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article imageOp-Ed: Don't let knee-jerk hysteria kill sensible laws

By David Delmar     Jul 23, 2013 in Politics
Yesterday, I posted a synopsis of my general thoughts on the public’s outrage over the George Zimmerman trial and verdict. Today, my focus is on a more specific but related issue: Florida’s "controversial" “stand your ground law”.
In order to understand the wisdom behind Florida's and other states' stand your ground laws it is first important to acquire some general context about the law of self-defense in homicide situations.
In many jurisdictions, when a person is confronted with the threat of serious or deadly force, the law imposes what is called a “duty to retreat.” In essence, the duty to retreat requires that the threatened person make every effort to escape before responding to the threat with serious or deadly force. Where this duty exists, a person who kills in self-defense may well be prosecuted for doing so if there is reason to believe they could have run away instead.
There is an obvious problem with imposing a legal obligation upon human beings which requires them to act in a way that may contradict powerful instincts in survival situations when higher cognitive function is often impaired. When a person is placed in reasonable fear of death or serious injury by the aggressive actions of another, primal instincts may overwhelm the capacity to soberly reason through and analyze the situation. In such moments, a person may not have the cognitive capacity to contemplate and comply with legal duties such as the duty to retreat. In an astute scholarly article on this subject, Christine Catalfamo, an expert on stand your ground laws, put it this way:
[When] a person is attacked……..he has only a split second to react and to determine the best way to preserve his life. [The duty to retreat forces the victim] to use that split second to analyze the circumstances, weigh the value of his own human life against that of his attacker, and determine the reasonableness and prudence of retreat. The bright lines drawn by the Stand Your Ground law eliminate these fine-grained decisions and permit those attacked to defend themselves based on easily understood and easily applied rules. While bright lines may seem a blunt instrument to use in the context of justified homicide, the fact remains that “[t]he morgue is full of people who hoped for the best from their attackers and were dead wrong.”
Here, Catfalmo eloquently articulates the problem with imposing an unfair obligation upon victims who are threatened by others with harm. To make the injustice sink in more firmly, imagine an effort to prosecute a victim simply for making the split-second decision to defend against a serious threat with force rather than run away. Would it not be unjust to put such a victim in prison for choosing not to flee knowing full well that his or her cognitive faculties may have been overwhelmed by adrenaline when the decision to use force was made? This hypothetical victim, as well as others, may have unwillingly surrendered bodily control to the uncompromising, unthinking entity called instinct. No one should dare prosecute them for that.
Enter stand your ground laws, which ensure that the armchair judgments of prosecutors are not allowed to second-guess the adrenaline-fueled self-defense decisions of victims faced with reasonable fear of serious bodily harm or death.
Florida’s stand your ground law, which has come under intense attack, is a very typical example. It reads, in relevant part:
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.
It is hard to see what is objectionable about this law when it is laid out for inspection. In fact, the law seems quite intuitive in that it affords to non-aggressors the right to decide for themselves—so long as the decision is “reasonable”—how to defend against serious threats.
With this in mind, there has been fierce criticism of stand your ground laws. Consider this representative example from Michael Zalewski, a member of Illinois’ House of Representatives:
Duty to retreat" is a fundamental principle of the law which asserts that if individuals are physically confronted with a clear and present danger while outside of their homes, they have the obligation to remove themselves from harm's way if at all possible, thereby avoiding the need to use deadly force in self-defense…..In fact, in many instances "stand your ground" laws may actually encourage retaliatory acts through the use of deadly force……..The burden of proof for someone to use deadly force under this doctrine simply requires that a person believes or imagines that he or she is danger. All too often, perceived dangers are arbitrary and rely on an individual's subjective reasoning. By allowing such a rationale for the use of deadly force, "stand your ground" laws are inherently flawed and have the unfortunate potential to increase violence and wrongful deaths based on misunderstandings, miscommunication, misconceptions, and racial and ethnic prejudices.
We have already discussed some of the serious conceptual flaws with the duty to retreat, and all of what we have said applies to Zalewski’s argument. That he calls the duty to retreat a “fundamental principle of law” is to say nothing about its merit (after all, for many years, slavery was a “fundamental principle of law”).
The thrust of Zalewski’s argument is that stand your ground laws may increase, rather than reduce violence. Empirically, this claim is unsupported; the statistical data is mixed. A strong positive correlation between stand your ground laws and violence has not been clearly demonstrated.
Zalewski’s argument is also based on a misleading representation of the legal mechanics of stand your ground laws. He writes: “[t]he burden of proof for someone to use deadly force under [Stand Your Ground] simply requires that a person believes or imagines that he or she is danger.” On the contrary, the word “reasonably” quite directly qualifies the word “believes” in the statute. The result is that, contrary to Zalewski’s claim, the burden of proof with stand your ground law requires a reasonable belief that great bodily harm or death is impending—not that someone merely “imagines” a threat. This is true in Florida and in virtually every jurisdiction boasting a stand your ground law. Again, it is hard to see what is objectionable about this formulation.
