Stand Your Ground on Stand Your Ground

by Charles C. W. Cooke
Such statutes don’t put anyone at risk, and rest on sound legal principles.

By dint of an unholy marriage between genuine ignorance and political opportunism, the Zimmerman trial has this week led to a peculiar dispute as to the propriety of so-called Stand Your Ground rules. “It’s time,” attorney general Eric Holder told the NAACP on Tuesday, “to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods.” Fittingly, the crowd broke into applause before Holder had even finished his sentence.

Others have eloquently argued that the conflation of the Zimmerman trial and Florida’s Stand Your Ground statute is nonsensical, and none so sedulously as Reason’s Jacob Sullum. They are correct, of course; one’s “duty to retreat” evaporates as an option when one’s back is on the concrete. Nevertheless, if the likes of Eric Holder are set against the law, it probably is a good time for its advocates to take a second look, and to answer its critics, too.

In this pursuit we might begin by denouncing as demonstrably false the popular idea that Florida is a legal backwater and Stand Your Ground an outré legal novelty. Reviewing American state law, the constitutional lawyer Eugene Volokh did a quick headcount this week and revealed that:

The substantial majority view among the states, by a 31-19 margin, is no duty to retreat. Florida is thus part of this substantial majority on this point. And most of these states took this view even before the recent spate of “stand your ground” statutes, including the Florida statute.

In essence, “Stand Your Ground” is a blanket term for any legal regime in which individuals do not have a duty to run away in the event that they are attacked. In states with such systems, juries are not expected to consider whether an individual could feasibly have retreated before resorting to violence in his defense; in states that do not, juries must inquire as to his chance of safely fleeing. In other words, in most of the country the Castle Doctrine has been extended to the village.

The primary argument against such a law is that the mésalliance of concealed firearms and permissive self-defense rules affords those with evil intent a legal loophole to murder. There is, it must be repeated ad nauseam, no evidence whatsoever that George Zimmerman was possessed of anything approaching evil intent. But I suppose that this isn’t to say that others might not be. Florida’s law, which is fairly typical on this front, holds that:

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.

Thus, critics such as Eric Holder charge, one individual simply needs to provoke another into taking the first swing, and then, ostensibly acting in self-defense and without a duty to retreat, he will be able to kill whomever he wishes. In an otherwise excellent reaction to the Zimmerman verdict, The Atlantic’s Ta-Nehisi Coates hinted at this last week, imagining that “an intelligent, self-interested observer of this case, who happens to live in Florida, would not be wrong to do as George Zimmerman did — buy a gun, master the finer points of Florida self-defense law, and then wait.”

Superficially, there is certainly some logic behind this claim. Firearms are a means by which the weak may put themselves on at least an equal footing with the strong. People with guns tucked quietly away may certainly become less risk-averse and more confrontational. The vast majority of gun owners are responsible, of course, and almost all holders of concealed-carry permits have gone through a training program of some sort. But not everybody is a good guy. In a country that enumerates the right to bear arms and promises equal protection of its laws, there is little way to weed out those who might one day commit a crime — and it is never a good idea to restrict liberty because it could be abused. Nevertheless, that doesn’t mean it’s not a potential problem.

Yet to “master the finer points” of self-defense law is to watch this critique crumble and fall. “Any intelligent and self-interested observer” who wished to kill with impunity in pretty much any American state would have his work cut out. In almost every state, if and when an individual enters into an altercation with the deliberate intention of provoking the other party into threatening him with death or injury, they lose the right to claim that they were acting in self-defense. Pretty much every Stand Your Ground system thus takes into account the motivations of someone who might look for an excuse to start a potentially lethal fight, or even of someone who is likely to provoke another as the byproduct of latent racial animosity.

This includes Florida, which per the Huffington Post’s Professor Alafair Burke,

follows traditional self-defense limitations by prohibiting “initial aggressors” from using force provoked by their own conduct. A defendant in Florida cannot claim self-defense if he “initially provokes the use of force” against himself . . . 

The second, and arguably more important, problem with critics’ conjecture is that what they claim might happen, well, just doesn’t. There is no question in my mind that in a system that honors the rule of law, presumption of innocence, and reasonable doubt, George Zimmerman should not have been found guilty. But I dissent somewhat from many of his apologists in that I do think that the defendant acted stupidly. A neighborhood “watchman” is not the same thing as a neighborhood cop, and at least from what we can know there was no clear-cut reason for Zimmerman to take it upon himself to make the transition from one to the other. To draw on Florida’s own legal language, at no point was Zimmerman compelled to get out of his car in order to “prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” Whatever his legal liability, Zimmerman’s choices created a situation that led to the death of another man. That much is indisputable.

This behavior, however, had pretty much nothing to do with the principle behind Stand Your Ground. In no reasonable universe can George Zimmerman be painted as a Dexter-esque vigilante, and attempts to cast him as an example of what “might happen” under such laws smack of political exploitation. Indeed, it is telling that such charges emanate primarily from those who objected to broad self-defense laws and permissive gun laws long before anybody knew Trayvon Martin’s name. And telling, too, that they are struggling to find other poster children for a problem that their rhetoric implies is widespread.

The related claim that, by acquitting George Zimmerman of the charges brought against him, Florida has established a license for non-blacks to go around summarily executing blacks on the slightest pretext is downright unhinged — according to the Tampa Bay Times, it is black Floridians that have disproportionately relied on the defense in court — as is the idea that many Americans would wish to take advantage of such a provision. It seems that the presumed consequences of Stand Your Ground, as peddled widely this week by race-baiters and armchair legal experts alike, are as off the mark as the discredited conjecture that widespread concealed-carry permissions would lead to Americans shooting one another over petty disputes in the grocery store.

Inextricable from the unalienable rights to life and liberty that serve as the bedrock of our republic is the corollary right of self-defense. Far from being the invitation to anarchy that some have insinuated it is, Stand Your Ground” is a legal principle that recognizes those rights, and attempts to tilt the balance in favor of the attacked. It serves, if you will, to remove the heckler’s punch from dominating the public square.

When tragedy hits, it is tempting to look for simple causes and call for hasty legislation as a panacea for all the world’s ills. But this is rarely wise. Contrary to the wailing of the partisans on both sides, in the case of George Zimmerman and Trayvon Martin there were no winners — there are only losers. There is no compelling reason to add a sound legal principle to the casualty list.

— Charles C. W. Cooke is a staff writer at National Review.