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Four Ways Stand Your Ground Is Promoting Vigilantism

By Nicole Flatow  

"Four Ways Stand Your Ground Is Promoting Vigilantism"

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During a Senate committee hearing Tuesday morning on Stand Your Ground laws, Republican supporters defended the notorious law made famous after the fatal shooting of Trayvon Martin with broad pronouncements about the right to self-defense. “If you’re attacked on the street by a violent attacker, you’re obliged to turn and run is a notion that is contrary to hundreds of years of our jurisprudence,” Sen. Ted Cruz (R-TX) proclaimed. But contrary to Cruz’s assertion, the Stand Your Ground laws passed in more than 24 states cast aside several centuries-old principles of criminal law and self-defense. The following are four ways Florida’s law actually flouts traditional criminal justice notions to instead encourage vigilantism, as explained by Harvard legal scholar Ronald Sullivan during testimony Tuesday:

1. Stand Your Ground casts aside the long-held duty to retreat. When Sen. Ted Cruz says the obligation to run away from an attacker is contrary to precedent, he is referring to what is known as the “duty to retreat.” As Sullivan explains, the long-held principle that individuals must first attempt escape from a violent situation before using deadly force has been a bedrock of Anglo-American law for two centuries. There has long been one exception to this rule in some states known as the “Castle Doctrine,” which limits the duty to retreat in the home, on the rationale that one should not have to retreat from their own home. But in all other cases, the law has long asked individuals to minimize bodily harm and death as much as possible. That means they have a duty to retreat where they can do so safely. “If it’s unsafe to retreat, nowhere in our history is one required to retreat,” Sullivan writes. Stand Your Ground laws completely eliminate this duty. Sullivan explained his written testimony:

This emboldens individuals to escalate confrontation, even deadly confrontation, whereas an alternative rule would decrease the likelihood of deadly exchanges. The Trayvon Martin matter is a case in point. The very existence of this law emboldened Mr. Zimmerman to disregard the command of the 911 dispatcher and follow Trayvon Martin, arrogating law enforcement —what should be a public function—to himself. This private law enforcement attitude, made possible and emboldened by Florida’s Stand Your Ground law, coupled with a permissive concealed carry law, was the “but for” cause of Trayvon Martin’s death. But for the fact that Zimmerman exited his vehicle that evening, Trayvon Martin would be alive today.

2. The law grants blanket criminal and civil immunity. As Association of Prosecuting Attorneys President David LaBahn explains, criminal law rarely grants total, pretrial immunity. The few other circumstances in which total immunity is granted involve cooperation with law enforcement officers. In most cases, defendants can raise a self-defense claim at trial — when the facts and law are given a full airing, and where mitigating circumstances may yield conviction of a lesser criminal charge, such as involuntary homicide rather than murder. If a defendant requests a pretrial Stand Your Ground hearing, and the judge finds that the defendant reasonably feared imminent bodily harm, the judge can grant immunity from any and all charges before the trial begins. And in many cases, the law even provides immunity from arrest, as was initially the case with George Zimmerman.

3. The law presumes a killer’s fear was reasonable. One seeming limitation on Stand Your Ground laws is that the killer must have reasonably feared bodily harm. But in Florida, as in several other states, the law now presumes reasonableness if that killing took place in one’s home or vehicle. This was not a feature of the original Castle Doctrine. And it abrogates yet another of the fundamental limiting criminal law principles that took a back seat when the Stand Your Ground law was passed.

4. The law fosters self-perpetuating violence. Promoting vigilantism is one consequence of Stand Your Ground laws. But as Sullivan warns, behavioral changes may not be limited to those who want the right to Stand Your Ground. Particularly given the facts of the Trayvon Martin case, he warns that young black boys motivated by fear of adults like George Zimmerman may feel compelled to Stand their ground, too, in a cycle of shoot first, or be shot. “To be sure, this is not a world that I want my son to grow up in,” Sullivan says. But if he lived in a Stand Your Ground state, he said, he would have no choice but to advise his own young black son, Trey, to “shoot first” and ask questions later if he feels threatened by a stranger. “I would rather not counsel him in using lethal force when being profiled by vigilantes. That said, however, I would rather my Trey be alive and able to argue that he ‘stood his ground’ than dead and portrayed by lawyers and media alike as the personification of a stereotypical black male criminal.”

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