In the wake of Trayvon Martin’s death, Florida’s Stand Your Ground Law has come under fire from anti-gun activists, the media, and Trayvon Martin’s family and supporters.

In response, Republican politicians (and George Zimmerman’s attorney) have defended the law by stating that the Trayvon Martin case is not a Stand Your Ground case.

Well, I agree, this is Not a Stand Your Ground case… Sort of.

In order to understand why this is not a Stand Your Ground case, you need to understand the state of Self Defense law in Florida prior to the passage of the Stand Your Ground Act and the State of Florida Self Defense law now.

Self Defense in Florida Then

Prior to the passing of the Stand Your Ground Law, a person could only use deadly force if it was reasonably necessary to prevent death or great bodily harm to him or herself.

The instructions for making this determination is found in Florida’s jury instruction on deadly force, which states:

In deciding whether a defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real, that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.

Additionally, the ability to use deadly force was further tempered by two long standing legal principles:

1. Retreat to the Wall: “Before taking a life, a combatant must ‘retreat to the wall’ using all means in his power to avoid” the need to use deadly force unless retreating would be futile Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997).
2. Castle Doctrine: If a person is attacked in his own home or premises (i.e. his Castle), he has no duty to retreat and had the lawful right to stand his ground and meet force with force, even deadly force, if it was necessary to prevent death or great bodily harm. State v. Bobbitt, 415 So. 2d 724 (Fla. 1982).

As a result, under the old self-defense law, even if a person reasonably believed they needed to use deadly force, if it could not be shown they either (1) used all means necessary to retreat or (2) were in their home or premises; they could be found guilty of the charged homicide (whether it be murder or manslaughter).

The Provocation Exception

One final exception to the use of deadly force is found in Florida Statute 776.041, which states that a person can not justify the use of deadly force if they initially provoked the altercation.

But for every exception, there is yet another exception. So under 776.041, even if a person provokes a fight against themselves, they can still use deadly force if the person they provoked responds with disproportionate force. Meaning a person starts a fist fight and the other person pulls out a knife.

This statute remains unchanged under Florida’s current Stand Your Ground law and, as explained below, will likely play a major role in the outcome of George Zimmerman’s case.

Arrest First, Ask Questions Later

Importantly, under the old law, self-defense was not something that law enforcement were expected to give much thought to if someone was killed. In such cases the old adage applied: arrest first, ask questions later.

If there was even the slightest doubt as to the defendant’s story, a law enforcement officer could arrest someone without any fear of civil repercussion in the form of a false arrest suit. (Not that have I ever heard of a law enforcement officer being sued for arresting someone who killed another person.)

Let the Jury Figure it Out

And while prosecutors are not supposed to charge people with crimes that they do not believe can be proven beyond a reasonable doubt, the reality is that prosecutors routinely bend to public pressure and charged people with manslaughter even though the facts supported self-defense.

This is because, no matter how compelling the self-defense claim, the determination of whether a person was defending themselves was always a question for the jury to decide. A judge could not dismiss a case, no matter how much he believed the defendant.

Thus charging someone with manslaughter (and sometimes murder) was a politically expedient way for a prosecutor to pass the buck and look tough on crime. As another old legal saying goes, let the jury figure it out.

Unfortunately, this devastated defendant’s families emotionally and financially, resulted in numerous pleas of convenience to avoid the possibility of being found guilty and sentenced to prison, and made many people believe that criminals had more rights than the average law abiding citizen.

Self Defense in Florida Now

In response to what many perceived as a situation that benefited criminals over law abiding citizens, the Florida Legislature passed the Stand Your Ground Act in 2005.

This act amended Florida Statute 776.012 and created two new statutes, Florida Statute 776.013 and Florida Statute 776.032.

Florida Statute 776.012

This amendment removed the requirement that a person first attempt to “retreat to the wall” if they reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm.

Florida Statute 776.013

This statutory enactment codified the Castle Doctrine and created a presumption that a person’s use of deadly force within their home was reasonable.

This is important because under the old law, even though a person was not required to retreat to the wall if they were in their home, they were still required to prove that their use of deadly force was reasonable.

Under the new law, a person is presumed to have reasonably used deadly force (if done in their home) and it would fall to the prosecutor to develop evidence that overcame this presumption. This is known as a statutorily created rebuttable presumption and is very common, only it is usually a defendant who is required to overcome the statutorily created presumption (think DUI over .08 or possession of recently stolen property).

The statute also further eroded the requirement to retreat by stating that a person could use deadly force any place they were lawfully allowed to be so long as they reasonably believed it was necessary to prevent death or great bodily harm.

This section is important in the Zimmerman case, because even though the statute removed the requirement for George Zimmerman to first attempt to retreat before using deadly force, it neither created a presumption of reasonableness, nor did it remove the requirement that he prove the use of deadly force was reasonable under the circumstances.

