Last week, Florida special prosecutor Angela Corey announced the arrest of George Zimmerman on charges of second-degree murder in the killing of Trayvon Martin. Initially, law enforcement authorities had declined to arrest Mr. Zimmerman, explaining their decision as a consequence of Florida’s “Stand Your Ground” law (which I will refer to here as “SYG”). Since the shooting death of Trayvon Martin in Sanford, Florida, made national news, many (including yours truly here and here and Professor Eugene Volokh here), have doubted that Florida’s SYG law truly prohibits the arrest and prosecution of a shooter like George Zimmerman.
Questions about SYG laws are of national importance, because in addition to Florida, twenty-three other states have comparable legislation that expressly expands the scope of a frightened individual’s right to use force in self-defense. Whether or not Florida’s SYG law will ultimately protect George Zimmerman from successful prosecution remains to be seen. In the meantime, however, I wish to raise a different question about SYG laws in this column: What vision of reality do they reflect?
The Duty to Retreat, the Castle Doctrine, and Stand Your Ground
To engage in an informed discussion of SYG laws, it is useful first to understand the “duty to retreat” and the “castle doctrine.” The “duty to retreat” is a principle of criminal law in a number of states that holds that one person may not lawfully injure or kill another person in self-defense if the would-be self-defender could have safely fled the danger (i.e., “retreated” from the assailant) and thereby avoided injury to all parties. Where it exists, the duty to retreat stems from a judgment that the life of a person who is threatening aggression is nonetheless worth sparing, if the threatened individual can protect his own safety through flight.
Even in “retreat” jurisdictions, though, one does not have to attempt risky escape maneuvers before resorting to force in self-defense. The duty to retreat requires safe retreat, where feasible, not heroism.
Where the criminal law imposes a duty to retreat, it frequently recognizes an exception to the duty that is known as the “castle doctrine.” Under the castle doctrine, one is under no obligation to retreat from an assailant if one faces the assailant’s threat in one’s own home (or, depending on the jurisdiction, in some other places, such as one’s office or car). Therefore, for example, if a person threatens imminent death, substantial bodily harm, kidnapping, or rape against another person in the latter’s home, the latter may kill the source of the threat, without retreating, even if a safe retreat would have been practical. The underlying idea is that one should never have to retreat from one’s own home (one’s “castle”) for safety.
Stand Your Ground laws extend the castle doctrine more broadly and hold, for instance, that if anyone poses a threat of imminent death, substantial bodily harm, kidnapping, or rape against another, the threatened party may use deadly force to defend herself without needing to consider retreat, so long as she (the threatened party) is lawfully present in the location at issue. This is true no matter how easy and safe retreat might have been. As Professor Volokh has described the principle here, it operates to protect an individual’s liberty to occupy a place lawfully, notwithstanding the demands of a thug who has threatened her and demanded that she either leave or die.
There is something very intuitively attractive about the idea behind SYG laws. It holds that if we are engaged in lawful, legitimate activity in an area where our presence is permissible, then no civilian should be able to demand that we stop doing what we are doing and leave the area. By imposing a duty to retreat, on this analysis, the law improperly subordinates our right to remain wherever we happen to be, to the power of the armed assailant to dictate what we do.
Granted, the duty to retreat does not literally demand that we retreat on the thug’s orders. However, it does prohibit us from exercising our right to self-defense if, under the circumstances, we could safely retreat from the assailant. Thus, the duty to retreat, one can argue, effectively sides with the assailant—and against the victim—by insisting that victims obey a thug’s commands if they can safely do so.
Imagining a Deadly Confrontation Without an SYG Law
Consider, then, what might happen in a “retreat” jurisdiction, in a situation in which an assailant is unquestionably threatening his victim’s life, while also unambiguously offering the victim a safe alternative in the form of flight.
Imagine, for example, that Bob Bully approaches Vigo Victim in a public park and says, “Listen, Vigo, I’m holding a loaded Glock in my hand, but I’m going to close my eyes and count to five. That will give you more than enough time to leave the park. If I open my eyes and you are still in this park, I will shoot you dead. Count on it.”
Bob then closes his eyes, and Vigo has a choice: he can leave the park for safety (for purposes of our hypothetical example, assume that this will take almost no time and will truly guarantee Vigo’s safety); or he can remain where he is.
