STAND YOUR GROUND ON YOUR BACK: A CRITICAL ANALYSIS OF FLORIDA’S STAND
YOUR GROUND LAW AND THE ZIMMERMAN TRIAL
BY: STEPHEN NICHOLS
I. INTRODUCTION
On the night of February 26th at 7:16 and fifty-five seconds, twenty-eight yearold George Zimmerman shot seventeen year-old Trayvon Martin in the chest. In this
modern version of the shot heard around the world, many quickly started picking sides.
Some chose sides to score political points. Some chose sides out of a sense of justice.
Arguably, every media outlet began to pick sides in an attempt to boost ratings. In this
mad dash to make sense out of this tragic situation, as the dust settled, many people
speculated on whether the stand your ground law was going to stand between Trayvon
Martin and justice or allow the acquittal of an innocent man acting in self-defense. The
spotlight was clearly on the hotly debated “stand your ground” law. The problem is, the
Zimmerman case had little, if anything, to do with “stand your ground.”
Specifically, the Zimmerman case has nothing to do with the “stand your ground”
law because the law has never imposed a duty to retreat when the actor is pinned on his
back. What follows is an analysis of self-defense, including how stand your ground
modifies ones duty to retreat, the facts established during the Zimmerman trial, how the
law applies to those facts and the public reaction to the Zimmerman trial and verdict. This
analysis consists of three sections. Section one is an analysis of common law self-defense
including exactly how “stand your ground” changes ones’ duty to retreat. Section two
explains the facts established by the Zimmerman trial. The final section explains how
1 self-defense and stand your ground resulted in Zimmerman’s not guilty verdict as well as
the public response to the trial both before and after.
II. THE TRANSITION FROM SELF DEFENSE TO STAND YOUR GROUND
A. Common Law Self-Defense
More than two centuries ago, Blackstone explained that some homicide is
justified or excusable for various reasons.1 Amongst those ancient ideas is the idea that
homicide on account of “self-preservation” is excusable.2 This doctrine of excusable
homicide due to self-preservation became known as the law of self-defense. 3
Consequently, self-defense is a doctrine that legally exonerates one for the taking of a
human life.4 Clearly exonerating someone for taking another’s life must not be taken
lightly. This is why the law of self-defense is commonly viewed as a law of necessity.5
This means that if one is to claim self-defense for the homicide of another, that person
must have actually needed to act in self-preservation. 6 Commonly, for self-defense to
meet the necessity requirement, the actor must reasonably believe he is faced with a
threat of death or serious bodily injury. 7 Moreover, this threat must be imminent and the
fear of death or harm must be either actual or apparent.8 This is to say that sometimes it is
still excusable to commit homicide if you get it wrong. For the fear to be apparent, it does
not have to be real. 9 The threat just must appear real. 10 Like many things within the law,
1
United States v Peterson, 483 F.2d 1222, 1228 (D.C. Cir. 1973).
2
Id. at 1229
3
Id.
4
Id.
5
Id.
6
Id.
7
People v. Goetz, 497 N.E.2d 41, 51 (N.Y. 1986).
8
Id.
9
Id.
2 the hypothetical reasonable person determines if the actor’s fear was reasonable. That is,
if a reasonable person would have feared death or serious bodily injury when placed in
the actor’s shoes, the homicide may be legally excusable. 11
However, traditional self-defense requires retreat.12 The doctrine of retreat adds
an additional layer of necessity onto a self-defense analysis. If the actor, when faced with
or in the midst of an actual or apparent threat has the ability to retreat, then they must do
so in order to claim self-defense’s shelter. 13 Nonetheless, the common law duty to retreat
does not require absolute avoidance of danger. Retreat does not mean that one must
always run away or steer clear of danger. It means that if the actor knows it is possible to
retreat with complete safely after a struggle is initiated or imminent, then one must
attempt to do so or lose the right to claim self-defense. 14 Note that the actor is only
required to retreat when they “know” that they can retreat with “complete safety.” 15
Moreover, it is also important to understand why retreat and avoidance are so different.
The primary reason they are different turns on exactly when a duty to retreat attaches. In
fact, the duty to retreat does not attach until the person who would have to respond with
force develops the reasonable fear of death or serious bodily harm. 16 This is a difficult
concept to understand because, in various situations, the duty to retreat can attach at
different times. For instance, the duty to retreat can attach quickly when someone is
10
Id.
11
People v. Goetz, 497 N.E.2d 41, 51 (N.Y. 1986).
12
JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 502 (Thompson
West, 4th ed. 2007).
13
Id.
14
MODEL PENAL CODE § 3.04(2)(b)(ii)
15
Id.
16
DRESSLER, supra note 12, at 502.
3 attacked spontaneously. 17 In a sudden quarrel-type situation, the duty to retreat could
occur rapidly because the actor could not develop a reasonable fear until they can realize
what is going on. In this situation, it is difficult to say exactly where a fear becomes
reasonable. 18 Consequently, it becomes difficult to say when or even if a duty to retreat
ever attaches. 19 Justice Holmes explained, “Detached reflection cannot be demanded in
the presence of an uplifted knife.” 20 In these sudden quarrel situations, a duty may never
attach because the doctrine of retreat has never imposed a duty to retreat when it is
impossible or unsafe to do so. 21
The only clear scenario where a duty to retreat attaches occurs when a person
narrowly avoids danger or could easily avoid a real danger, but instead arms themselves
and reenters the situation. 22 Imagine a shootout between groups of individuals in which
the actor is able to escape. 23 Once the actor escapes, instead of staying in safety, he or
she procures a weapon and returns to the shootout. 24 Here, a reasonable person would
have feared death or serious injury during the initial altercation, so the retreat is the only
reasonable action. 25 Consequently, reentering the dangerous situation is not reasonable
and is therefore not excusable. 26 Note that the duty to retreat is only acquired after the
17
Id.
18
DRESSLER, supra note 12, at 502.
19
Id.
20
Id.
21
Id.
22
See Laney v. United States, 294 F. 412, 414 (D.C. Cir. 1923); See also Rowe v. United
States, 370 F.2d 240, 246 (D.C. Cir. 1966).
23
Id.
24
Id.
25
Id.
26
Id.
4 fear of death or harm has become real or at least appears real. This is why avoidance of a
chance of danger has no place in the doctrine of retreat and self-defense.
Moreover, the shelter of self-defense is not available to those whose own bad
actions create the situation. This was true and still is true when the defendant’s unlawful
act creates the necessity to kill.27 And throughout history, a necessity to kill was created
by an unlawful act of aggression or provocation.28 At common law, aggression was
defined as “an unlawful act reasonably calculated to produce an array foreboding
injurious or fatal consequences.”29 However, provocation is much less clearly defined.
