'Stand Your Ground' Critics Admit It Was a 'Huge Red Herring' in the Zimmerman Case

On Monday the Tampa Bay Times, no fan of Florida's self-defense law, ran a story with this headline: "Despite Backlash, 'Stand Your Ground' Laws Did Not Apply to Zimmerman Case." The article summarizes a consensus among legal experts consulted by the paper that the changes made to Florida's law in 2005, which included the elimination of the duty to retreat for people attacked outside their homes, did not figure in Zimmerman's defense or his acquittal:

Legal experts [described] the verdict on Saturday as the result of successful, garden-variety self-defense arguments that could sway a jury in any state….

Experienced prosecutors and law professors agreed that they think jurors were swayed by basic self-defense arguments made by Zimmerman's attorneys: Regardless of who initiated the encounter, at the moment the deadly shot was fired, Zimmerman feared for his life.

"I can see a similar outcome in jurisdictions without 'stand your ground' for the mere fact that the best eyewitness to counter the defense strategy was dead," said Darren Lenard Hutchinson, a professor of race and civil rights law at the University of Florida Levin College of Law. "That's the terrible reality. The jurors saw a bloodied nose and that may have been enough for them."…

Bob Dekle, a retired prosecutor who also teaches at UF Law, said, "'Stand your ground' turns out to have been a huge red herring [in the Zimmerman case]. The result very well could have been the same prior to enactment of the law."

Dekle, a critic of "stand your ground" provisions, said that even if a person initiates a fight, they always have had the right to defend themselves if they're in fear of death or great bodily harm. "You don't forfeit your right to do whatever you need to do to live simply because you've been a jerk," Dekle said.

Those comments are no surprise to Sen. Tom Lee, Republican from Brandon, who was president of the Florida Senate when stand your ground legislation was passed in 2005.

"I have yet to talk to anyone who believes the stand your ground provisions were remotely relevant to this case," said Lee, who believes the law is working the way it was intended. "For me, this case centered on your right to defend yourself."

The story is especially striking because the Tampa Bay Times for years has been running stories and editorials critical of the "stand your ground" law. Last February, for instance, the paper editorialized:

The Zimmerman case alone should have [been] enough for legislators to consider repealing the law, which allows the use of lethal force with no duty to retreat if a person reasonably believes his or her life is in danger. Zimmerman invoked the "stand your ground" law even though he pursued Martin, and he wasn't arrested because the law prevents police from taking a suspect into custody without probable cause that the force used was unlawful. Only after a special prosecutor was appointed was Zimmerman charged with second-degree murder. Now Zimmerman's new lawyer claims his client acted in self-defense and is not relying on "stand your ground" to defend him.

I'm not sure in what sense Zimmerman ever "invoked" the "stand your ground" law, since he has consistently said that Trayvon Martin attacked him, knocked him to the ground, and was on top of him, hitting him and knocking his head against a concrete sidewalk, when Zimmerman shot him in self-defense. But at least the Times is now admitting this was not a "stand your ground" case after all. Except that…it still includes the shooting of Trayvon Martin in its "list of 'stand your ground' cases," which would more accurately be described as a list of cases since 2005 where people claimed their use of lethal force was justified by self-defense. Their defenses did not necessarily rely on the absence of a duty to retreat. In another case on the list, for example, Trevor Dooley claimed he shot his neighbor, David James, during an argument at a park in Valrico because James was strangling him. A judge rejected that self-defense claim at a pretrial hearing, and a jury convicted Dooley of manslaughter.

The Times not only inaccurately calls the Martin shooting a "stand your ground" case (an error it has now implicitly admitted but not corrected); it also describes crucial aspects of the case in a misleading way. It says Martin did not "initiate the confrontation," which is true only if you focus on Zimmerman's decision to follow someone he deemed suspicious, as opposed to the initiation of violence. Zimmerman said Martin started the fight, and the jury believed him, based on physical evidence and eyewitness testimony that Martin was the one on top. The Times also says Zimmerman "pursue[d] the victim," which again relates to his unwise but legal tailing of Martin. The prosecution argued that Zimmerman pursued Martin "with hate in his heart," intent on violence, but the jury rejected that theory. And the prosecution conceded that Zimmerman did nothing illegal before the fight started. Similarly, the Times says Zimmerman "could…have retreated to avoid the conflict," which is true in the sense that the shooting would not have happened if Zimmerman had stayed in his car. But according to Zimmerman's account, the gist of which the jury accepted, it is not true that he had a chance to retreat after Martin attacked him, which is the relevant question if we are trying to assess whether the right to stand your ground played a role in the case.

The jurors, judging from Anderson Cooper's interview with one of them, felt a similar impulse to transform Zimmerman's moral responsibility for starting the chain of events that ended with Martin's death into criminal culpability. But they correctly concluded the law did not allow them to do that—and for a good reason: Based on the account of the fight that they accepted, Martin played a crucial role in his own death. While it is true that Martin would still be alive if Zimmerman had simply continued on his shopping trip to Target, it is also true, based on the story told by the defense, that Martin would still be alive if he had simply gone home instead of confronting and assaulting Zimmerman. Juror B37 told Cooper she believed Zimmerman and Martin both bore responsibility for the latter's death but that Zimmerman's actions were not criminal and "his heart was in the right place."

In a statement released yesterday, Juror B37 said "my prayers are with all those who have the influence and power to modify the laws that left me with no verdict option other than 'not guilty' in order to remain within the instructions." But the only way to change the law so that someone in Zimmerman's situation could be punished would be to criminalize imprudent yet currently legal actions when they prompt a violent response. As Bob Dekle observes, "You don't forfeit your right to do whatever you need to do to live simply because you've been a jerk." It is hard to believe that justice and public safety would be served by a rule that says you have no right to defend yourself if you make someone angry enough to hit you.