If he remains where he is, then Vigo knows that Bob will shoot him. Unbeknownst to Bob, though, Vigo has a gun of his own, and could—if he so chose—shoot and kill Vigo immediately, instead of leaving the park.
If there is a duty to retreat, then Vigo may lawfully preserve his own life in only one way: by leaving the park, just as Bob ordered him to do. Under these circumstances, Bob, a would-be murderer, has the legally protected power to order Vigo to vacate a public park. It may seem wrong for the law to be giving Bob that power.
Bob Bully may resist this characterization and argue that the law will visit penal consequences upon him if he exercises this sort of power over Vigo. Therefore, he could argue, the law in no way sanctions his threats. Bob might also contend that the law is evenhanded in that it prohibits both his and Vigo’s use of deadly force.
The weakness in Bob Bully’s arguments is that although they accurately capture the literal meaning of the statue, they also leave Vigo Victim defenseless if he wishes both to continue living and to remain in a location where he has every right to be—at least, in the (likely) event that law enforcement officers are absent from that location and thus unprepared to stop Bob from committing violence against Vigo if the latter refuses to leave.
Imagining a Deadly Confrontation in an SYG Jurisdiction
Now, let us assume the same scenario I described above—involving Bob Bully and Vigo Victim—but this time, the jurisdiction at issue has an SYG law.
In this scenario, rather than characterize the SYG law as preserving Vigo’s liberty, however, I would suggest that it is preserving Vigo’s right to resist the domination of a culpable, deadly assailant.
To appreciate the difference between liberty in the abstract, on one hand, and resisting a culpable assailant, on the other, note how distinct the facts would seem if just a few things about the scenario were to change. Imagine now that instead of intentionally threatening someone’s life, Bob is suffering from a highly communicable and deadly disease that will infect and ultimately kill anyone who approaches within ten feet of him. Assume further that the illness has impaired Bob’s mental functioning so that he does not realize that his presence poses a threat to others. Bob is, like his analogue in the first scenario, standing inside a public park, but he is about twenty feet away from Vigo. Noticing Bob in the park, Vigo has two choices if he wants to preserve his life in the face of Bob’s deadly illness: he can walk away and know that he is far enough from Bob to avoid infection, or he can stay where he is and shoot Bob dead.
As in the first scenario, Vigo has every right to be in the public park and is not doing anything illegal that would trigger an obligation to leave. For Vigo to leave the park, under the circumstances, is therefore for him to relinquish his liberty, to the same extent as it would have been for Vigo in the earlier scenario. Here, however, killing Bob would strike many an utterly gratuitous use of deadly force, to the extent that Vigo could have safely left the area in which danger—in the form of Bob’s deadly illness—existed. In this setting, Vigo’s freedom to remain in the park, in other words, may appear far less important than Bob’s freedom from being killed, and an SYG law accordingly misguided in application.
The Difference Between the Gun Threat Scenario and the Highly Contagious Disease Scenario
What differentiates the two cases? It is the culpable attempt of the first Bob to dominate Vigo through a death threat. In both cases, the retreating Vigo has lost some of his liberty. The difference is in the reason why. In the contagious disease scenario, Bob is entirely innocent regarding the threat he unknowingly poses. In the gun scenario, Bob is entirely culpable and, worse, malicious.
To the extent that culpability and malice on Bob Bully’s part matter—beyond Vigo’s loss of liberty to be where he has a right to be—a legal authority to use deadly force in the first scenario would appear to function, in part, as a judgment condemning Bob, and not simply as a protective measure to be used by Vigo. Because Bob is intentionally threatening Vigo’s life, we may think of Bob as having temporarily forfeited his own right to be protected by the law from Vigo’s use of deadly force. Or, to put the matter differently, we might say that Bob to some degree deserved to be shot.
The Implications of Highlighting Culpability on the Part of the Person Who Poses a Threat to Another
What are the implications, if any, of having Bob’s culpability play an important part in explaining the intuitions of those who support SYG laws? The main implication is that when it becomes difficult to attribute culpability to the threatening party, it becomes correspondingly difficult to justify applying an SYG law. Because the two Bob-and-Vigo narratives above may be atypical, let us now consider a more likely scenario: the story of Billy and Victor.
