As I noted yesterday, the usual suspects have seen fit to jump all over a new Florida shooting in the vain hope that it will help them to discredit the state’s Stand Your Ground law. Over at Talking Points Memo today, editor Josh Marshall writes an extraordinarily silly headline, “Maybe the Newtown Kid Coulda Walked?,” and then goes on to claim that, with this story,
we have the latest development in the national joke known as “Stand Your Ground” gun laws. The murderous jerk who killed a man in a Tampa theater yesterday because he wouldn’t stop texting may be planning to use a “stand your ground” defense.
Not really, no. What we have is, at worst, a series of ignorant journalists trying desperately to tie a horrible murder to an unrelated law that they don’t like, and, at best, a criminal who doesn’t understand that law allegedly saying that he intends to use it where it doesn’t apply. “May be planning” is a pretty weasely claim at the best of times. Either way, if the defendant does try to involve Stand Your Ground, he’ll have his work cut out. Why? Because, as I wrote last year,
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.
This is to say that, as Andrew Branca correctly notes at Legal Insurrection,
“Stand-Your-Ground” is not some new or parallel form of legal defense. It is best thought of as a “feature” you can take advantage of if you are actually engaged in legitimate self-defense to begin with. If you are NOT engaged in legitimate self-defense, “Stand-Your-Ground has NO application. Zero, zilch, nada.
That “if” is important. As the police implied, the suspect was almost certainly not engaged in anything approaching “self-defense” and, therefore, he wouldn’t qualify to even consider that defense. Further,
. . . even if you WERE engaged in legitimate self-defense, “Stand-Your-Ground” merely relieves of you of any existing duty to take advantage of a safe avenue of retreat before resorting to the use of deadly force (in some states, ANY force) in self-defense.
But such a duty NEVER exists unless a safe avenue of retreat actually exists in the first place. If there is no safe avenue of retreat, there is no duty to retreat, and “Stand-Your-Ground” again has NO application. Zero, zilch, nada.
Correct. And as Blanca observes, there was no avenue of retreat available anyhow:
Anyone who has ever, even once in their life, had to excuse themselves from a theater seat knows how awkward and painstaking the process is. ”Excuse me, pardon me” . . . step on a toe here, an instep there . . . “so sorry, excuse me.” It’s difficult to imagine of a position common to normal life in which retreat from an imminent threat could possibly be more difficult then from a seat in a populated theater. Even were Reeves in the aisle seat, his wife would then not be, and he would never be required to flee a deadly threat and leave her behind.
Even if Reeves use of deadly force was appropriate given the threat, there was never any safe avenue of retreat open to him.
That being the case, there would never have been a duty to retreat, whether or not “Stand-Your-Ground” had ever been adopted.
In other words: a) the defendant almost certainly wasn’t involved in an act of self-defense, so Stand Your Ground likely won’t even be an option, and b) there being no way that he could have retreated anyway, whether or not he could have done so is irrelevant to the case. Even if the killer somehow manages to turn this into a self-defense case, Stand Your Ground will almost certainly play no role.
I’d add, finally, that Florida law explicitly prohibits individuals from claiming self-defense if they were the one who “initially [provoked] the use of force.” Contra the witless claims of the hysterics, it is not a doctrine of aggression: You can’t start a fight, shoot someone in the process, and claim that you were defending yourself. Whatever it was that possessed Josh Marshall to make such a gross reference to the Newtown massacre, it certainly wasn’t understanding of the question at hand.
As with the Trayvon Martin case, this incident really has nothing to do with Stand Your Ground. No dice, I’m afraid.