While a few cases and jurisdictions allow for non-physical provocation, most
jurisdictions interpret provocation as the “use or threat of force.” 30 Consequently,
provocation and aggression are practically synonymous. Nonetheless, provocation or
aggression must rise to more than an annoyance in order to void one’s ability to claim
self-defense. The show of force must virtually start the confrontation. The actor must
throw the first punch, pull a gun on the victim, or take the first shot. The actor must
practically invite the struggle that would create the need to kill. For instance, in United
States v Peterson, the defendant entered his home and returned with a firearm drawn. 31
He returned just before the decedent was about to leave, and with his gun drawn, he
goaded the decedent into entering his property. 32 When the decedent crossed the
proverbial line in the sand, he claims he was forced to shoot. 33 This is an example where
27
United States v Peterson 483 F.2d 1222, 1233 (D.C. Cir. 1973).
28
Id.
29
Id.
30
Gibbs v. State, 789 So. 2d 443, 445 (Fla. Dist. Ct. App. 4th Dist. 2001).
31
Id.
32
Id.
33
Id.
5 a defendant’s unlawful actions negate his ability to claim self-defense. 34 Even in this
instance, the question was an issue of fact best decided by the jury. Moreover, the
Peterson court reiterated that a defendant may still “claim self defense if he arms himself
in order to carry out his normal activities, even if he realize that danger may await him.”35
However, the difference is that in Peterson the defendant armed himself to stir up
trouble.36 Consequently, being armed alone does not constitute provocation or aggression
without further facts establishing that the defendant actually invited the altercation.
The bottom line is that self-defense and a duty to retreat have always had some
limitations. These limitations played off of the idea that, for homicide to be justified, it
must be necessary. However, jurisdictions differ drastically in their ideas of exactly when
a killing is justified. How does a state balance a person’s right to self-defense, while
protecting the lives of others? When faced with this question, states commonly focus on
when to or whether to impose a duty to retreat.
There are three primary types of duties to retreat. Some jurisdictions require a
person faced with aggression to either “retreat to the wall,” allow the person to stand their
ground, or take a middle ground approach.37 “Retreat to the wall” jurisdictions require
that a person faced with aggression to retreat until it is impossible to do so.38 The idea is
that before a life is taken, every effort must be made to escape. 39 Middle ground
jurisdictions require retreat either based on the safety at which one could retreat, or the
34
Id.
35
Id.
36
Id.
37
Denise M. Drake, Comment: The Castle Doctrine: An Expanding Right to Stand Your
Ground, 39 ST. MARY'S L. J. 573, 580-86 (2008).
38
Id.
39
Id.
6 location of the struggle.40 The most common middle ground statute requires retreat unless
faced with a threat while at home.41 This is based on a common law idea called the
“castle doctrine.”42 Castle doctrine follows the logic that a man’s home is his castle.43
This provides the idea that it is justified to defend one’s home by any means necessary.44
Other states have done away with the duty to retreat entirely. States have done so by
expressly adding “no duty to retreat” language to their self-defense statute. 45 This
modification to traditional self-defense is commonly referred to as a “stand your ground”
or “true man” law.46 However, while stand your ground laws eliminate any duty to retreat
when faced with force or a threat of force, these statutes commonly deny this right to the
first aggressor—a person provoking the struggle or a person who is engaged in an illegal
activity.47 Consequently, stand your ground laws allow an actor to meet force with force
with no affirmative duty to retreat so long as they either did not initiate the force, or they
are preventing the commission of a crime.
B. The Right to Stand Your Ground in Florida
Florida is the most notable “stand your ground” jurisdiction. This is not because
of the publicity of the Zimmerman trial. Florida is important in this argument because
they have perhaps unintentionally become a testing ground for the law.48 Moreover,
Florida’s stand your ground law has become the model for other stand your ground laws
40
Id.
41
Id.
42
Id.
43
Id.
44
Id.
45
FLA. STAT. § 776.012 (2005).
46
Joshua Dressler, Cases and Materials On Criminal Law 502 (Thompson West, 4th ed.
2007).
47
§ 776.012
48
DRESSLER, supra note 12, at 502.
7 that are being fought over and have been implemented throughout the nation.49 This is
important because Florida has taken two additional steps that further emboldened
Florida’s self-defense law. On April 26th 2005, Governor Jeb Bush signed a series of
new self-defense laws. One of Florida’s new laws states:
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. 50
This statute allows anyone faced with a threat in any place they can legally be to
stand their ground, without any duty to retreat. Furthermore, it allows the use of deadly
force to prevent death or great bodily harm. This statute also eliminates the requirement
that the threat be imminent.51 Florida Statute 776.012(1) allows for deadly force with no
duty to retreat anywhere, even when the actor is engaged in an unlawful activity.52
However, 776.012(1) requires that the threat of death be imminent.53 By contrast, Florida
Statute 776.013(3) requires a law-abiding actor and a lawful place, yet removes the
requirement that the threat of death or great bodily harm be imminent.54 Also passed was
an additional law similar to the castle doctrine. This new law creates a rebuttable
presumption of reasonable fear when a homicide takes place on one’s property.55 This
trio of new laws adds and takes away protection based on the actions of the defendant and
49
Id.
50
§ 776.012.
51
Little v. State, 111 So. 3d 214, 221 (Fla. Dist. Ct. App. 2d Dist. 2013).
52
Id.
53
Id.
54
Id.
55
FLA. STAT. § 776.013 (2005).
8 the location of the act. 56 The ultimate protection is awarded when the actor is at home. 57
Yet, when the actor is in a lawful place and is acting lawfully, they are still not required
to retreat nor must the threat they face be imminent.58 Even an unlawful actor in an
unlawful place is allowed to act in self-defense with no duty to retreat so long as they did
not initiate the struggle. 59 However, for this actor the threat of death or harm must be
imminent. 60 However, while these new laws entirely eliminate ones duty to retreat in
Florida, these laws still maintain some of the traditional limitations to a self-defense
claim.
Specifically, none of these laws allow a self-defense claim following the
defendant’s acts of aggression or provocation. 61
II. THE ZIMMERMAN TRIAL
A. The Un-Refuted Facts
On night of February 26th, twenty-eight year-old George Zimmerman drove away
from his home.62 Zimmerman was legally caring a concealed pistol in a holster on his
right hip. 63 Before, exiting his Twin Lakes subdivision, he saw seventeen year-old
Trayvon Martin walking through the rain wearing a hooded sweatshirt over his head.64
Knowing that there have been numerous break-ins in his neighborhood, Zimmerman
56
Little v. State, 111 So. 3d 214, 221 (Fla. Dist. Ct. App. 2d Dist. 2013).
