Last night, I appeared again (here and here) on the PBS Newshour to discuss President Barack Obama’s comments about the Zimmerman trial. While I usually do not intrude on our weekend guest bloggers, I have received a few emails about a comment that I made about the Stand Your Ground law. I was commenting on the President’s statement that we need to reexamine the Stand Your Ground law and noted that the law was not in play at the trial. This led to a few emails objecting that I had ignored the jury instructions that they claim imposed the standard of the SYG law on the jury. I disagree and wanted to briefly explain. Most were civil and insightful and I thought, after our exchange, it would be good to post a brief discussion on this insular issue from the trial. There are important things to discuss in the aftermath of the verdict, as the President said, but we should be clear about our view of the underlying legal standards and trial record.
First, as I mentioned last night, I found Obama’s statement to be powerful and helpful. His sharing of his own experience is a valuable insight. I noted that there are two narratives in this case: a due process narrative (favored by those who agree with the verdict) and a race narrative (favored by those who disagree with the verdict). The President spoke largely to the latter narrative. It would have been useful to see the President acknowledge that this outcome can be justified by people of good faith on the basis for the evidence (though the President did commend the judge on her handling of the trial). However, his words were eloquent and deeply meaningful. I have included the full comments below for your reading if you have not had a chance.
Second, it was interesting to see the President signal that people should not expect too much from the civil rights investigation. As I have said before, this case does not present a record for a hate crime charge and would present an even weaker case for conviction.
However, it is my comment about the SYG law that I wanted to address. There is a common misunderstanding about the case. Many people believe that SYG was used as a defense. This mistaken view has been reinforced by people, including the President, calling for a national campaign against the law. (To his credit, he did not expressly claim that the law played a role at trial). In fact, the defense elected to present a traditional case of self-defense. SYG was waived pre-trial by the defense, which did not seek immunity under the law. As the Florida Supreme Court has stated, it is the immunity provision is generally referenced as the Stand Your Ground law. Dennis v. State, 51 So. 3d 456 (2010) (discussing “immunity from criminal prosecution pursuant to section 776.032, Florida Statutes (2006), commonly known as the ‘Stand Your Ground” statute.’”) The point of the law was to avoid the need for a criminal or civil trial entirely due to the immunity grant. Id. (“While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial.”).
I also want to note, as many on this blog know, I have been a vocal critic (if not one of the most vocal critics) against these laws. I have written extensively against the Castle Laws currently in place in a majority of states and the SYG laws that extend these laws outside of the home. My argument for years has been that these laws are not necessary and encourage people to use lethal force with often disastrous results.
Some people have insisted that SYG was applied in the case as a defense through Judge Nelson’s jury instructions. This is understandable given the fact that the jury instructions state that there is no duty to retreat. The jury was told that if 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 [as above].”
However, the common law does not impose a duty to retreat. It preexisted the SYG law in most states. If it didn’t, hundreds of thousands of cases of self-defense would have had different results after people defended themselves rather than flee. Indeed, this is a point that I often made in opposing these laws: you already have the right to defend yourself and not to retreat. There are slight difference in the jury instruction among the states, including Florida, but the Zimmerman instructions reflected the general common law standard for self-defense and the justified use of force. If the President was referring to the no duty to retreat rule in his call for reform, he would have to change not the SYG laws but the common law in the majority of states. This has been a rule either through statute or common law for a long time. The change would require citizens to retreat or flee when attacked in most cases or lose the defense in the use of lethal force.
There has been much to do about the inclusion of an instruction that “If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty.” That is also found in many states though some states have different burdens of proof. That is not a reflection of SYG immunity but a state preference in self-defense cases generally. As noted above, the legislation that included the immunity provision also adopted the common law rule on self-defense. You have no duty of retreat in many states that do not have a formal SYG law. Many people who may not like the immunity provision (barring criminal prosecution) would likely support the common law rule that, once attacked, you do not have to flee in order to claim self-defense in the use of lethal force. Note that in cases of non-lethal force, there is no such rule even in retreat states and, under the common law, you must still show that your use of lethal force was commensurate with the threat.
