So usually I don’t write about domestic legal issues here, but the legal doctrine of self-defense is one that, ever since I co-wrote DefendingHumanity with Fletcher, I have always felt is connected with comparative and international issues.
I have been struck by the amount of incorrect information and poor legal analysis that has been floating around in the popular media about the Florida law. In particular, much of the Florida law appears not to apply to the situation involving Trayvon Martin.
For example, the first section of the Florida Statute provides a statutory presumption of 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.”
A reasonable fear of imminent peril is one of the requirements for exercising self-defense, but let’s see if the requirements for the statutory presumption are met. The attacker has to be “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 person’s will from the dwelling, residence, or occupied vehicle.” This is the so-called Castle Doctrine, and it simply does not apply in this case. From every report in the media, it appears that the confrontation with Martin happened on a public street. Unless law enforcement has different facts that have not been disclosed at this point, I fail to see how the Castle Doctrine is at all relevant to this case.
On to the rest of the Stand Your Ground law. The next section deals with the so-called Duty to 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.
Now, it is certainly true that in the Florida case there was no duty for Zimmerman to retreat, unless it could be argued that Zimmerman had no right to be on the street chasing down Trayvon Martin. Query: if a court were to determine that Zimmerman’s chasing of Trayvon Martin was motivated by racism, would that impact our determination of whether Zimmerman had a right to be there? Putting that question to the side, though, it appears as if the Florida law does remove the common law duty to retreat.
But I want to concentrate on the second half of the provision, which says that deadly force can only be used if “he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself…” Jefffrey Tobin concludes on CNN that the Stand Your Ground law codifies a subjective viewpoint, i.e. it authorizes force when viewed through the eyes of the defender. I think that is a highly simplistic analysis.
It certainly is the case that the defender has to have a sincere belief that the defensive force is necessary. True, that’s clearly subjectivist, but then the law adds a requirement of reasonableness. The question is whether to understand reasonableness subjectively or as an objective constraint on the subjective standard, i.e. that the belief has to be sincerely held by the defender but also objectively reasonable.
One might argue that the syntax of the sentence suggests a purely subjective approach, without any objective overlay, based on the phrase “he reasonably believes.” This language is almost identical to the language in the New York Penal Code, and the New York State Court of Appeals concluded in the famous Goetz case that the phrase “he reasonably believes” codifies a standard of objective reasonableness (though qualified by individual factors of the defendant’s situation). Here is the Court rejecting the fully subjective standard:
To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.
The similarities between this case and Goetz are striking. Like Goetz, the question becomes how we consider Zimmerman’s attitudes about race, if a future jury concludes that Zimmerman’s (mis)assessment of the situation was influenced by preconceived beliefs and unwarranted assumptions about race. Under a standard like the one applied in Goetz, it would be hard to see how this would qualify as objectively reasonable, even after taking into account the particularities of the defendant’s situation and background.