57
Id.
58
Id.
59
Id.
60
Id.
61
FLA. STAT. § 776.041 (2005).
62 Trayvon
Martin Shooting Timeline, USA TODAY (April 9, 2012),
http://usatoday30.usatoday.com/news/nation/story/2012-04-09/trayvon-martin-timelineflorida-shooting/54129274/1. 63
Id.
64
Id.
9 perceived Martin’s behavior as suspicious.65 To Zimmerman, this suspicion necessitated
calling the Sanford, Florida Police non-emergency number. 66 While on the phone,
Zimmerman explained why he was suspicious of Martin. 67 He also was recorded saying,
“These assholes, they always get away” and murmuring the statement “Fucking punks.”68
He followed Martin down two streets with his vehicle and stopped when Martin entered
an area off of the road. Zimmerman explained that Martin went in between the rear of
two apartment homes. 69 Immediately after explaining that, Martin began to run. 70
Zimmerman exited his car.71 Zimmerman then explained that he had lost sight of Martin.
72
Shortly thereafter, Zimmerman was asked whether he was following Martin. 73 He said
“Yeah.” The non-emergency operator then explained, “We don’t need you to do that.” 74
Zimmerman responded, “Okay.” 75 After being asked if he still wanted an officer to
come, Zimmerman explained that he still wanted an officer to respond and that he would
meet the officer next to his vehicle. 76 Shortly thereafter, he asked to have the officer call
him, and he will explain where he is. 77 A short time after hanging up the phone, a
65
Trayvon Martin 911 Calls Released, CLICK ORLANDO WKMG LOCAL 6 (Mar. 17,
2012),
http://www.clickorlando.com/news/GRAPHIC-Trayvon-Martin-911-callsreleased/-/1637132/9450044/-/6m827cz/-/index.html.
66
Id.
67
Id.
68
Id.
69
Id.
70
Id.
71
Id.
72
Id.
73
Id.
74
Id.
75
Id.
76
Id.
77
Trayvon Martin 911 Calls Released, CLICK ORLANDO WKMG LOCAL 6 (Mar. 17,
2012),
http://www.clickorlando.com/news/GRAPHIC-Trayvon-Martin-911-callsreleased/-/1637132/9450044/-/6m827cz/-/index.html.
10 struggle is heard by multiple witnesses. 78 Multiple 911 calls capture an unidentified
person yelling for help. 79 One witness, John Goode, saw some of the struggle in the dark
courtyard and later explained that he saw the darker-skinned person on top and the
lighter-skinned person on the bottom. 80 Shortly thereafter, at 7:16 and fifty-five seconds,
the pleas for help are interrupted by a gun shot. 81 Zimmerman shot Martin in the chest. 82
Later investigation revealed that, at the time Martin was shot, the gun was very close to
his hooded sweatshirt, but the gun was not pressed close to his skin. 83 This was indicated
by stripping on the sweatshirt, but not on his skin. 84 Shortly after the shot, another
neighbor, Selma Mora, came out of her house and later explained that she saw the larger
person on top of the smaller person. 85
At 7:17, Officer Smith arrived at the scene. 86 Zimmerman told Officer Smith that
he shot Martin and that he was armed. 87 Officer Smith secured Zimmerman’s weapon
78
Kerry Sanders, Who’s Screaming For Help on Martin 911 Tape?, TODAY (June 28,
2012), http://www.today.com/video/today/47992187#47992187.
79
Id.
80
Witness Jonathan Good (W6) Files, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/witnesses/witness-6-files-trayvon-martingeorge-zimmerman-case/.
81
Erin Donaghue, George Zimmerman Trial: Trayvon Martin Was On Top Of
Zimmerman When Teen Was Shot, Gunshot Wound Expert Testifies, CBS NEWS
CRIMESIDER (July 10, 2013), http://www.cbsnews.com/news/george-zimmerman-trialtrayvon-martin-was-on-top-of-zimmerman-when-teen-was-shot-gunshot-wound-experttestifies/.
82
Id.
83
Id.
84
Id.
85
Witness Selma Mora (W16) Files, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/witnesses/witness-16-files-trayvon-martingeorge-zimmerman-case/.
86
Officer Timothy Smith (Sanford PD), AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/police-department/officer-timothy-smithsanford-pd/.
87
Id.
11 and cuffed him. 88 While in custody at the scene, a neighbor called Zimmerman’s wife
and explained, “Your husband has been involved in a shooting.” 89 Immediately after,
Zimmerman said “Tell her I shot someone.” 90
Officer Ayala, the second officer to arrive, immediately attempted to revive
Martin. 91 However, Martin was unresponsive. 92 Martin was declared dead at 7:30. 93
The body of Martin was found face down in the grass with his right hand at his
side and his left hand completely under his body. 94 Officer Smith observed that the back
of Zimmerman’s jacket and jeans were wet and covered in grass. 95 He also observed that
Zimmerman was bleeding from his nose and the back of his head. 96 Martin’s body was
found a few yards from a T-intersection of sidewalk in-between the rear of two rows of
apartments. 97 Zimmerman’s flashlight was very close to that intersection. 98 Martin’s
phone was found near his body, but it was damaged. 99 Afterwards, phone records
88
Id.
89
Witness Jonathan Manalo (W13) Files, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/witnesses/witness-13-files-trayvon-martingeorge-zimmerman-case/.
90
Id.
91
Officer Ricardo Ayala (Sanford PD), AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/police-department/officer-ricardo-ayalasanford-pd/.
92
Id.
93
Id.
94
Officer Timothy Smith (Sanford PD), AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/police-department/officer-timothy-smithsanford-pd/.
95
Id.
96
Id.
97
Sgt. Anthony Raimondo (Sanford PD), AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/police-department/sgt-anthony-raimondo-spd/.
98
Trayvon Martin/George Zimmerman Case Evidence Photos, AXIOM AMNESIA (Jan. 9,
2014),
http://trayvon.axiomamnesia.com/trayvon-zimmerman-case-photos/evidencephotos/.
99
Id.
