By David Kopel
Media coverage of Floridaâ€™s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Floridaâ€™s â€œStand your groundâ€ law, that law is legally irrelevant to case. So letâ€™s take a look at what the Florida laws actually say.
Fla. Stat. Â§ 776.012. Use of force in defense of person
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the otherâ€™s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
So the general rule is that deadly force may be used only to â€œimminent death or great bodily harm,â€ or â€œthe imminent commission of a forcible felony.â€ A person may only use deadly force if he â€œreasonably believesâ€ that the aforesaid factual conditions exist. These standards are the norm throughout the United States.
Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Letâ€™s call this the â€œM narrative.â€ In Zimmermanâ€™s account, he followed Martin, Â caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the Â pavement. Letâ€™s call this the â€œZ narrative.â€
I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neitherÂ the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant. Simply put, everyone who has claimed that Floridaâ€™s retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.
The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmermanâ€™s firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.
Under Florida law, there is another set of circumstances in which deadly force is permitted is:
(2) Under those circumstances permitted pursuant toÂ s. 776.013
The cross-references is to a statute involving self-defense in oneâ€™s home or automobile. Neither of these is relevant to the Martin-Zimmerman case.
Fla. Stat. Â§ 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that personâ€™s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
The home/automobile law allows use of deadly force against intruders who unlawfully enter the victimâ€™s home or occupied automobile. The law makes specific exceptions if the intruder has a legal right to be there, or is lawfully exercising child custody rights, or if the person in the home/automobile is engaged in illegal activity, or if the intruder is law enforcement officer who has identified himself as such.
Again, the home/automobile provisions have no relevance to Martin/Zimmerman case.
Next is the issue of retreat:
(3) 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.
Again, this is irrelevant to the Martin/Zimmerman case. A duty to retreat, if it existed, would apply to a crime victim, who would be required to retreat than to use force in self-defense, if retreat were feasible. In the M version of the case, Zimmerman stalked and shot Martin; Martin never attacked Zimmerman. Accordingly, Zimmerman never had any lawful right of self-defense. Only Martin had violently and feloniously attacked Zimmerman would there be an issue (in any jurisdiction) as to whether Zimmerman had a duty to retreat. In the Z version of the case, there was such an attack, but it was impossible for Zimmerman to retreat. Thus, duty to retreat law has no bearing on the case.
Historically, American states have been split as to whether there is ever a duty to retreat, and under what circumstances. Richard Maxwell Brownâ€™s excellent book No Duty to Retreat: Violence and Values in American History and Society (1994) details the strong trend in American courts in the late 19th and early 20th centuries against a duty of retreat. The U.S. Supreme Court said the same thing in Beard v. United States, 158 U.S. 550 (1895):
[Beard] was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.
Beard involved a victim on his own land. The Court unanimously re-affirmed Beardâ€˜s no-retreat rule in Alberty v. U.S., 162 U.S. 499 (1896), which involved a person in his own home. Allen v. United States, 164 U.S. 493, 502 (1896), involved a victim who was on someone elseâ€™s property; there, the Court upheld a jury instruction in favor of a duty to retreat.
Finally, in Brown v. United States, 256 U.S. 335 (1921), Justice Holmes writing for a unanimous Court that included Louis Brandeis (the greatest Progressive jurist), explained:
Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. [cite to Beard.] Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068. Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106.
It is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty. [Defendant Brown was an employee at a federal navy yard, where Hermis attacked him with aÂ knife.]
The above cases all involved federal common law, applied to the federal Territories and to federal property. States, of course, are free to chart their own course. Judges can revise the common law, and legislatures can enact statutes which differ from the common law. Under the English common law of Blackstone, there was no duty to retreat in the home, and no duty to retreat when the use of force was necessary to commit a forcible felony, such as arson. Retreat was required, if practicable, in cases â€œof a sudden brawl or quarrelâ€ outside the home.Â See alsoÂ Hawkins, Pleas of the Crown, sects. 106-07; Bishopâ€™s Criminal Law, sect. 850 (most influential American criminal law treatise of latter 19th century; person who is victim of murderous attack has no duty to retreat).