Victor is walking down a poorly lit street when he suddenly catches sight of Billy, a teenage male who appears to be loitering. Victor becomes frightened, because he does not know Billy and perceives Billy’s gait and posture as menacing. If Victor were asked to explain exactly what frightened him about Billy, Victor could not provide much more information than the fact that looking at Billy elicited an elevated heart rate, sweating, and other signs of anxiety in Victor. This reaction, Victor might explain, made Victor feel confident that Billy posed a threat to Victor’s life. Assume, in this case, that Victor knows that he can safely retreat from Billy (and thus, from whatever threat Billy poses) if he chooses to do so.
What should Victor do in this situation? One approach might be to say that Victor lacks a reasonable basis for being frightened, and he therefore ought to do nothing. A second approach would hold that like all species that are vulnerable to predators, we humans have evolved to be highly responsive to threatening situations, and Victor can therefore trust his anxiety reaction and ought to be free to use deadly force to protect himself from the threat. I would argue that neither approach is satisfactory.
If someone feels frightened, it is insensitive and perhaps ignorant to dismiss the feeling by saying that there is no reason to do anything. Fear and anxiety are basic signals through which our body tells us—screams at us—“flee or fight.” Even if we did not care about being sensitive, it would be unrealistic to demand that people who are seized by fear should simply go about their business as though nothing is amiss. Prudence dictates that we must, in other words, take people’s anxiety and fear seriously, and attempt to address them.
At the same time, however, it would seem overly optimistic to conclude that a person experiencing anxiety and fear of the sort that Victor experienced above is reliably reacting to a real threat to his life. Our fear alarms tend to be overly broad, and a license to use deadly force whenever we feel threatened could accordingly result in many deaths of completely innocent people.
This is especially true in a society like ours, where members of different racial, ethnic, religious, and cultural groups may not have regular occasion to interact with one another. In the absence of frequent interactions, misunderstandings, misinterpretations, and sometimes unwarranted or disproportionate suspicion and anxiety are all the more likely to prevail. An atmosphere of this sort is unlikely to yield consistently accurate assessments of danger, absent direct and express threats of the sort that Bob made against Vigo in the first scenario, where Bob pulled his gun and started counting down.
For Victor, then, the ideal solution is a safe retreat. Retreat will address his anxiety (as it falls within the flight-or-fight set of emergency responses to threats), but it will do so in a way that avoids the harm that would inevitably result if we allowed him to treat his feeling as the moral equivalent of Billy saying to him “I will kill you if you do not retreat.” It is possible that Billy is threatening his life, but it is also possible, and—given the facts—perhaps probable that Victor’s anxiety represents a false alarm. And if it does, then Billy has done nothing at all to forfeit his right to live.
Imagining Different Worlds
When supporters of SYG laws think about those laws, I suspect that they imagine cases that are very much like the first Bob-and-Vigo scenario, with the gun and the countdown. In such scenarios, whether expressly or by subtle implication, a menacing person has essentially demanded that people defer to his desire to own the street, requiring them to retreat on threat of death. In contrast, when opponents of SYG laws think about the laws, I believe that they imagine very few Bob-and-Vigo scenarios and very many Billy-and-Victor ones, where Billy is neither intending nor doing anything culpable, but Victor nonetheless honestly feels terrified and perceives a threat to his life.
The reason I myself oppose SYG laws is that I share the concern that in many cases, the fear that people experience—though real and aversive—may not correspond to a true threat, and ought therefore to be managed through retreat, wherever retreat is safe and feasible. In nature, arguably for similar reasons, “flight” is a far more common response to a perceived predatory threat than “fight” is. As a result, a hyper-vigilant perception of threats can be adaptive and need not result in bloodshed.
In the unusual event that Bob truly says, “I will kill you unless you leave the park immediately,” I might support Vigo’s decision to kill Bob on the spot, even if he could have safely retreated. If this were the upshot of an SYG law, I could see supporting it. Indeed, I doubt that any jury—in Florida or elsewhere—would vote to convict Vigo Victim for killing Bob Bully under those circumstances. But what SYG laws have apparently done instead—including, perhaps, in the case of George Zimmerman and Trayvon Martin—is to unleash lethal violence against innocent people—violence that could have easily been avoided with a safe retreat from the perceived source of danger.
