Let me start with a controversial position - I am am not that upset about George Zimmerman's acquittal. I strongly dislike the outcome, but in the grand scheme of things, I know that there will always be judicial mistakes ... O.J. Simpson's acquittal? Don Siegelman's conviction? The hundreds of people on death row that are later exonerated by DNA?
Smart and dumb lawyers, dumb juries and ambiguous laws guarantee it.
We can't do much about the lawyers and juries, but we can do something about our laws. Zimmerman didn't get off because he was simply lucky. He got off because our laws muddied the legal waters to the point that a mediocre jury couldn't, in their own conscience, convict him.
Where did the "stand your ground law" come from? Surely, it didn't spring fully formed from the head of ALEC. It had to have more grounding than that ... and how did legislators expect it to be interpreted?
I turned to wikipedia and an article on the "duty to retreat" that many assumed to be settled law. If you look at the footnotes, you will see some legal articles and it was after reading a couple of those, that I began to grasp the tortuous historical complexities that I explore after the orange squiggly.
I am not a legal scholar. However, I have a few academic credentials (multiple top-tier business journal publications) and I appreciate the effort that goes into good scholarship. Hence, I urge you to read one or both of the following articles if you want to really understand the retreat vs. stand your ground debate.
- The first article was published in 1903 in the Harvard Law Review by Joseph Beale Jr. It summarizes the history of the debate from medieval England through the 1800s in America.
- The second article by Garrett Epps was published in 2009 in the Duke Law publication. It covers most of Beale's analysis and adds American additions in the 20th century.
I won't try to summarize dozens of pages of highly articulate analysis, except to suggest that it paints a far more nuanced picture of the issue than any recent media coverage. My takeaways from the two papers are as follows:
- Society has struggled with the legal concept of "self-defense" since at least the 1500s. Believe it or not, in 1500s England, self-defense was not a reason for acquittal. It was a good reason for the King to pardon you after you had been convicted of killing your adversary, but nothing could expunge the fact that you took a life.
- Over the next four centuries, the concepts of justifiable homicide, excusable homicide and self-defense all developed as grounds for actual acquittal. However, there was always a reluctance to condone killing ... for any reason.
- In the New World, the frontier mentality altered much of that thinking. Beale describes it well:
In the West and the South, where most of these authorities [sic legal opinions of the time] are found, it is abhorrent to the courts to require one who is assailed to seek dishonor in flight. The ideal of these courts is found in the ethics of the duelist, the German officer, and the buccaneer.
- This passage frames the fundamental nub of the self-defence debate. Which is more important? Preserving human life, or preserving righteous honor? According to both Beale in 1903 and Epps in 2009, this is still the heart of the debate.
- One view holds that killing is simply wrong. By this view, laws should be written not just to punish murder, but to influence its prevention. This motivates laws that obligate participants to flee conflict if at all possible.
- The other view holds that no person should have to sacrifice their honor in the face of a threat by being obligated to submit or flee.
- All factions recognized a person's home as their "castle". The pro-flight camp accept that the home is a last refuge from which you cannot be asked to retreat. The pro-honor camp views home defense as an intrinsically honorable position.
- English law has steadily evolved toward the former view - self-defense is only a defense if the person cannot safely flee.
- American law has vacillated between the two opposing positions. Some states (Alabama!!) steadfastly followed the English model. Other states (Illinois!!) gave more deference to the dictates of self-righteousness and honor.
- If there has been a trend over the past two centuries, it has been slightly and slowly toward an obligation to flee
- A slightly smaller trend has expanded the definition of "home" to include more than the actual building ... your lawn, your sidewalk, ... your neighborhood???
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All of these positions and debates occurred years (even centuries) before the ALEC-inspired Florida stand your ground law. ALEC may have taken an extreme position, but it wasn't a new one.
So, the real question is ... why is there still so much confusion and ambiguity? After 5 centuries, can't we can figure out where life begins and honor stops in a simple mano-a-mano fight?
The legal answer seems to be that we aren't there yet. The more practical answer is that the "simple" fight scenario is a lot more complex than most people realize. In particular, you can't define it with a simple physical action litmus test. What if you run away, but shoot your adversary over your shoulder?
The scenarios and arguments go on and on.
FWIW, I think the best idea in the readings comes from the second article (by Epps):
The rule of retreat could be replaced by an "avoidance of violence"
standard. The problem with the idea of "retreat" is that it can direct the
attention of the courts to the physical movements of the defendant and the
victim in the seconds before the killing. A contemporary replacement might
suggest that the right of self-defense does not arise unless the trier of fact,
considering all the facts and circumstances of the case, concludes that the
defendant made reasonable affirmative efforts to avoid the need for deadly
force. Actual physical retreat might be one such effort; but a defendant who
created or escalated a violent encounter would not be adjudged not guilty for
the sole reason that he or she physically retreated after the confrontation
turned violent, nor would a defendant who attempted to defuse a
confrontation be penalized simply because in the process he or she did not
retreat or actually advanced. The standard should explicitly mandate the use
of a broad time frame and a broad view of intent-hence the language about
"all facts and circumstances."
If this had been the legal standard, no jury would have acquitted George Zimmerman.