Stand-Your-Ground in the Zimmerman Case

Yesterday I wrote about stand-your-ground laws generally. I did so because I didn’t know the mechanics of such laws, and there is a great deal of talk about such laws from people who seem to have no greater understanding of them than I have.

In the Zimmerman jury instructions, the jury was instructed on the stand-your-ground law:

If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.

That instruction may not have been dispositive of the case—we’ll never know, since jurors decide then justify (based on the evidence and jury instructions)—but had the jury been given the pre-stand-your-ground jury instruction…

The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force.

…those three jurors who reportedly began deliberations having decided to convict would have had more ammunition to sway the three acquitting jurors.

Here, for the laypeople in the audience, is how a jury learns the law: The lawyers and the judge work out what the jury is to be told about the law; the judge reads those exact words to the jury; the lawyers argue to the jury what they think those words mean; and when the jury retires to deliberate they receive a printed copy of those exact words. Those written instructions are the law that applies to the case. The jurors are not allowed to consider other understandings of the law, and they generally will not get more clarification. They are on their own.

So, for example, if the jury had been given the pre-2005 instruction and the three convicting jurors had seized upon it as confirmation of their decision that Zimmerman was guilty (because by retreating before he was even attacked he could have avoided the need to use force), the three acquitting jurors might have argued that that’s not what the instruction  meant—that the duty to retreat doesn’t arise until after the attack (when, in the particular case, they thought it was too late). The jurors might then have sent a note, via the bailiff, to the judge:

“Is the use of force unjustified because the defendant could have avoided the need to use force by retreating before he was attacked but not after?”

The judge would call the lawyers back to the courtroom from wherever they were sweating the jury, read the note to them, and then send it back with a singularly unhelpful answer: “You must follow the law as it is given to you in the jury charge.” It’s unhelpful because the jury charge can fairly be read two ways.

The Zimmerman jury was not given a retreat instruction for the situation in which Zimmerman was not attacked, but still reasonably believed that deadly force was necessary. It may be that the Florida legislature intended the stand-your-ground law to apply to that case as well, and wrote the statute badly. Legislatures do that. If it didn’t, and if the evidence could have supported a reasonable jury’s finding beyond a reasonable doubt that Zimmerman was not attacked, then the jury should have been given the common-law retreat instruction for that case (modified with the stand-your-ground instruction for the other).

Nobody can say whether the outcome of the Zimmerman trial would have been different had the instructions been different. But absent Florida’s stand-your-ground law the jury would have been instructed that “a person may not resort to deadly force without first using every reasonable means within his or her power to avoid the danger, including retreat.” Since that could have changed the dynamics in the jury room in ways at which we, and the jurors themselves, could not possibly guess, it’s foolishness to say that “stand-your-ground laws did not apply.”

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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12 Responses to Stand-Your-Ground in the Zimmerman Case

  1. Shane Cridlebaugh says:

    If the duty to retreat could apply before the attack began, wouldn’t that negate the defense of self defense in every case that did not rely on stand your ground? Applying the principal in that way would require someone to retreat every time they suspected an attack might occur, which would lead to absurd results. While it’s true that we don’t know what might have happened if a common law jury instruction were used, it is only logical to assume that the jury would not have applied the common law duty to retreat to the period before the attack, and the corresponding knowledge in a reasonable defendant that retreat might be necessary, occurred.

  2. shg says:

    So you think it’s a reasonable interpretation of the pre-SYG instructions that there was a duty to “retreat” before there was an attack to retreat from? While no one ever knows why a jury decides anything, if we play the game that jurors understand and follow the charge, then there is no reasonable interpretation that could require retreat before attack. Sorry, but just can’t see it.

  3. markwbennett says:

    It is never logical to assume that a jury will interpret the law the way you hope it will. Retreat before there’s an attack? Certainly a jury could think that the pre-2005 instruction required it; I’ve seen it argued: By retreating when the dead guy first started making vaguely menacing noises (but before there was an attack), the defendant could have obviated the use of force.

  4. markwbennett says:

    Let me put it another way: In every self-defense case that goes to trial, the defendant’s questionable decisions led to the victim’s death. Given that there doesn’t even have to be an attack for self-defense to be justified, I don’t think it’s a stretch to say that a jury might interpret the pre-stand-your-ground instruction as requiring better decisions, including retreat even before an attack occurs, in the face of frightening words or behavior.

  5. Shane Cridlebaugh says:

    True, but if the old jury instruction had been used I’m sure Zimmerman’s defense would have not had a duty to retreat unless he felt threatened. And, unless I’m mistaken, Zimmerman claimed once he felt threatened there wasn’t a chance to retreat. If the plaintiff could prove otherwise, perhaps there would be room for the jury to argue it was murder, but based on how the trial went it seems unlikely that the prosecution would have done so.

    • Mark Bennett says:

      Your assumption about the old jury charge is unwarranted. In fact, here (from this case) is more of the pre-1995 jury charge:

      The defendant cannot justify his use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.

      The jury didn’t have to believe Zimmerman’s story (in fact they didn’t even have to hear it, and why they did is one of the mysteries of this case, but that’s a different topic). By B37′s account (facially unreliable, but all we have) three jurors went in favoring conviction. If the jury charge had given them more ammunition to justify the decision they’d made (and sway the other three), the outcome might well have been different.

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  9. jquincy says:

    The most common misconception about that George Zimmerman trial is that it has ANYTHING at all to do with ANY stand-your-ground laws. Approaching someone, even when instructed not to by a 911 operator (who does not make or enforce the laws), and asking them what they’re up to is not a violation of any law in any state. In fact, punching someone that approaches you and makes an inquiry as your current intentions is considered battery in every state in the U.S. That said, in even the most gun-happy states, a person can only meet force with like force. In other words, if you punch me and I’m carrying a concealed handgun, I can only punch you back. If I go to my gun right away and use it, I will likely be convicted of murder. In most states that issue or recognize licenses to carry a concealed weapon, you have the right to defend yourself with said weapon in the face of imminent deadly force (retreat or not, if you’re staring down the proverbial or literal barrel and there’s no way out of it, do what you gotta do). Beating someone to the ground and getting on top of them and continuing to beat them and bash their head into the concrete is considered imminent deadly force just about anywhere because you have no idea when or if they’re going to stop. In any state that issues or recognizes concealed weapons permits, the carrier of said permit can use all force necessary (up to and including justifiable homicide) to neutralize that threat. In short, no matter where you live or what the laws are, you can’t retreat any further than the ground, especially if your attacker is on top of you, pinning you down and bashing your head in. Zimmerman’s course of action shouldn’t and wouldn’t have been considered murder in any state that recognizes his legal right to carry his firearm.

    • Mark Bennett says:

      Reading a blog post by a criminal-defense trial lawyer explaining carefully why “it’s foolishness to say that stand-your-ground laws did not apply,” and then opining that “The most com­mon mis­con­cep­tion about that George Zim­mer­man trial is that it has ANYTHING at all to do with ANY stand-your-ground laws” goes beyond mere foolishness and encroaches on stupidity.

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