Tuesday, July 23, 2013
Stand Your Ground, Self Defense, and The Retreat Rule: A Legal Primer
The common law early adopted the privilege of self-defense as a defense in criminal(homicide and manslaughter) and civil (Tort) suits. The common law rule was fairly simple. A person was privileged to use reasonable force to protect against a threatened physical attack. Reasonable force did not include deadly force unless the threat involved deadly force. No duty to retreat existed when only reasonable force was used in self-defense. However, the common law imposed a duty to retreat prior to the use of deadly force in self-defense, but only if it were safe to do so. To reiterate, the common law only imposed a retreat rule when deadly force was used in self defense. Deadly force was defined as force calculated to inflict death or serious bodily injury. The idea of “retreat” was viewed with disdain by western and southern states because the concept of “retreat” could brand the retreater a “coward.” “Real men” were not cowards and would not retreat or run from a fight. These states adopted modifications to the retreat rule. The first exception was that one did not have to retreat if the threat came in the house. People should be able to defend themselves in their homes. The no-duty to retreat in one’s house rule became known as the “Castle” rule. It became the majority rule while the traditional retreat rule became a minority rule. Several states adopted “Castle” statutes. The next exception to the common law retreat rule was that no one had to retreat in their place of work prior to using deadly force. The workplace exception was not as widely adopted as the home exception. The next wave of statutes was “Stand Your Ground” laws, pioneered by Florida in 2005, and strongly backed by the NRA. The “Stand Your Ground” statute allows the use of deadly force with no duty to retreat when threatened with deadly force in any place you have a legal right to be. That would include, for example, in your car is threatened with a carjacking. The Florida statute clearly imposes an immunity from criminal and civil liability if the conditions are met. Three points about the Trayvon Martin and George Zimmerman case. First, the Zimmerman defense team did not raise “Stand Your Ground” as a defense. Instead, they used the traditional rule of self-defense. If George Zimmerman was threatened with deadly force, such as by having his head banged into concrete, then he was privileged to use deadly force. Thus, the new campaign by politicians against “Stand Your Ground” is disingenuous. It was not an issue in the Zimmerman Trial except to the extent that the judge threw it into one of the jury instructions. The second point is that if Zimmerman were being restrained with his head pounded into the concrete, then he had no duty to retreat. It would be both impossible and unsafe to do so. These issues would, of course, be questions of fact for the jury. The third point is the proposed boycott by entertainers of Florida and the other “Stand Your Ground” states. About half the states, both red states and blue states, have enacted Stand Your Ground statutes. In addition to Florida, the Stand Your Ground states include Alabama, Alaska, Arizona, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, New Hampshire, North Carolina, Oklahoma, Pennsylvania, Tennessee, Texas, West Virginia, Wisconsin, and Wyoming. A boycott of these states would severely impact the potential concert revenues of entertainers. One of the ironies of the “Stand Your Ground” debate is that Illinois State Senator Barack Obama in 2004 co-sponsored a statute that extended the privilege to use deadly force without retreating to defend their lives or their property.