Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘stand your ground’

Washington Post keeps missing point on Stand Your Ground

I’ve got a new opinion piece up at the Daily Caller correcting some of the Washington Post’s persistent misconceptions about self-defense law, on both its editorial and reporting sides. Sample:

… how [Post reporters] Fisher and Eggen do stack their lead anecdote. Their opening paragraphs tell of a youth who innocently “knocked at the wrong door” and was greeted by an irate homeowner who, seemingly without reason or provocation, blasted him in the chest, only to be set free by the police, since in Florida, the victim’s father sorrowfully avers, it seems “the shooter’s word is the law.”

Pretty horrifying, right? It takes 17 paragraphs of unrelated matter before the first scraps of the other side of the story emerge: it was 4 a.m. and the youth, bipolar and “blitzed” on alcohol that night, was ignoring repeated pleas to leave a property with a young mother and baby inside; the husband/shooter (whom the Post never managed to reach for his side of the story) told police that he had asked his wife to call 911, which hadn’t shown up; that he had warned the intruder many times, and fired only after being “lurched” at; he was then arrested, “but Assistant State Attorney Manny Garcia concluded that his actions were ‘justified.’”

You can read the whole thing here.


Also, correspondent Lee Pacchia interviewed me at Bloomberg Law about the law’s application to the Trayvon Martin case in a 9 minute+ segment posted today. More commentary from my Cato Institute colleague Tim Lynch at Jurist. Earlier here.

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Podcast on “Stand Your Ground” laws


In today’s Cato Daily Podcast, I correct some of the flagrant misconceptions that keep circulating about Florida’s “Stand Your Ground” law, and in particular discuss why the law makes no difference at all (under current evidence) in assessing George Zimmerman’s legal guilt or innocence in the shooting of Trayvon Martin. Earlier/background here. And Eugene Volokh has a great post here on the nature of the supposed “duty to retreat,” which I mention in the podcast, with more here.

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April 6 roundup

  • “Help, I left my kids to wait in the car for less than five minutes, now I’m on trial for child endangerment” [Skenazy] “N.Y. State Senate Passes Bill Outlawing Kids Under 8 Waiting in Cars” [same]
  • “Greek court dismisses charges against German magazine for denigrating national symbol” [AP]
  • Pre-clearance for financial innovation, as with drugs and the FDA? Bad idea [Mark Calabria/Cato, The Economist, Thom Lambert]
  • NYT, Reuters misreport effect of Stand Your Ground laws [Jacob Sullum, Robert VerBruggen/NRO, earlier here, etc.]
  • “Attorney advises against talking to Baltimore Sun in email mistakenly sent to Baltimore Sun” [Andrew Beaujon, Poynter]
  • Ken at Popehat knows how to pick his enemies [first, second, third posts, Philly Law Blog]
  • “Now Can We Start Talking About the Real Foxconn?” [Tim Culpan, Bloomberg]

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April 4 roundup

  • N.Y. Times editorial flays Stand Your Ground, but dodges its (non)-application to Martin/Zimmerman case; Washington Post blasts same law, doesn’t seem to realize Florida homicide rate has gone down not up; chronology as of Sunday’s evidence [Frances Robles, Miami Herald] On the disputed facts of the case, it would be nice if NYT corrected its misreporting [Tom Maguire, more, yet more]
  • Lawprof Michael Dorf vs. Jeffrey Toobin on president’s power not to enforce a statute [New Yorker letter]
  • Israeli law bans underweight models [AP/Houston Chronicle]
  • Is price-fixing OK? Depends on whether the government is helping arrange it [Mark Perry]
  • Minnesota man arrested, jailed for neglecting to put siding on his house [KSTP via Alkon]
  • Once lionized in press, former Ohio AG Dann now fights suspension of law license [Sue Reisinger, Corp Counsel, earlier]
  • How California is that? “Killer got $30,000 in unemployment while in jail, officials say” [LAT]

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Will Stand Your Ground change the outcome of the Martin/Zimmerman case?

The Orlando Sentinel asked me to analyze how Florida’s Stand Your Ground law affects the Trayvon Martin shooting case. I conclude that in most likely scenarios, the law will make no difference one way or the other on George Zimmerman’s guilt or innocence, though it does help him on some points of procedure. Jacob Sullum has related thoughts at Reason (more at Cato).

The other piece in the point-counterpoint is from Florida prosecutor Buddy Rogers who emphasizes that claims of justifiable homicide have risen sharply (from 12 to 33 a year), even if homicides per capita themselves have not. I took a look at the crime numbers in this Cato post.

To answer a question, it was the Sentinel editors who elected to describe the antagonists in the Sanford confrontation by way of a given name for one (“Trayvon”) but a surname for the other (“Zimmerman”). My own inclination is to use a surname for both.

Michael Mannheimer has an important post on the role of “provocation” in the Martin/Zimmerman case at PrawfsBlawg. Earlier here, here, and here.

P.S. David Kopel similarly argues that Zimmerman’s guilt or innocence (depending on which version of events is accepted) is no different in Florida from what it would be under the law of New York or any other state; he also defends the rationale for Florida’s use of an immunity, which he argues “does not change the law, but… apparently is effective at reminding law enforcement officers of the standard they are required to obey” under court precedents forbidding arrest without probable cause.