While Zalewski is correct that the reasonableness of a fear of harm is based on “subjective” perceptions, he has stated nothing profound with that observation. All human perception is subjective, and the criminal law is chiefly concerned with punishing those who do bad things with a subjective “guilty mind” (or mens rea, to use the technical legal term).
And might we also consider the flipside of Zalewski’s coin: might the duty to retreat erroneously “encourage” people to run away even when doing so would endanger them more than using force in self-defense?
Another glaring flaw with arguments against stand your ground (which is present in Zalewski’s) is very typical: they assume that people know the law, which is a dubious assumption at best. How many readers of this commentary know whether they live in a stand your ground or a duty to retreat state? The fiction that people know the law is necessary to make Zalewski’s point that stand your ground laws encourage violence, or that, by contrast, duty to retreat encourages conflict avoidance. While some knowledgeable citizens might factor the law into their “split-second” decision about how to act when afraid for their lives, it seems infinitely more likely that people who find themselves in such situations, when instinct takes over, will respond in whatever manner they regard as providing the best chance at self-defense, regardless of what the law says (and they probably won't know what it says anyway).
Ultimately, in both stand your ground and duty to retreat states, the acceptableness of the use of serious or deadly force in self-defense depends upon a jury’s evaluation of the circumstances, which further depends on the evidence available for the jury to consider. In a stand-your-ground-state, prosecutors must rebut the presumption of self-defense where it is alleged by proving beyond a reasonable doubt that the defendant’s actions did not meet the legal criteria. That is, the prosecution must prove to a jury either that the defendant used more force than was reasonably warranted in the circumstances (i.e, the defendant killed someone despite that his fear of serious injury or death was not “reasonable” in the circumstances), or that the defendant provoked the conflict. By contrast, in states where there is a duty to retreat, prosecutors have available all of those avenues as well as an important additional one: they can obtain a conviction by proving that the defendant could have run away and avoided the conflict altogether. Thus, the most obvious practical effect of a duty to retreat is to make the prosecutor’s job easier, which is plainly not the goal of criminal law. As CNN reported on this point:
The "duty to retreat" also made it easier for prosecutors to prove that a killing was not in self-defense. The facts that can be proven are often murky (particularly when of the two people who know what happened, one is the defendant and the other is dead) and prosecutors could often, by pointing to a defendant's failure to retreat, obtain a conviction even without establishing the precise facts.
It would be dishonest not to acknowledge that in duty to retreat states a greater number of guilty defendants may ultimately go free, as prosecutors will often be unable to rebut the presumption of self-defense and, lacking the ability to attack the defendant's decision not to retreat, will thus be out of options. Where this allows a guilty defendant to go free, it is most definitely unfortunate. But American criminal law is premised on a presumption of innocence (the absence of which creates virtual dictatorship) that is afforded to all defendants. Recognizing its historical affinity for the abuse of its subjects, the modern system places a heavy burden of proof on the government that must be satisfied before it can deprive them of their liberty. It is never a cause for celebration when a party guilty of a heinous offense escapes conviction by claiming self-defense—and stand your ground laws may enable this at times. However, this admittedly bleak scenario is infinitely more desirable than one in which an innocent person goes to prison because the government, though acknowledging the person was threatened, disagreed with the person’s decision about how to defend against that threat.
There is one more notable reason why stand-your-ground laws make sense: the rationales animating criminal punishment do not suggest that victims who kill or seriously injure in self-defense need punishment.
The standard justifications for criminal punishment are retribution (the moral failing of a person should be punished), rehabilitation (the person needs time in prison for self-improvement), deterrence (to set an example to prevent others from offending in the future) and incapacitation (the person is so dangerous they need to be off the streets). Not a single one of these rationales favors the punishment of individuals who, absent the reasonable fear of death or serious bodily injury created by the aggressive conduct of another person, would have felt the need to resort to violence in the first place. Such people did nothing morally wrong--they were not aggressors and were merely trying to protect themselves. Nor do they need rehabilitation, for essentially the same reason. Punishing them would not deter similar misconduct in the future because, as we discussed at length earlier, people will always do what they feel they need to do when threatened. This is a primal instinct that cannot be deterred. Lastly, such people do not pose a serious risk to society as revealed by their conduct.
Since none of the rationales of criminal justice favor punishment, it makes little sense to pursue it in such cases.
Most of the recent criticism of stand your ground laws has followed the shooting of Trayvon Martin and the acquittal of his killer, George Zimmerman. Popular outrage over the perceived injustices in that case has caused passions to overwhelm reason in many respects. This is precisely why society must be careful now more than ever to avoid making hasty and ultimately ill-advised decisions. Eliminating stand your ground laws and placing more power in the hands of government prosecutors may well be such a decision.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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