Moreover, the jury verdict seemed to reflect its view of the fact in relation to the main charge of the instructions (a standard charge) on self defense that a defendant is “justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” That is a standard that is used in the same basic form by all states that I know of.
This case turns on classic self-defense. Moreover, Zimmerman seemed motivated by an obsession with crime and not the SYG law. Even without the law, this encounter would have likely unfolded in the same way and the outcome at trial would have likely been the same, in my view. The outcome may have been different if Angela Corey had not over-charged the case and framed it as manslaughter. Many experts have criticized her charging and handling of the case. Yet, this again has little to do with the SYG law.
None of this means that we should not get rid of these laws. Those of us who have criticized these laws for years would welcome allies, particularly the President. I do believe that these laws, including the Castle Doctrine laws, do motivate some people like Joe Horn in Texas. However, the controversy over the Zimmerman trial should not be allowed to stray from the central and material questions, in my view. Reasonable people can disagree on the facts. In fact, one of the reasons this debate has remained so bitter is a refusal of both sides to recognize that reasonable people can disagree about what the evidence shows without revealing some bias or deep-seated prejudice. The jury clearly found the evidence lacking, as I pointed out in an earlier column. That does not mean that they were carrying out a racial agenda or blind to the historic mistreatment of blacks in America. They could have had a good-faith reason for reasonable doubt of what occurred at this place at that time.
Here are all of the jury instructions.
Update: In commentary on this posting, some have objected that Stand Your Ground was used in the jury instructions, which is precisely what this blog addressed below (though one person noted that he decided not to read the whole blog). There was an insistence that there is nothing to waive and no pre-trial hearing. That is simply not true. What most people refer to as the purpose of SYG is the immunity provision, which states as follows:
Fla. Stat. § 776.032 (2013)
§ 776.032. Immunity from criminal prosecution and civil action for justifiable use of force
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
In order to seek immunity, you have to invoke the SYG provision and have a substantive pre-trial hearing. The court rules on the matter from the bench. If successful, there is no criminal trial. See Wonder v. State, 64 So. 3d 1208; 2011 Fla. LEXIS 1246 (Fla. 2011). That is the most significant difference in the SYG law and most of us have referred to that provision in the case. The defense did indeed waive that argument in not seeking the pre-trial hearing. They wisely chose to make a conventional self-defense argument to the jury. Moreover, for those who read the entire blog, the point was that the no retreat language in the instruction is not the invention of the SYG law but rather a common law rule (though Florida did once have a retreat rule). No retreat is the common law rule and the SYG language comes from common law cases. While the wording may differ from state to state, most states have always recognized the right to defend yourself without having an obligation to flee or retreat in the face of an attack. In other words, you can have the same defense with no duty to retreat in states without a formal SYG law.
While this may be only of interest to some lawyers, these distinctions are often lost in the actual application to given cases. Even states with a duty to retreat like Connecticut, that duty is required only if “he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating. . . ” See Conn. Sec. 53a-19. Use of physical force in defense of person. As stated in Smiley v. State, 966 So. 2d 330, the legislature did indeed change a prior rule with a duty to retreat in Florida with the legislation. Furthermore, as discussed in Weiand v. State, 732 So. 2d 1044, the Florida case law required a duty to retreat, but most states do not under the common law. The prior Florida law had exceptions for home or “retreat to the wall” defense. The legislation effectively adopted the common law rule in those other states. See Wayne LaFave & Austin Scott, Jr., Criminal Law § 5.7(f) (2d ed. 1986). Notably, even under the old Florida rule, Zimmerman could have made the same defense that he used at trial. He insisted that it was Martin who attacked him and that during the struggle he had to use lethal force in the struggle. Under the prior Florida rule, “if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat then his use of force likely to cause death or great bodily harm was justifiable.” Dias v. State, 812 So. 2d 487 (2002) The adoption of the common law rule however certainly changed the instruction to expressly eliminate any retreat duty. If you waived immunity by not asking for the pre-trial SYG finding, you were left with the same rule in other states under the common law.