12 revealed that leading up to the struggle Martin was talking on the phone to his friend
Rachel Jeantel.100
Zimmerman submitted to multiple rounds of questioning, and the next morning he
performed a videotaped walkthrough of the previous night’s activities. 101 A photograph
taken at the scene shows Zimmerman, bleeding from what appears to be the tip and/or
bridge of his nose. 102 More photos were taken of Zimmerman at the police station about
forty-five minutes later. 103 The photos were taken after Zimmerman was cleaned up and
cleared by the paramedics at the scene. 104 One photo shows two small cuts on
Zimmerman’s nose. 105 Another picture shows approximately three cuts and blood
dripping downwards from the back of his head. 106 Multiple photos of Zimmerman’s
hands show them clean and absent of any wounds. 107 Aside from the gunshot wound to
100
See Witness Rachel ‘Dee Dee’ Jeantel (W8) Files, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/witnesses/witness-8-files-trayvon-martingeorge-zimmerman-case/. In her description of their conversation, she explained that
Martin said he was being watched and followed by a “creepy ass cracker.” She also said
that she told him to run home. She said that she heard the initiation of the struggle and
heard Martin say “Why are you following me for?” Then she claims she heard a “hard
breathing man” say to Martin “What you doing around here?” She then heard a bump
and the sound of wet grass and someone saying “Get off, get off.” Then she claims the
phone shut off. She called back but there was no answer.
101
George Zimmerman Police Video Statements, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/video/george-zimmerman-police-video-statements/.
102
Trayvon Martin/George Zimmerman Case Evidence Photos, supra note 98.
103
Witness Dr. Valerie Rao Files, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/witnesses/witness-dr-valerie-rao-files-trayvonmartin-george-zimmerman-case/.
104
Id.
105
Trayvon Martin/George Zimmerman Case Evidence Photos, supra note 98.
106
Id.
107
Id.
13 the chest, the medical examination of Martin revealed only a small abrasion on his left
hand. 108 There was no significant DNA evidence found.109
B. The Contested Facts
The information that was contested involved Zimmerman’s claim of exactly who
started the fight. Zimmerman claimed that he was walking back toward his vehicle when
Martin confronted him. 110 He explained that they exchanged a few words and Martin
attacked him first by punching him in the face. 111 Zimmerman explained that he tried to
fight Martin off. 112 However, he was overpowered and ended up pinned on his back with
Martin’s knees in Zimmerman’s armpits. 113 He explained that he was being punched in
the face and having his head slammed into the concrete sidewalk.114 He claimed he was
yelling for help, and while his head was being slammed, he felt like he was going to pass
out. 115 He claimed that he tried to wiggle out from under Martin in order to get his head
off of the concrete. 116 Zimmerman claimed that the wiggling revealed his firearm, and he
108
Witness Dr. Valerie Rao Files, supra note 103.
109
See Witness Anthony Gorgone Files, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/people/witnesses/witness-anthony-gorgone-filestrayvon-martin-george-zimmerman-case/. The scene was absent of blood, and
Zimmerman’s firearm revealed no DNA from Martin. Martin’s sweatshirt had one stain
that had Zimmerman’s DNA on it. None of Zimermann’s DNA was found under Martin’s
fingernails.
110
George Zimmerman Police Video Statements, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/video/george-zimmerman-police-video-statements/.
111
Id.
112
Id.
113
George Zimmerman Police Video Statements, AXIOM AMNESIA (Jan. 9, 2014),
http://trayvon.axiomamnesia.com/video/george-zimmerman-police-video-statements/.
114
Id.
115
Id.
116
Id.
14 thought that Martin saw the weapon and was reaching for it while saying “You are gonna
die tonight.” 117 Zimmerman then claimed that he then drew his weapon and fired once.118
C. The State’s Argument
The state’s argument about self-defense focused primarily on the theme of lies.119
Specifically, the state argued that Zimmerman continuously exaggerated in an attempt to
bolster his claim that he acted in self-defense. 120 This argument manifested itself in three
ways. First, Zimmerman is a “wannabe” cop who used his knowledge of the law to
structure his argument. 121 Second, Zimmerman was following Martin and not simply
searching for an address to give law enforcement. 122 Last, Zimmerman kept escalating
his account of the actual struggle to the point of saying Martin grabbed the gun. 123
D. The Defense’s Argument
The defense’s argument focused on the burden of proof. Defense counsel
explained that Zimmerman must be determined not guilty if the jury has a reasonable
doubt that he acted in self-defense. 124 The defense also explained that reasonable doubt
117
Id.
118
Id.
119
Andrew Branca, State’s Closing Argument: Two Hours of Raising Doubt, LEGAL
INSURRECTION (July 11, 2013), http://legalinsurrection.com/2013/07/states-closingargument-two-hours-of-raising-doubt/.
120
Id.
121
Id.
122
Id.
123
Id.
124
Erin Donaghue, George Zimmerman Trial: In Closing Arguments, Defense Attorney
Asks Jury Not to “Fill in Gaps” in State’s Case, CBS NEWS CRIMESIDER,
http://www.cbsnews.com/news/george-zimmerman-trial-in-closing-arguments-defenseattorney-asks-jury-not-to-fill-in-gaps-in-states-case/.
15 could come from conflicting evidence or absent evidence. 125 Defense counsel asked the
jury how many times they heard “what if” in this case. 126 Moreover he asked the jury not
to fill in any gaps or create anything the state did not prove. 127 Moreover, he explained
that the state has duty to prove their case. 128 Additionally, the defense did something
somewhat strange. The defense counsel explained that he was going to prove that
Zimmerman is innocent.129
The defense then turned to the events of the 26th. 130 He covered everything in
detail. 131 However, in relevant part, he explained that Zimmerman’s claims are basically
confirmed by the timeline and the evidence. 132 He explained that the timeline evidence
established that, from each phone call as well as the flashlight being found near the Tintersection of sidewalk, the struggle started where and when Zimmerman claims it did.
133
He then explained that Martin started to run away at 7:11 and 47 seconds and the
struggle began around 7:16. 134 He pointed out that if Martin was scared and running from
Zimmerman, he did not run very far. 135 The defense explained, “Someone decided this
wasn’t over with running.” 136
125
Id.
126
Id.
127
Id.
128
Id.
129
Id.
130
Id.
131
Id.
132
Id.
133
Id.
134
Id.
135
Id.
136
Id.
16 The defense then went over the screams for help. 137 Counsel explained that
because the screams could not be identified, then the jury gets to decide. 138 However, the
jury also has another option. 139 The jury can choose that they cannot decide. 140 He
explained again that a lack of evidence can be reasonable doubt. 141
The defense also went over every testimony and explained how much of the
testimony lends credibility to Zimmerman’s story. 142 As the defense closed its argument,
counsel once again explains how the state’s burden of proof cannot be met with the
evidence the state has provided. 143 Counsel then asked the jury to find Zimmerman not
guilty. 144
IV. Not Guilty – An Analysis of the Jury’s Verdict and the Public Reaction
The state lost its case because it failed to prove beyond a reasonable doubt that
Zimmerman did not act in self-defense. The state failed to do this primarily because this
case was plagued with reasonable doubt,145 and, outside of a few minor exaggerations,
Zimmerman’s story seemed to line up perfectly with all of the unrefuted evidence.