Florida Statute 776.032

This statutory enactment created what is known as “criminal prosecution immunity.” And stated that a person who lawfully defended themselves is “immune” from prosecution from arrest, detention, or prosecution.

As the procedure for making the determination of whether a person was “immune” from criminal prosecution was not defined by the legislature, the Florida Supreme Court cleared up the issue in Dennis v. State, 51 So. 3d 456 (Fla. 2010) and ruled:

A defendant may raise the question of statutory immunity [from criminal prosecution prior to trial] and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

The result of this statute and the Florida Supreme Court’s ruling is that a defendant can now raise self defense at two stages in the criminal prosecution.

First, a defendant can file a motion to dismiss asking the court to find that they are entitled to dismissal by using the procedure outlined in by the Florida Supreme Court. If the court denies the motion, the defendant is still allowed to raise the issue with the jury.

In my opinion, this added a much needed and reasonable layer of protection against prosecutorial over reaching.

Finally, the statute goes on to state that a law enforcement agency cannot arrest a person unless it determines that there is probable cause that the force used was unlawful.

It is this section that is probably the most vexing issue in Trayvon Martin’s death and likely the one that most needs to be addressed by the Florida legislature.

Is This a Stand Your Ground Case

To determine if this is a Stand Your Ground case, we must work backwards and analyze the applicable statutes.

Did George Zimmerman Provoke the Fight?

As I explained previously, Florida Statute 776.041, states that a person cannot raise self defense if they provoked the fight.

And that begs the question, what would be considered provoking the fight? Most people (including myself) focus on the facts that George Zimmerman:

1. Disobeyed the 911 Dispatcher, left his car, and followed Trayvon Martin; and
2. Brought his firearm with him, although lawfully concealed.

But neither of these acts are unlawful, nor would they be considered legally provocative acts.

So unless George Zimmerman told police that he went up either waiving his gun around or went up and started a fight with Trayvon Martin, his acts of getting out of his car with his firearm concealed and following Trayvon would not make him the aggressor. Thus 776.041 would not apply.

Was George Zimmerman Allowed to Stand his Ground?

If George Zimmerman was not legally the aggressor, we would then turn to Florida Statute 776.013(3).

And because George Zimmerman was not breaking the law when he followed Trayvon Martin and was lawfully present in the gated community (since he lived there) he was not required to attempt to retreat if Trayvon Martin either confronted him or physically attacked him.

Thus George Zimmerman was entitled to Stand his Ground.

BUT, even under the old law, George Zimmerman would have been entitled to stand his ground and use non-deadly force (i.e. fisticuffs) without first attempting to retreat. See Morris v. State, 715 So. 2d 1177 (Fla. 4th DCA 1998) (There is no duty to avoid danger before using non-deadly force.)

As a result, under both Florida’s old and current self defense law, George Zimmerman could stand his ground and defend himself with his fists IF Trayvon Martin attacked him first.

But Was Deadly Force Reasonable

Which leads us to the most vexing question in this entire case: what were the exact circumstances that led to George Zimmerman using deadly force.

Because even under Florida’s current Stand Your Ground law, George Zimmerman’s use of deadly force is not entitled to a presumption of reasonableness.

The reason we cannot answer this question is we do not know what happened in the moments before Trayvon Martin and George Zimmerman physically engaged one another.

If George Zimmerman went up and grabbed Trayvon or went up waiving his gun around, but Trayvon instead defended himself, which resulted in George Zimmerman shooting him – then his use of Deadly Force was unreasonable.

But we do know that George Zimmerman has a (self reported) broken nose, a cut on the back of his head, and grass stains on his back.

These facts beg the questions:

1. Did Trayvon Martin attack George Zimmerman first, pin him to the ground defenseless, and beat him?; or
2. Did George Zimmerman verbally ask Trayvon Martin to identify himself, but instead Trayvon Martin jumped George Zimmerman, pinned him to the ground in a defenseless manner, and beat him?

If either of these scenarios are supported by the physical evidence and George Zimmerman’s explanation; then George Zimmerman’s use of his gun was likely reasonable – and therefore lawful.

Moreover, even under Florida’s old law, George Zimmerman would have been allowed to stand his ground and INITIALLY use non-deadly force.

An under both the old law and the new law, if the situation escalated such that George Zimmerman reasonably had to resort to his weapon to stop Trayvon Martin from beating him badly; then the use of his firearm to stop Trayvon Martin would be lawful.

The Only Difference

The only difference is that even if law enforcement believed George Zimmerman, under the old law they would have arrested him first and asked questions later.

But under the new law, Florida Statute 776.032, law enforcement cannot arrest George Zimmerman unless they determine that the deadly force he used was unlawful under the facts of the case.

And we know that the Sanford Police Department declined to arrest George Zimmerman; therefore they have concluded that his use of deadly force was lawful.

So if any change needs to be made to Florida’s Stand Your Ground Law, maybe it’s that we need to return to Arrest First, Ask Questions Later when it comes to deadly force in self defense situations.

What do you think?