Below are the President’s comments which I commend to you as worthy reading:
I wanted to come out here, first of all, to tell you that Jay is prepared for all your questions and is very much looking forward to the session. The second thing is I want to let you know that over the next couple of weeks, there’s going to obviously be a whole range of issues — immigration, economics, et cetera — we’ll try to arrange a fuller press conference to address your questions.
The reason I actually wanted to come out today is not to take questions, but to speak to an issue that obviously has gotten a lot of attention over the course of the last week — the issue of the Trayvon Martin ruling. I gave a preliminary statement right after the ruling on Sunday. But watching the debate over the course of the last week, I thought it might be useful for me to expand on my thoughts a little bit.
First of all, I want to make sure that, once again, I send my thoughts and prayers, as well as Michelle’s, to the family of Trayvon Martin, and to remark on the incredible grace and dignity with which they’ve dealt with the entire situation. I can only imagine what they’re going through, and it’s remarkable how they’ve handled it.
The second thing I want to say is to reiterate what I said on Sunday, which is there’s going to be a lot of arguments about the legal issues in the case — I’ll let all the legal analysts and talking heads address those issues. The judge conducted the trial in a professional manner. The prosecution and the defense made their arguments. The juries were properly instructed that in a case such as this reasonable doubt was relevant, and they rendered a verdict. And once the jury has spoken, that’s how our system works. But I did want to just talk a little bit about context and how people have responded to it and how people are feeling.
You know, when Trayvon Martin was first shot I said that this could have been my son. Another way of saying that is Trayvon Martin could have been me 35 years ago. And when you think about why, in the African American community at least, there’s a lot of pain around what happened here, I think it’s important to recognize that the African American community is looking at this issue through a set of experiences and a history that doesn’t go away.
There are very few African American men in this country who haven’t had the experience of being followed when they were shopping in a department store. That includes me. There are very few African American men who haven’t had the experience of walking across the street and hearing the locks click on the doors of cars. That happens to me — at least before I was a senator. There are very few African Americans who haven’t had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often.
And I don’t want to exaggerate this, but those sets of experiences inform how the African American community interprets what happened one night in Florida. And it’s inescapable for people to bring those experiences to bear. The African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws — everything from the death penalty to enforcement of our drug laws. And that ends up having an impact in terms of how people interpret the case.
Now, this isn’t to say that the African American community is naïve about the fact that African American young men are disproportionately involved in the criminal justice system; that they’re disproportionately both victims and perpetrators of violence. It’s not to make excuses for that fact — although black folks do interpret the reasons for that in a historical context. They understand that some of the violence that takes place in poor black neighborhoods around the country is born out of a very violent past in this country, and that the poverty and dysfunction that we see in those communities can be traced to a very difficult history.
And so the fact that sometimes that’s unacknowledged adds to the frustration. And the fact that a lot of African American boys are painted with a broad brush and the excuse is given, well, there are these statistics out there that show that African American boys are more violent — using that as an excuse to then see sons treated differently causes pain.
I think the African American community is also not naïve in understanding that, statistically, somebody like Trayvon Martin was statistically more likely to be shot by a peer than he was by somebody else. So folks understand the challenges that exist for African American boys. But they get frustrated, I think, if they feel that there’s no context for it and that context is being denied. And that all contributes I think to a sense that if a white male teen was involved in the same kind of scenario, that, from top to bottom, both the outcome and the aftermath might have been different.
Now, the question for me at least, and I think for a lot of folks, is where do we take this? How do we learn some lessons from this and move in a positive direction? I think it’s understandable that there have been demonstrations and vigils and protests, and some of that stuff is just going to have to work its way through, as long as it remains nonviolent. If I see any violence, then I will remind folks that that dishonors what happened to Trayvon Martin and his family. But beyond protests or vigils, the question is, are there some concrete things that we might be able to do.
I know that Eric Holder is reviewing what happened down there, but I think it’s important for people to have some clear expectations here. Traditionally, these are issues of state and local government, the criminal code. And law enforcement is traditionally done at the state and local levels, not at the federal levels.
That doesn’t mean, though, that as a nation we can’t do some things that I think would be productive. So let me just give a couple of specifics that I’m still bouncing around with my staff, so we’re not rolling out some five-point plan, but some areas where I think all of us could potentially focus.