137
Id.
138
Id.
139
Id.
140
Id.
141
Id.
142
Id.
143
Id.
144
Id.
145
The unrefuted evidence in the Zimmerman case showed three very important facts,
each creating significant reasonable doubt. First, Zimmerman’s back was wet and
covered in grass. Second, the gunshot that killed Martin was preceded by a number of
screams for help and sounds that indicate a sudden quarrel. Lastly, there was a struggle
and there is no way to prove who actually started the struggle.
17 The fact is that the jury reached the correct decision. They reached their decision
correctly because the state did not prove that Zimmerman did not act in self-defense. 146
Moreover, the stand your ground law should have had no effect on the jury’s decision.
However, leading up to and following the jury’s verdict, the world has erupted.
From the start, the analysis of this case by those in the public and the media has been
flawed. Within the scope of this case pre-trial, the public reaction forced a trial where it is
unlikely one would have occurred without public scrutiny. Moreover, the media has
gotten the case wrong from the start. Many within the media still claim that Florida’s
“Stand Your Ground” Law was dispositive in the Zimmerman decision.
I. How Self Defense Applies to Zimmerman’s Claim
For Zimmerman to be found guilty, the State had to prove that Zimmerman was
engaged in an unlawful activity, was the first aggressor, provoked the fight, or was not in
fear of death or serious bodily harm. The problem many people have with the
Zimmerman case is that Zimmerman’s actions seem to have instigated the struggle with
Martin. However, without looking to legal precedent, following an unarmed teenager
seems pretty close to provocation or an act of aggression. This fact cannot be denied, and
those feelings are certainly understandable. Clearly, without Zimmerman’s act of exiting
his car and “going in the same direction” as Martin, Martin would arguably be alive
today. To many, Zimmerman created his own necessity to kill. As previously discussed,
common law used necessity to justify self-defense claims.
146
Reasonable doubt is met because the jury had to decide that it would be unreasonable
to think that Zimmerman acted in self-defense. Moreover, self-defense does not require
actual force or even a real threat of force. It only must be reasonable that someone in that
person’s position would feel like they were at risk of death or serious bodily harm.
18 However, following someone in public is not an unlawful act. Moreover, recall
that few jurisdictions allow for a non-physical act to constitute provocation or aggression.
In fact, common-law aggression or provocation is defined as the “use or threat of
force.”147 Following, without a physically-forceful act, is not use or threat of force.
Consequently, following someone is not legally seen as provocation or an act of
aggression. Moreover, there is no evidence that Zimmerman took the first swing.148
Consequently, Zimmerman’s actions are neither provocation nor aggression.
Alternatively, the state had the burden to prove that when Zimmerman pulled the
trigger, he was not reasonably in fear of death or serious bodily harm. The fact that
Zimmerman’s back was wet shows that, at some point, he was on his back in the grass.
This shows that at some point in the struggle, Zimmerman was losing the fight.
Zimmerman’s wet back, combined with the evidence that the gunshot was consistent with
Martin hunched over Zimmerman, is very significant in showing that his fear was
reasonable. This evidence is just shy of proof that Zimmerman shot Martin while being
overpowered. Although being overpowered does not necessarily equate to fear of death
or serious bodily harm, it does lend credibility to Zimmerman’s claim that he was in fear
for his life. There is also no evidence to prove that Martin reached for the gun. However,
147
Gibbs v. State, 789 So. 2d 443, 445 (Fla. Dist. Ct. App. 4th Dist. 2001).
148
There is some evidence that Martin was the first aggressor. In his testimony and walk
through Zimmerman claimed that he was attacked near the T-intersection in the sidewalk.
Zimmerman’s flashlight was found very close to that intersection. Moreover, Martin was
not injured aside from the single gunshot wound and a small scratch on his hand. This
provides no indication that Martin received a single punch. Furthermore, no one saw the
start of the fight. The flashlight being found near the T-intersection and lack of injury to
Martin adds credibility to Zimmerman’s claim. However, that evidence is far from
conclusive. Nonetheless, the failure of any party to absolutely prove who the first
aggressor was provides significant reasonable doubt. If it is impossible to prove who was
the aggressor, then it cannot be determined that Zimmerman did not act in self-defense.
19 the facts established lend significant credibility to every other claim within Zimmerman’s
account. Zimmerman’s claim that Martin reached for the gun, although unconfirmed, is
significant in justifying fear of death.
The voice of someone pleading for help also tends to show that Zimmerman was
in fear. Although the voice could not be definitively identified, the pleas for help are
evidence that someone was in fear when the shot occurred. Moreover, it could not be
proven that Zimmerman was not the one screaming. This, combined with the evidence of
Zimmerman on his back when the shot occurred, lends significant credibility to his claim
that he was yelling help and that he fired the gun because he was in fear for his life. This
evidence creates a reasonable implication that when he shot the gun; Zimmerman was
reasonably in fear of death or serious bodily harm.
II. Stand Your Ground on Your Back
Even in common law, Zimmerman would not have had a duty to retreat. There
never has been a duty to retreat when you are pinned on your back. Even the most strict
retreat jurisdiction is referred to as a “retreat to the wall” jurisdiction. Being pinned on
your back with no ability to escape meets the requirement of retreating to “the wall.” In
fact, Zimmerman claimed was that he tried to wiggle in order to get his head off of the
concrete while he was pinned under Martin.149 Consequently, even in a retreat to the wall
jurisdiction, Zimmerman would not have had a duty to retreat.
Recall that in common law, the duty to retreat does not attach until the person
who responds with deadly force develops a reasonable fear of death or serious bodily
harm. Therefore, for Zimmerman, no duty to retreat would have attached until he was
149
Zimmerman claimed that he was trying to wiggle at least to get his head off of the
concrete. However, this shows that he would not be able to retreat.
20 pinned. Considering the only evidence that can be established about the fight is that
Zimmerman was pinned on his back and fired from his back, the law would not have
imposed a duty to retreat. This is because it cannot be proven that once the struggle began
he had an opportunity to retreat safely. Consequently, stand your ground does not apply
to the Zimmerman case.
III. Reactions of the Media and the Black Community
From the moment the death of Trayvon Marin hit the headlines, the story
resonated with people. People cared. People identified with Martin. As accounts of
Martin’s death trickled in it was clear in the minds of millions of Americans that
Zimmerman was guilty. People scratched their heads as law enforcement investigated the
situation. Their jaws dropped as months passed before charges were filed against
Zimmerman. The media exclaimed dramatically that Florida’s Stand Your Ground Law
was going to stand between Trayvon Martin and justice. To this day, even after America
has heard the facts and a jury of Zimmerman’s peers determined that he acted in selfdefense, people still claim that “stand your ground” has allowed Zimmerman to get away
with murder.
