Trayvon Martin -- "Stand Your Ground" vs. "Pursue and Confront"

[Note: I've updated the discussion near the end of the post regarding burdens of proof]

There isn't much that hasn't already been said about the Trayvon Martin tragedy; at this point, even the president has weighed in. For the most part, people across the political spectrum agree that the situation should be investigated further, and it should go without saying that if George Zimmerman broke the law, he should bear the consequences.

But I want to use this post to explore the genesis of Florida's "stand your ground" law, and how that law might apply.

Let's start with the basics: historically, if you beat someone up, you were liable for battery. But you could avoid liability if were acting in self-defense -- the guy came after your first. For years, though, you would that defense if you have safely retreated from the fight. was the "duty to retreat" .

The duty to retreat itself had an exception: you did not have to retreat from, or within, your own home. So if someone broke into your house and threatened you, and you could safely retreat, you nonetheless did not have to do so; you could respond with force, up to and including deadly force. This was known as the "Castle doctrine", so called because "an Englishman's home is his castle". (Remember, most U.S. laws have their roots in English common law.)

So to recap: if you are attacked in public and can safely retreat, you must do so, but if you are attacked in your home, you can respond with deadly force, even if you can safely retreat. And that was the state of the law for hundreds of years.

But relatively recently -- first, about a hundred years ago, and then in the last ten or so years -- U.S. states have been expanding the Castle doctrine. Generally, people may respond with wherever they are. These statutes eliminate the common law duty to retreat. Florida has enacted such a law. The statute says, in relevant part, that someone "who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat". Fla. Stat. § 776.013(3).

How does that apply to Trayvon's case? (I'm assuming facts that closely to reasonable inferences that we can draw from the 911 recordings and other data, though it's important to note that we don't, and probably never will, know exactly what happened that night.)

So let's walk through the law. Obviously Zimmerman has killed Trayvon. Zimmerman will raise the defense of self-defense. The prosecutor will respond that he could and should have retreated; Zimmerman will point to Section 776.013.

Many commentators, including a sponsor of the original Florida law, have said that Section 776.013 does not give someone a right to "pursue and confront". But why not? After all, Zimmerman "ha[d] the right to be" in the gated community, and the law gives protection to someone in his vehicle. See Fla. Stat. § 776.013(1)(a).

I would focus, not on whether Zimmerman had a "right to be" in a particular area, but on two other things: first, whether was "engaged in unlawful activity" at the time of the attack, and second, whether Zimmerman "m[e]t force with force" .

Was Zimmerman engaged in unlawful activity? Trayvon's girlfriend says that she was talking to him just before the attack, and that Trayvon knew he was being followed and was trying to get away from Zimmerman. Reportedly, Zimmerman weighs 100 pounds more than Trayvon. If, by words or actions, Zimmerman created a "well-founded fear" in Trayvon and caused him to feel threatened, Zimmerman would be guilty of assault under Florida law. See Fla. Stat. § 784.011(1). Moreover, Zimmerman reportedly ignored the police's instructions not to pursue Trayvon. Florida law makes it a crime if someone "resists, obstructs, or opposes" a law enforcement officer. See Fla. Stat. § 843.01. If Zimmerman is guilty either of assault or resisting an officer, he was "engag[ing] in unlawful activity" and therefore would lose the protections of the statute.

Second, the statute only permits an individual to "meet force with force, including deadly force". But the implication is that the victim must have been the first aggressor (otherwise the "second" aggressor would be initiating force, not meeting it). For the defense to hold, Trayvon must have been the first aggressor.

So Zimmerman's defense may be much weaker than it initially appears. All of the "Stand Your Ground" discussion has assumed that the law gives people free reign to shoot someone whenever they feel threatened. Although that may be the practical effect in some cases, in this case (based on the facts as reported in the media), Zimmerman can only avail himself of the defense if (a) he was not guilty of assault or resisting an officer; and (b) Trayvon initiated the fight. As to the second point, it might be easy to say that we can never know what happened because all we have left is Zimmerman's word. And there is the added wrinkle, as described by Professor Mannheimer, that a claim of self defense gives the defendant immunity from arrest and prosecution. So the claim of self-defense cannot be tested through the usual mechanisms -- unless the police have "probable cause that the force that was used was unlawful." Fla. Stat. § 776.032. It's not clear whether "unlawful" as used in Section 776.032 (to modify "force") means the same as it does in Section 776.013 (when used to modify "activity"). It may not; after all all, resisting an officer, for example, could be "unlawful activity", but it is likely not, on these facts, "unlawful force". Assault, on the other hand, could be "unlawful activity" that does involve unlawful force.

A commenter raised a good point about my initial post; it suggested that the defendant has the burden of proof to show he was acting in self-defense. Here, I elided two important but distinct concepts, one at common law and one statutory. First, the general rule is that the defendant has the burden of raising the affirmative defense, and the prosecution has the burden of proving beyond a reasonable doubt that it does not exist. Second, and important here: that question would never come up at trial, because of the immunity described above. Therefore, immunity is decided during pretrial proceedings, at which a judge decides if the defendant is immune from prosecution because he was acting in self-defense. And on this question, the defendant must show, by a preponderance of the evidence, that he was acting in self-defense. See Dennis v. Florida, 51 So. 3d 456 (Fla. 2010) ("[W]e hold that a defendant may raise the question of statutory immunity pretrial 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.") (emphasis added). So, although it is true that the defendant does not bear the burden of proving self-defense at trial, he bears the burden of proving (albeit by a lesser standard) that the immunity attaches.

No matter how you look at it, the Trayvon Martin story is tragic. There's no reason this young man had to lose his life, and I'm sure even George Zimmerman wishes he hadn't acted as he did. I just wanted to write to add a bit of legal nuance, and to show that the mere fact that Florida has this law in place doesn't mean it will necessarily protect George Zimmerman here.