Number one, precisely because law enforcement is often determined at the state and local level, I think it would be productive for the Justice Department, governors, mayors to work with law enforcement about training at the state and local levels in order to reduce the kind of mistrust in the system that sometimes currently exists.
When I was in Illinois, I passed racial profiling legislation, and it actually did just two simple things. One, it collected data on traffic stops and the race of the person who was stopped. But the other thing was it resourced us training police departments across the state on how to think about potential racial bias and ways to further professionalize what they were doing.
And initially, the police departments across the state were resistant, but actually they came to recognize that if it was done in a fair, straightforward way that it would allow them to do their jobs better and communities would have more confidence in them and, in turn, be more helpful in applying the law. And obviously, law enforcement has got a very tough job.
So that’s one area where I think there are a lot of resources and best practices that could be brought to bear if state and local governments are receptive. And I think a lot of them would be. And let’s figure out are there ways for us to push out that kind of training.
Along the same lines, I think it would be useful for us to examine some state and local laws to see if it — if they are designed in such a way that they may encourage the kinds of altercations and confrontations and tragedies that we saw in the Florida case, rather than diffuse potential altercations.
I know that there’s been commentary about the fact that the “stand your ground” laws in Florida were not used as a defense in the case. On the other hand, if we’re sending a message as a society in our communities that someone who is armed potentially has the right to use those firearms even if there’s a way for them to exit from a situation, is that really going to be contributing to the kind of peace and security and order that we’d like to see?
And for those who resist that idea that we should think about something like these “stand your ground” laws, I’d just ask people to consider, if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman who had followed him in a car because he felt threatened? And if the answer to that question is at least ambiguous, then it seems to me that we might want to examine those kinds of laws.
Number three — and this is a long-term project — we need to spend some time in thinking about how do we bolster and reinforce our African American boys. And this is something that Michelle and I talk a lot about. There are a lot of kids out there who need help who are getting a lot of negative reinforcement. And is there more that we can do to give them the sense that their country cares about them and values them and is willing to invest in them?
I’m not naïve about the prospects of some grand, new federal program. I’m not sure that that’s what we’re talking about here. But I do recognize that as President, I’ve got some convening power, and there are a lot of good programs that are being done across the country on this front. And for us to be able to gather together business leaders and local elected officials and clergy and celebrities and athletes, and figure out how are we doing a better job helping young African American men feel that they’re a full part of this society and that they’ve got pathways and avenues to succeed — I think that would be a pretty good outcome from what was obviously a tragic situation. And we’re going to spend some time working on that and thinking about that.
And then, finally, I think it’s going to be important for all of us to do some soul-searching. There has been talk about should we convene a conversation on race. I haven’t seen that be particularly productive when politicians try to organize conversations. They end up being stilted and politicized, and folks are locked into the positions they already have. On the other hand, in families and churches and workplaces, there’s the possibility that people are a little bit more honest, and at least you ask yourself your own questions about, am I wringing as much bias out of myself as I can? Am I judging people as much as I can, based on not the color of their skin, but the content of their character? That would, I think, be an appropriate exercise in the wake of this tragedy.
And let me just leave you with a final thought that, as difficult and challenging as this whole episode has been for a lot of people, I don’t want us to lose sight that things are getting better. Each successive generation seems to be making progress in changing attitudes when it comes to race. It doesn’t mean we’re in a post-racial society. It doesn’t mean that racism is eliminated. But when I talk to Malia and Sasha, and I listen to their friends and I seem them interact, they’re better than we are — they’re better than we were — on these issues. And that’s true in every community that I’ve visited all across the country.
And so we have to be vigilant and we have to work on these issues. And those of us in authority should be doing everything we can to encourage the better angels of our nature, as opposed to using these episodes to heighten divisions. But we should also have confidence that kids these days, I think, have more sense than we did back then, and certainly more than our parents did or our grandparents did; and that along this long, difficult journey, we’re becoming a more perfect union — not a perfect union, but a more perfect union.
Thank you, guys.