The sense of outrage from the African-American community comes from a very
real place. Moreover, many of the feelings about the Zimmerman verdict and how “stand
your ground” applies to them are valid. T. Don wrote:
I am Trayvon Martin. As a 30-something, black male in America, I know
how it feels to be profiled. I've been watched closely out in public. I've
seen the anxiety in the eyes of other people when I approached.150
150
T. Don, Why We Must Accept the Acquittal of George Zimmerman, YAHOO VOICES
(July
14,
2013),
http://voices.yahoo.com/why-we-must-accept-acquittal-georgezimmerman-12234345.html.
21 His feelings have been mirrored by millions of people in the African-American
community. It seems no one is out of that grasp. Even President Obama explained that,
“If I had a son, he'd look like Trayvon."151 Moreover, it is reasonable for people to be
outraged. The experience of being unnecessarily followed is a discomfort that is all too
real to millions of black Americans. This time it ended in the death of an unarmed
teenager. To say that this case does not involve race would be idiotic. Nonetheless, while
this case has racial implications there is no way that those implications can be anymore
that perhaps a reasonable assumption. However, the law must be blind to those
assumptions. For this reason, while many in the black community reasonably feel like
justice was not served, others also are calling for respect for the process. T. Don, who you
will recall has experienced being followed unnecessarily, is calling for the verdict to be
respected. He explained that:
I admire the jury. They could've easily convicted Zimmerman on emotion,
public outrage, and racial tension alone. This case should've never been
about race. The media, self-serving, and attention seeking public figures
helped create a monster from this senseless tragedy. With all of that
pressure before them, they followed the rules of the law.152
Although stand your ground had little to no actual impact on the Zimmerman
verdict, the law does appear to negatively impact the black community. Specifically,
some data suggests that the law is being applied in a racially-biased way. 153 A study from
151
Stephanie Condon, Obama: “If I had a Son, He’d Look Like Trayvon”, CBS NEWS
(Mar. 23, 2012), http://www.cbsnews.com/news/obama-if-i-had-a-son-hed-look-liketrayvon/.
152
T. Don, supra note 150.
153
John K. Roman, Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis
of FBI Supplementary Homicide Report Data, THE URBAN INSTITUTE 7 (2013),
http://www.urban.org/UploadedPDF/412873-stand-your-ground.pdf.
22 the Urban Institute shows a racial disparity in justifiable homicide. 154 In Stand Your
Ground states, the shooting of a black person by a white person is deemed justified nearly
seventeen percent of the time, while the shooting of a white person by a black person is
deemed justified about one-and-a-half percent of the time.155 However, in non-stand your
ground states, white-on-black homicides are deemed justified about nine-and-a-half
percent of the time, while there was almost no change benefiting black people who kill
white people.156 This data seems to support an implication that Stand Your Ground Laws
are being applied in a way that primarily benefits white defendants.157
Although some of the public outrage was legitimate, it may have been misplaced.
In the documentary “Black Dot White World” by Dr. William T. Hoston, there is a
controversial theory that attempts to explain the public’s reaction and the ill effects of
that same reaction. In the film, Dr. Shayne Lee, associate professor of sociology at
University of Houston, explained that:
I feel the Trayvon case is an example of the dangers of an activist kind of
paradigm that we derived from the civil rights movement. Now, don’t get
me wrong, I think the civil rights movement accomplished a lot of
necessary subversive activity. But, it established the kind of paradigm or
rhythm for protesting things we don’t like that takes the energy of civil
rights without, sort of, the rationality that King and others had in
formulating their attacks. It’s this rash sort of response to perceived
injustices. And, I think that is what happened with Trayvon Martin . . . . I
don’t think this trial should take place. There is no way they are going to
prove this guy’s testimony wrong. And, the case is only the result of
activist energies around the country, which I feel were rash and not very
calculated or well thought out. So, it’s kind of like the Trayvon Martin
154
Id.
155
Id.
156
Id.
157
Id.
23 case is the result of an activist paradigm that overreacts to situations
without getting all the facts.158
According to Dr. Hoston, the documentary' s creator, Dr. Lee’s controversial take on the
grassroots movement that has “ruffled some black feathers…however, there is truth to his
statement.”159
Dr. Lee explained, “Zimmerman acted wrongly, but not illegally.” 160 This
statement explains the problem. Few, if anyone, feel like Zimmerman did anything
correctly. He was unreasonable in following Martin. His actions were stupid. However,
stupid is not equal to illegal. It may be unreasonable to think that members of the public,
when faced with such a situation, would rationally weigh the facts without the privilege
of understanding the complexities of the law. However, I refuse to give the media that
same pass.161
One problem with the coverage is that the media incorrectly put the blame
squarely at the feet of the “stand your ground” law. While the law is flawed and certainly
has negative implications, the Zimmerman decision is not the case to point out its flaws.
Much of the media attention pointed to three factors. First, juror B-37 explained that
“stand your ground” was key in her decision. Moreover, the jury instruction allowed
Zimmerman to stand his ground.
158
Dr. William T Hoston, BDWW: Critical Discourse Among Black Males in The Obama
Era, http://vimeo.com/73945114, (26:54) January 9, 2014.
159
Email from Dr. William T. Hoston, Political Science Professor at University of
Houston Clear Lake, to Stephen Nichols, (Nov. 14, 2013, 3:23 CST) (on file with author)
160
Email from Dr. Shayne Lee, Sociology Professor at University of Houston, to Stephen
Nichols, (Nov. 13, 2013, 9:35 CST) (on file with author)
161
Those in the media have the privilege of contacting people who are capable of
intelligently interpreting the law and applying the facts.
24 One outspoken juror explained that stand your ground was key in the jury’s
decision.162 Moreover, she explained that “the laws left me with no verdict option other
than ‘not guilty’ in order to remain within the instructions.”163 While this argument is
compelling that she alone thought that stand your ground was “key,” even a juror’s belief
is not dispositive that the law applies. It must be assumed that part of the confusion stems
from the fact that “stand your ground” has become intertwined with all of Florida’s selfdefense law. However, because the words “stand your ground” and “no duty to retreat”
are included in the law and the jury instructions does not mean that they apply to every
situation. Those words stick out like a sore thumb to justify those yelling at the top of
their lungs, “Look, look, stand your ground is to blame.” However, as previously
discussed, no jurisdiction would have required that Zimmerman retreat when it cannot be
shown that he could in fact retreat. In a recent Mother Jones article, the author quotes
Laura Cutiletta, a senior attorney at the Law Center to Prevent Gun Violence, as support
for the law’s applicability.164 She explained that stand your ground “would only be
applicable if he was conceding that he had an opportunity to retreat and that instead of
doing so, he used deadly force.” 165 However, they fail to point to the any facts that show
that Zimmerman could retreat. 166 The article explains that it was the defense’s strategy to
avoid anything resembling a stand your ground argument because it is so controversial.167
162
Mark Follman, Actually, Stand Your Ground Played a Major Role in the Trayvon
Martin
Case,
MOTHER
JONES
(JULY
19,
2013),
http://www.motherjones.com/politics/2013/07/stand-your-ground-george-zimmermantrayvon-martin.
