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.