[…] Justia Verdict […]
The Florida law includes the requirement, “reasonably believes that such force is necessary to prevent imminent death or great bodily harm”, “reasonably believes” and “necessary to prevent” have a much higher burden of proof than your examples suggest. What Vigo or Victor “believe” applies to a self defense claim at the full trial, for SYG a judge will apply the standard of a reasonable person.
Retreat doesn’t appear to be an issue with Zimmerman and Martin, only the prohibition within the SYG law against arrest without probable cause.
Stand Your Ground fails because it gives untrained civilians the right to kill anyone they identify as a threat. This means that it is open season on the mentally retarded, kids who wear non-conservative fashions, people suffering violent fits, or even a guy who has had 2 beers too many and is showing off too much.
The Duty to Retreat is followed up by the Necessity of Informing the Correct Authorities, who will then deal with Bob Bully (possibly correcting his medication so that he doesn’t go crazy in future).
I believe that if you have 2 beers to many, that’s your fault – take responsibilty for your drinks and dont be a tool. And again, I laugh, as if someone trained the criminal.
Mike, the issue here si the right to self defence – not the right to be a drunken idiot.
Any American should have the right to defend their home , person and property from any attacker by whatever means necessary.
I agree. But sometimes, some people feel that carrying a gun makes them powerful than they really are. The question here is where do you draw the line?
It is about time for Stand Your Ground, those who choose to victimize others they percieve as weak and unable, must be shown the light of individual worth, you choose to break the code that binds us all as a civilized society, you pay with your own existence, period.
I support the “stand your ground” and castle doctrine” laws. I also agree with some of the points you have brought up in this story. Although I do not care for having laws that are long winded, I feel that the above mentioned laws are the kind that should have extra language put in them. And by that, I mean they should include the examples you listed. The examples could be included as guidelines for when the laws would apply (protect a person) and when they would not apply (leave a person open for prosecution). I feel the examples would be good to help clarify what actions are acceptable in general “fight or flee” situations.
Since when does some liberal self rightous moderator decide whether a comment submitted in good faith, is acceptable for everyone else. What’s the point in commenting if all comments are judged by their willingness to agree with the overall slant of an article ? Either print my original comment, or I will simply discontinue following Justia.
Interesting piece. But I would point out that many, if not all, SYG laws are predicated on the understanding of “reasonable force”.
Except in the most extraordinary cases, people intuitively understand what is or is not reasonable, and coupled with the natural desire of most to flee rather than fight (as you pointed out), the SYG laws, in and of themselves, do not make the standard individual any more likely to use force than they otherwise would be.
It’s true that SYG advocates consider the “overt threat” scenario more than the passive possibility. But it’s a matter of numbers; one rarely is shot for ‘looking’ threatening when compared with those who are ‘acting’ threatening.
In the aggregate, people, even if fearfull, still recognize the difference between real and percieved threats and likewise use reasonable measures to counter. SYG doesn’t change that.
Professor Colb’s analysis, like that of Professor Volokh and everyone else who offers any favorable view of ‘Stand Your Ground’ laws, seems to be a grandchild of Malcolm X’s ‘by any means necessary’ doctrine.
In fact, given the long and variegated history of anti-black racism in the United States, including official treatment like the US government identifying black male syphilis sufferers so the federal government could catalog the progress of the disease without even offering legitimate medical care, every black person in the US has a reasonable expectation of severe bodily harm from any interaction with a non-black person, be it a government official or private person. Yet, if a black person so much as speaks like someone who will seize upon the defense offered in ‘Stand Your Ground’ laws, like Malcolm X did, that black person can expect to be arrested for that speech and imprisoned for a lengthy period, and maybe even tried for the speech before sentencing.
If Malcolm X posed a threat to black and white society with his ‘by any means necessary’ doctrine, then so do ‘Stand Your Ground’ laws. Analysis like Professors Colb’s and Volokh’s reduces to little more than specious casuistry.
Please Please protect the thugs. Remember as a good victim you have the duty to retreat. Run for your life! As the thug starts beating you please remember not to hurt him and explain you are trying to retreat and don’t want a lawsuit. If nothing else wave this stupid article in front of him as he trys to take your life. Remember – thugs are only being thugs and need to be protected at all costs. Remember – try to negotiate with the thug. If you can’t and you must surrender your life – well, at least you tried – LOL! What utter nonsense!