163
Id.
164
Id.
165
Id.
166
Id.
167
Id.
25 However, it is not strategy to avoid the shelter of a law, which the case’s evidence simply
does not support.
Many may ask that if there was no evidence establishing guilt, then why did this
case even go to trial? The answer to that is that this case almost never went to trial.
Zimmerman was not arrested or charged with any crime until nearly six weeks after the
killing.168 He was only charged after a special prosecutor got involved in the case.169
Many believe that the case never would have gone to trial had it not been for the outrage
and media attention.
Some explain that “stand your ground” may have created the lapse of time
between the killing and charging Zimmerman with a crime. The potential for immunity
offered by stand your ground’s new additions to self-defense law may have slowed down
the process. However, considering that the killing was investigated and eventually
brought to trial to decide that “stand your ground” created the lapse would be speculation.
However, in this case, speculation that the stand your ground law at least created the
delay may be a reasonable inference.
In 2005, Jeb Bush signed Fla. Stat. § 776.032.170 This new law offers potential
immunity from charging, prosecution, arrest, detention and even civil action to a person
who uses force in self-defense.171 The immunity the law offers shifts self-defense claims
from affirmative defenses that are determined by a jury to immunity claims that are
determined by law enforcement—the state attorneys and, in some cases, a judge. In
Dennis, the Florida Supreme Court held that before or at the arraignment, the defendant
168
Id.
169
Id.
170 F LA . S TAT . § 776.032 (2005). 171
§ 776.032.
26 may file “a motion to dismiss, on the basis of the “Stand Your Ground statute.” 172 At that
point, the “the trial court should conduct a pretrial evidentiary hearing to decide the
factual question of whether statutory immunity is applicable.173 At that hearing, the
burden of proof shifts to the defendant. 174 The court’s job is to “determine whether the
defendant has shown by a preponderance of the evidence that the immunity attaches.”175
In the Zimmerman case, the defense waived their claim to this hearing. Perhaps
they did this because they did not want to expose their defense strategy to the
prosecution. Another possibility is that the defense realized that even though the law and
the facts were on their side, a judge would be committing political suicide to dismiss this
case while it was under the public’s microscope. This can be no more than speculation,
However, what is clear is that the potential for immunity may have delayed the
prosecution of this case. This is because even outside of the Zimmerman case, few cases
even make it to an evidentiary hearing. Many people interpret the immunity statute as an
absolute bar to prosecution. Others view the immunity law as a plea bargaining chip
rather than a defense.176 The plain language of the statute supports this contention. The
statute states: “the term “criminal prosecution” includes arresting, detaining in custody,
and charging or prosecuting the defendant.” 177 Russell Smith, president-elect of the
Florida Association of Criminal Defense Lawyers, explained that the law “is making
172
Dennis v. State, 51 So. 3d 456, 464 (Fla. 2010).
173
Id.
174
See id; See also Peterson v. State, 983 So. 2d 27, 28 (Fla. Dist. Ct. App. 1st Dist.
2008).
175
Dennis, 51 So. 3d at 464.
176
Zachary L. Weaver, Note: Florida’s “Stand Your Ground” Law: The Actual Effects
and the Need for Clarification, 63 U. MIAMI L. REV. 395, 410 (2008).
177
Fla. Stat. § 776.032 (2005).
27 filing decisions difficult for prosecutors.”178 Consequently, it is causing cases to not be
filed at all or to be filed with reduced charges.179 Some argue, that this is because the law
hands law enforcement too much discretion. 180 This discretion can be a problem,
especially when coupled with varying investigation tactics, inconsistent interpretations of
the law’s meaning, and the potential for an officer’s personal bias.181 Another problem is
that the facts cannot be properly determined if cases are not thoroughly investigated.
Nonetheless, on its face “stand your ground” does not bar thorough investigation of selfdefense claims.182 However, the effect of the law is far less clear. Cases that would
traditionally go before a jury are barred from arrest, charging, or even investigative
detention. 183 On top of law enforcement’s traditional burden to investigate and show
probable cause that the suspect committed a homicide; law enforcement must now show
probable cause that the force used was unlawful. 184 When this is added to a severe
expansion of force that can now be considered lawful, law enforcement’s hands are
practically bound.
178
Weaver, supra note 176, at 406-07.
179
Id. at 407.
180
Id. at 410.
181
Id.
182
See FLA. STAT. § 776.032 (2005) (“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.”).
183
See § 776.032 (“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.”).
184
See § 776.032 (“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.”).
28 This immunity, coupled with weak evidence, may account for the delay in
bringing charges against Zimmerman. However, it appears that the Zimmerman case was
fully investigated from the beginning.185 Consequently, if stand your ground was going to
block the Martin family from the justice, immunity did little more than delay their day in
court.
In hindsight, the more likely scenario is that while there was minimal evidence to
pursue charges against Zimmerman, public pressure made it political suicide to not
charge Zimmerman for the death of Martin. This is evidenced by the fact that Sanford
Police Chief, Bill Lee Jr., was forced to resign after public protest over his decision not to
arrest Zimmerman.186 This is further evidenced by the fact that recently, Lee’s resignation
has been rescinded and chances are he will soon return to his old position as Chief of the
Sanford Police Department.187
IV. The Silver Lining
If there is a silver lining in this whole situation it is that people cared. People were
outraged. Normally, this could be looked at as a negative, but, in a world of cynics, the
public actually cared about the death of a young black man. Sure, their view of the law
was misguided. However, when the dust settles, perhaps people will be able to focus on
the real issue.
185
There were a few issues with handling and preserving the evidence. However the
evidence was collected quickly and Zimmerman submitted to police questioning many
times.
186
Martin E. Comas, Sanford Commissioners Reject Chief of Police Resignation over
Trayvon
Martin
Case,
ORLANDO
SENTINEL
(Apr.