In sum, Floridaâ€™s non-retreat rule is not some 21st century novelty. It is consistent with a long tradition of American law, in which different states have had a variety of rules about when, if ever, retreat might be required.
Even among the most restrictive states, such as New York, retreat in safety is not required before using deadly force in the home; to prevent a burglary (if the person reasonably believes that the criminal would use force to thwart the personâ€™s termination of the burglary) ; to prevent a robbery ; or to prevent a kidnapping, forcible rape, or other forcible criminal sexual attack. Â Thus, whether you are in Lake Placid, New York, or Lake Placid, Florida, and someone attempts to rob you when you are walking down the street, you have no duty to retreat before using deadly force to thwart the robbery.
Back to the Florida statute, which then provides some additional legal standards for home/automobile defense:
Â (4) A person who unlawfully and by force enters or attempts to enter a personâ€™s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(5) As used in this section, the term:
(a) â€œDwellingâ€ means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) â€œResidenceâ€ means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) â€œVehicleâ€ means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
The next part of the Florida Code concerns â€œUse of force in defense of others.â€ Fla. Stat. Â§ 776.031:
A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the otherâ€™s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
Deadly force is permitted only when â€œreasonablyâ€ believed â€œnecessary to prevent the imminent commission of a forcible felony.â€ The no-retreat rule is the same as for self-defense.
We have now covered the entire relevant sections of Floridaâ€™s self-defense statutes. Not one word of them provides the slightest legal protection to Zimmerman, if the M version of the events is true. The grand jury will decide whether there is plausible evidence in support of the M theory.
Florida law provides some protections for persons who have lawfully used force against a criminal attack.
Fla. Stat. Â§ 776.032. Immunity from criminal prosecution and civil action for justifiable use of force
(1) A person who uses force as permitted inÂ s. 776.012 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term â€œcriminal prosecutionâ€ includes arresting, detaining in custody, and charging or prosecuting the defendant.
So if a person used force lawfully in self-defense against a criminal attacker, then his actions are justified (not merely excused), and he may not be arrested, criminally prosecuted or sued. It seems obvious that persons who have obeyed the law should not be arrested or prosecuted. Nor should criminals or a criminalâ€™s relatives be able to harass the victim by filing a civil suit.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
The Sanford police said this is why they did not arrest Zimmerman: they did not have probable cause to believe that he had broken the law. In fact, the statute does not change the law, but it apparently is effective at reminding law enforcement officers of the standard they are required to obey. Regarding arrests, the United States Constitution requires that â€œThe right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . persons . . . to be seized.â€ As judicially interpreted, the Fourth Amendment does not require a warrant for some arrests, but the probable cause requirement remains enforceable. The normal rule in American law is that a police officer must have â€œprobable causeâ€ in order to arrest someone.
(3) The court shall award reasonable attorneyâ€™s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
So if a lawful defender is sued, then the court will attorneyâ€™s fees and costs to the victim of the improper suit, who was, of course, also the crime victim.
Finally, Florida law guaranteeing self-defense rights express excludes anyone who â€œInitially provokes the use of force against himself or herself.â€ Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights Â if:
(2)(a)â€ƒSuch force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b)â€ƒIn good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
The only way that this statute would be relevant would be if Zimmerman initially attacked Martin, and then withdrew. Zimmerman has made no such claim, nor does the M narrative.
In sum: there is not a shred of support for the claim that Florida law protects, or has protected Zimmerman, if he unlawfully attacked Martin. If Zimmermanâ€™s story is true (Martin attacked him, putting him in imminent peril of grave bodily injury, with no opportunity to retreat), then Zimmermanâ€™s self-defense claim would be valid under the laws of Florida, New York, or any other Anglo-American jurisdiction. The particular legal changes resulting from Floridaâ€™s â€œStand Your Groundâ€ and â€œCastle Doctrineâ€ laws (deadly force in the home/automobile; no duty to retreat in public places; Fourth Amendment arrest standard affirmation; protection from civil suits) simply have nothing to do with whether Zimmermanâ€™s actions were or were not lawful.