The purposes to black and white, simple scenarios is to illustrate a point. The need to do this, I well understand. However in the 2nd scenario Vigo (representing the individual and society) wouldn’t retreat. He would stay over 10 feet away and call the CDC whereupon Bob would be imprisoned (quarantined) for life or until cured. This scenario offers an implication that Bob #2 is free to roam forever, and, but for Vigo’s hasty judgment of him, Bob #1 should be as well. Which leads to the other issue in black and white scenarios: they exist simply to lead your reader to uncritically accept your point. They take all reality out of the scenario. It is my understand that SYG laws exist not so that Vigo may pass hasty judgment on Bob, but so that a jury may not past hasty judgment on Vigo. That he is given his opportunity to explain the reasonableness of his actions and not be Monday morning Quarterbacked by a very safe jury. The law needs to be more complex than See Vigo Run. I would have appreciated it if your argument could reflect and even explore that complexity.
Furthermore, and it is not my intent to attack you here, but it seems clear from this article you do not have any sort of higher learning of psychology. The concept of fight or flight as you put forth in this article are the high school version, for lack of any other concise metaphor. If you insist upon using psychology as a justification for your ideas (ideals), prudence suggests continuing education. I recommend (to everyone on the planet) you start with Gavin DeBeckers “The Gift of Fear” to have a far better understanding of fear and crime. He has spent a lifetime studying it.
So why did Palm Bondie tell the Sanford police dept not to arrest Zimmerman? Answer : to protect the SYG law. (I could be the only one who knew that)
So why did the NRA want SYG passed? To expand the legal use of fireams in Florida as requesed by so many NRA members who got charged with a crime when they used a gun when not faced with an armed threat. And NRA members have a long history of anger towards prosecutors. The SYG law fixed that problem.
That’s why SYG is basically an anti-prosecutor law. Its all so simple.
Sherry, Any common sense person agrees with you in your opposition to SYG. It is just too bad that the aggressors don’t. Every time someone backs down for the aggressors they feel slightly more bold. Unfortunately the aggressors of this world do not take backing down as a sign of regard for life; they take it as a sign of abject weakness.
A very good call, I agree with most it what has been said. There isn’t anything wrong with the law, it is the idiot that goes off half cocked as Zim did and kills some innocent person, innocent at that point and time. Leave the law in place, what happened would or will happen regardless of the law, it happens every minute of the day in some place.
Imagine the described meeting between Bob Bully and Vigo, but as seen on a security camera, which is the only witness other than the principals, and not clearly showing Bob’s lips. Bob approaches Vigo, speaks briefly to him, and then Vigo pulls out a gun and shoots Bob dead. Interviewed afterwards, Vigo recounts the conversation as described. What is the verdict then?
[…] law professor Sherry F. Colb has written an insightful article on “Stand Your Ground” (SYG) Laws. To engage in an informed discussion of SYG laws, it is useful first to understand the “duty […]
The extension of SYG somewhat indirectly referenced in this article is that cowards will almost always feel terrified for their lives and according to SYG, then always be fully justified in killing the people they perceive as threats.
However, I still like Bill Maher’s response that his lawn would be littered with dead Jehovah’s Witnesses. Hey, I also find them threatening. (Well, SYG is sloppy enough to equate annoying with threatening, eh?)
[…] a recent article on Justica.com, Cornell Law Professor Sherry F. Colb presented an interesting and informative analysis of the […]
I notice that no facts in the Trayvon/Zimmerman case were cited in your discussion. If Bob Bully, in your example, had not said “I’m going to shoot you in 5 seconds,” but had instead taken out the gun and proceeded to repeatedly pistol-whip Vigo in the public park, what is your verdict? The apparent facts in this case argue for that kind of scenario.
I notice that no facts in the Trayvon/Zimmerman case were cited in your discussion. If Bob Bully, in your example, had not said “I’m going to shoot you in 5 seconds,” but had instead taken out the gun and proceeded to repeatedly pistol-whip Vigo in the public park, what is your verdict? The apparent facts in this case argue for that kind of scenario.