23,
2012),
http://articles.orlandosentinel.com/2012-04-23/news/os-george-zimmerman-chief-billlee-resigns-20120423_1_commissioner-patty-mahany-shooting-controversy-sanfordpolice-department.
187
Id.
29 The issue is that although stand your ground did not apply to the Zimmerman
case, the stand your ground law has some serious negative implications. Moreover, the
law as it exists in Florida is being cloned.188 The negative aspects of this law have now
been implemented in nearly half of the United States.189 The stand your ground law’s
actual effects should be looked at seriously. Hopefully, the public scrutiny will force
people to look into the actual effect of stand your ground laws.
One effect is already clear. That is, people are being killed when they did not need
to die.190 Self-defense is further removed from Blackstone’s idea of necessity than ever
before.191 The legislature of Florida explained their rational for stand your ground by
claiming “it is proper for law abiding people to protect themselves . . . from . . . attackers
without fear of prosecution or civil action.”192 Moreover, “no person or victim of crime
should be required to surrender his or her personal safety to a criminal, nor should a
person or victim be required to needlessly retreat in the face of intrusion or attack . . . ”193
While this sounds like a noble purpose, the law does not seem to achieve this effect. The
law’s critics argued that the law was unnecessary because it encouraged people to stand
188
Dan Christensen, NRA uses New Florida Law as National Model, 79 Daily Bus. Rev.
A1, A15 (2005). 189
Id. 190
Cheng Cheng, Does Strengthening Self-Defense Law Deter Crime or Escalate
Violence? Evidence from Expansions to Castle Doctrine, TEXAS A&M UNIVERSITY 4
(2013), http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf. 191
See United States v. Peterson, 483 F.2d 1222, 1229 (D.C. Cir. 1973).
192
Weaver, supra note 176, at 406-07.
193
Id.
30 their ground “when they could just as easily walk away.”194 Moreover, there is “no
indication that individuals were being prosecuted unjustly for defending themselves.” 195
On June 11, 2006, Jacqueline Galas, a prostitute, shot her john.196 The evidence
showed that he intended to kill her.197 As the phone rang he stood up to answer it, leaving
his firearm on the table in front of Galas.198 She may have had the opportunity to flee.199
She probably could have even left with the gun.200 However, she made no attempt to
retreat.201 She claimed that when he returned, he came at her in a threatening manner and
she shot him in the chest.202 The facts of Galas are telling because the stand your ground
law has given people a legal way of killing someone when there was a better way to get
out of the situation. 203 Galas may have been able to take the weapon and use it to escape
her situation. 204 However, she chose to stay and fight. 205 That choice removes the
necessity requirement of self-defense.206 The result of that choice is that now someone is
dead. By taking away the duty to retreat when possible, the law may encourage escalating
the situation. 207 People are dying that may not have needed to die. 208 It is unclear if the
194
Abby Goodnough, Florida Expands Right To Use Deadly Force in Self-Defense, N.Y.
TIMES, Apr. 27 2005, at A18.
195
Dan Christensen, NRA uses New Florida Law as National Model, 79 DAILY BUS.
REV. A1, A15 (2005).
196
Weaver, supra note 176, at 411. 197
Id. 198
Id. 199
Id. 200
Id. 201
Id. 202
Id. 203
Id. 204
Christensen, supra note 195, at A1, A15.
205
Id.
206
See United States v. Peterson 483 F.2d 1222, 1229 (D.C. Cir. 1973).
207
Id. 208
Id. 31 public’s knowledge of the law has informed them that they do not need to retreat and,
instead, may take a life. However, it is certain that stand your ground now allows these
actions where, before, the actors would have a duty to retreat.
More recent data seems to confirm the suspicions of those who argued against
stand your ground early on. The evidence shows that stand your ground laws are
increasing the number of homicides.
209
A study conducted by Texas A&M has
determined that stand your ground laws have resulted in an 8% increase in the number of
homicides across the twenty-one states that have passed stand your ground laws.210 That
result translates into over 600 additional homicides per year.211 Moreover, the study
showed that less than half of these additional homicides would be considered legally
justified, even under the laws expanded justification.212 This study also discovered that
expanding self-defense has created an incentive that is leading to these increases in
homicide.213 Specifically, “lowering the threshold for the justified use of lethal force
results in more of it.”214 Consequently, “stand your ground” may incentivize unnecessary
killing.
CONCLUSION
Although one’s duty to retreat is only applicable in the rare instance in which
retreat would be considered safe after the point a reasonable person would fear death or
harm, the duty to retreat is now entirely eliminated in Florida. Considering these laws, or
substantially similar laws, have been copied and applied in twenty-one states and
209
Cheng, supra note 190.
210
Id. 211
Id.
212
See id. at 27 .
213
Id. at 5.
214
Id. at 5.
32 counting, the application and effect of these laws should be seriously scrutinized. The
premise of this paper is that “stand your ground” did not apply to the Zimmerman case.
Specifically, eliminating a duty to retreat from self-defense law has no effect on an actor
who had no ability to retreat. Put simply, you do not need protection from “stand your
ground “when you are pinned on your back. The other point of this paper is to point out
that the public scrutiny over this situation was misplaced, and the “stand your ground
law” was incorrectly credited for Zimmerman’s ability to get away with murder.
However, I am from the school of thought that we should always look for a silver lining.
This is not to say that anything can take away any bit of real pain caused by this tragedy.
However, if the public and the media really want to look into stand-your-ground’s ill
effects, that should be done. Those in the public and the media should put the spotlight on
exactly what effect “stand your ground” will have on self-defense law in the United
States. The data that is currently available on the law’s effect is compelling, but far from
conclusive. However, the data that is available does support an implication that “stand
your ground” has caused unnecessary deaths,215 creates a delay in, or at least makes it
difficult to prosecute potential criminals,216 and the law may be being applied in a
racially-disparate way. 217 To reiterate, the effects are not conclusive, but the law needs to
be looked at more closely. The legal community needs to confirm that if these negatives
really are occurring, does “stand your ground” really meet its goal to protect the innocent
from prosecution? Out of all of the ill effects the most compelling data suggests that
people are dying as a result of this law. Moreover, traditional self-defense including a
215
Cheng, supra note 190.
216
Weaver, supra note 176, at 411.
217
John K. Roman, supra note 153, at 7.
33 duty to retreat at the point the actor knows they can retreat safely has adequately
protected the innocent from prosecution for centuries. Removal of a duty to retreat
removes at least some of the necessity of self-defense. Consequently, “stand your
ground” seems to be unnecessary. Moreover, the law does not seem to serve its goal. For
centuries those who choose to kill when they could safely retreat were not defined as
innocent. “Stand your ground” does not protect the innocent. It redefines innocence.
34