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Krugman, Brady, and Stand Your Ground laws

I mostly ignore the frothings of Paul Krugman in the New York Times, but his column today pursues a logic that’s insane even for him: in an attack on the right-of-center American Legislative Exchange Council (ALEC), he proposes that Stand Your Ground (SYG) laws tie into a trend of “growing incarceration” intended to line the coffers of private prison contractors. Earth to Krugman: SYG laws bolster criminal defendants’ rights, and your colleagues at the Times have been complaining that as a result it’s too hard for prosecutors to send people to prison for long terms. Next time, could you stop and think before hitting the send button?

In the opinion piece I’m finishing up, I expect to argue that as more facts emerge about the Feb. 26 Martin/Zimmerman confrontation, the 2005 changes to Florida self-defense law known as Stand Your Ground are looking less and less likely to control the legal outcome of the case. Along those lines, I notice in Friday’s Washington Post what I read as a straw in the wind:

“We’ve never thought by itself that the law is the main issue,” said Dan Gross, president of the Brady Campaign to Prevent Gun Violence. “What we think is the main issue is the mentality that that law provides.”

Hmm. So despite hundreds of press assertions to the contrary in the past week, the actual content of the Florida law (as opposed to its supposed furtherance of a vague “mentality”) doesn’t turn out to be the main issue after all. Earlier here and here (& Reason).

Don’t miss related analysis from Eugene Volokh on the scope of the self-defense justification in American criminal law and the standards for probable cause in arresting someone who claims that justification. And Jennifer Rubin weighs in at Washington Post “Right Turn” (quoting me). More: Scott Greenfield, Steve Chapman.

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Stand Your Ground laws, cont’d

A media organization has asked me to take a closer look at the controversy over Florida’s Stand Your Ground (SYG) law, and I’ll be working on that over the next day or two. In the mean time, here are a few links you might want to check out if you’re following the controversy (earlier):

  • Florida’s law on justifiable use of force, including the 2005 SYG changes, is here. As usual, there is no substitute for reading the statute if you want to know how it works. Links to other state SYG laws are here.
  • Michael Mannheimer at PrawfsBlawg points out that some of the law’s reputed new burdens on prosecutors aren’t in fact new:

    First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. …

    So what are we left with that distinguishes Florida’s law? Well, obviously there is the “stand your ground” provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. …

  • But Mannheimer also points to a more significant difference in the 2005 law, namely that the self-defense justification is couched as an immunity rather than as a defense to be raised at trial. This distinction does accord a significant advantage to some defendants, especially where prosecutors hold a factually weak hand at the outset. “Meg” from Cambridge, among the few constructive voices amid the NYT comments section’s baying mob, makes a similar point here.
  • And a number of commentators raise plausible objections to details of the SYG legislation which do not appear relevant to whether George Zimmerman can escape prosecution for shooting Trayvon Martin. Thus Adam Winkler questions whether immunity should extend to situations where the user of deadly force acted in reasonable fear of lethal danger or forcible felony aimed at some third person other than himself (it would appear Zimmerman asserted danger-to-himself, not danger-to-third-parties, at the police station). And Anthony Sebok, writing at the time of the law’s passage, sharply criticizes the law’s expansion of immunity in home and car scenarios, again not at issue in the Martin case.

All of which is by way of clearing the decks for a closer examination of the provisions of SYG that do relate to Zimmerman’s claim of immunity, which will have to wait for a later post.

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Don’t rush to repeal “Stand Your Ground” laws

The New York Times invited me to participate in a “Room for Debate” discussion of Florida’s controversial “Stand Your Ground” self-defense law, and my contribution is here. I elaborate on some of the issues at stake — including the failure of Florida’s violent crime rate to rise as predicted under the law — in this Cato post (& welcome Instapundit, Reihan Salam/NRO, Alex Adrianson/Insider Online, Aaron Worthing, David Codrea readers).

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Stand Your Ground

Back in 1987, Florida set off a national trend by enacting a law which allows adults with a clean record, who pass a safety class, to obtain a permit to carry a concealed handgun for lawful defense. Although some states already allowed concealed carry, Florida’s 1987 law led to the concept spreading nationally, so that today 38 states have handgun carry laws similar to Florida’s. Now, a new Florida trend is spreading: “Stand your ground” laws.


Last year, Florida enacted a statute stating that victims of a violent felony attack do not have to retreat from the aggressor (even in a public place), and can use deadly force. Now, Indiana Governor Mitch Daniels has signed a Stand Your Ground law in his state, and the South Dakota legislature has enacted a similar law.

Because most Americans intuitively agree with the principle of self-defense, opponents of the law, such as the Brady Center, have resorted to making silly claims, such as asserting that the laws allow “a person who just feels something bad is going to happen to open fire in public.” A careful look at the Florida model, which I blogged about last year, leads to the conclusion that the Brady Center’s claims are unmerited.

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Florida self-defense

” When Florida passed a law in 1987 making it easier for citizens to get licenses to carry concealed firearms, opponents predicted that blood would run in the streets. ‘When you have 10 times as many people carrying guns as you do now, and they get into an argument and tempers flash, you’re going to have people taking out guns and killing people,’ one gun-control activist said.” But instead, Florida’s murder rate has been cut in half since then. “The warnings of gun-control advocates about that law were way off the mark. So when you hear them warn that another law concerning firearms will lead to unnecessary bloodshed in Florida, skepticism is in order.” The “stand your ground” rule is old hat elsewhere around the country, but the Brady Campaign doesn’t go around trying to scare tourists away from the many other states where it’s the law. (Steve Chapman, “Expanding the right to self-defense”, Chicago Tribune, Oct. 16).

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