can’t see how that gives citizens “unfettered power and discretion.” Am I missing something?
The full instruction reads:
It’s an inartfully worded instruction, since if a person was forced to wait until he was, in fact, attacked with force sufficient to cause death or great bodily harm, by the time the right to respond arose, he would already be dead. The meaning of “attack” has to be a reasonable belief that an attack that will cause death or great bodily harm is imminent. It cannot be that he has to wait until the attacker fires his first bullet at his head.