I notice that no facts in the Trayvon/Zimmerman case were cited in your discussion. If Bob Bully, in your example, had not said “I’m going to shoot you in 5 seconds,” but had instead taken out the gun and proceeded to repeatedly pistol-whip Vigo in the public park, what is your verdict? The apparent facts in this case argue for that kind of scenario.
Laws like SYG laws and other laws such as SYG are unnecessary. All that is needed is common sense about the situation. SYG law is permission to take a life unnecessary that cannot be replaced. It encourages ppl like Zimmerman to be trigger happy and hide behind such unncessary laws.
Laws like SYG laws and other laws such as SYG are unnecessary. All that is needed is common sense about the situation. SYG law is permission to take a life unnecessary that cannot be replaced. It encourages ppl like Zimmerman to be trigger happy and hide behind such unncessary laws.
Laws like SYG laws and other laws such as SYG are unnecessary. All that is needed is common sense about the situation. SYG law is permission to take a life unnecessary that cannot be replaced. It encourages ppl like Zimmerman to be trigger happy and hide behind such unncessary laws.
Don’t forget that Zimmerman was the aggressor!
Don’t forget that Zimmerman was the aggressor!
Don’t forget that Zimmerman was the aggressor!
I like the law and believe it will finally set things on even terms. Here in Chicago, we’ve had a no-gun law for almost 30 years. This only allows the criminals to own them, as f that’s the right thing to do.
I remember when I lived in Milwaukee, and the open carry law passed there – violent crime dropped 98% in the first weekend. I also remember living in Indiana, where w conceal law went into effect. One shoot-out in the local mall parking lot between a mother and three thugs trying to jack her car while her kids were in it – was all it took and the word on the street spread quickly.
The fact is that thoes people looking to harm you are not going to follow the law and in this case, although we all wish for a peaceful society where this shit never happens – it does.
So long as it’s equal, force to force, power to power. I’m ok with this. What I’m notok with is someone shooting another because they exchange words outside a bar or mall. That’s over the line and not self-defence. The threat needs to be clearly present and offer no other opportunity for either party.
A thug yelling shit at you, drunk and stupid needs to be handled differently than a thug stealing your car, with your kids in it.
However, if that drunk guy gets more agressive and the situation escilates, then yes, use enough power and force to stop the threat – although this does not always mean taking a life.
There is something that is being missed here though, the responsibility is so too often put back on the state, where it clearly needs to be put on the people. Each person makes decisions – this one made a decision to hold a lady hostage, this one made a decision to drink too much and be an asshole, There was no state involvement in making thoes decisions.
Stop being a society that blames the state for everything and start taking responsibility for yourself. Don’t be a drunk asshole, or i’ll knock you out cold – and don’t attack my wife in her car at the mall with your gun – or I’ll shoot back.
The weakness in Bob Bully’s arguments is that although they accurately capture the literal meaning of the statue <–TYPO !!
Duty to Retreat? What if the aggressor runs faster than you?
Something is wrong with SYG because of something someone wrote on a comment board? It’s a shame that some people will find anything to prove their point no matter how irrelevant it has to do with the subject.
I believe that the perspective of the author represents a rather paternalistic view of the role of government, e.g. that ordinary citizens cannot be trusted with their own liberty. A society that values liberty becomes decidedly less free when its principals, all of us, are reduced to abdicating our rational decision-making in order to avoid mistakes. Mistakes are a fact of our lives and, though we strive to reduce them and, in some forms such as this, they are tragic, we remain imperfect.
In fact, it is probably best, when Victor is uncertain of the intentions of Billy, that he retreat and avoid the decision, but that is his decision. If his decision to stand his ground fails to impress a jury that it is the act of the proverbial “reasonable man”, then he will suffer the consequences, likely a conviction of some species of homicide and a sentence that reflects the jury’s or judge’s assessment of his culpability. That risk is what gives us pause and informs our decisions. Laws have never been able, nor intended, to prescribe behavior for every variation of circumstance.
The virtue of such a “stand your ground” defense is the deterrent effect that it has upon criminals; and the evil in the retreat statutes is that they embolden criminals and breed more of the same. The differences between the way in which we deal with such threats and the way they are dealt with by animals are both the reason and the dignity of humans.