Thursday, March 29, 2012

I agree

Jacob Sullum of Reason does not believe that Florida's "Stand Your Ground" provisions of its self-defense law have anything to do with the failure of police to arrest George Zimmerman for the shooting of Trayvon Martin.  I agree.

I am interested in the laws of the various states in relation to self-defense, as my posts on the "First Law of Nature" and Indiana's Barnes case have doubtlessly made clear.  As a result, when Florida's self-defense statute first came under fire for having somehow protected Zimmerman, I looked it up.

Though critics have tended to identify the "Stand Your Ground" policy as the object of their criticisms, it is difficult to see what it has to do with this case.  The "Stand Your Ground" policy is simply a legislative correction of one of the more absurd policies of the common law, that being one of the two most common ways of addressing the absurdities of the common law.  The common law rule allowed a person to be convicted of homicide for killing a person in self-defense, unless the jury was adequately convinced that the defendant had done all that he could do to escape -- a rule which 1) would have tended, from the perspective of the attacker, to reduce the danger to himself in threatening the lives and persons of others; and 2) (a) encouraged those whose lives or health were threatened to risk serious injury or death for the benefit of their attackers, in order to avoid criminal liability, or (b) punished those whose efforts to preserve the lives of their attackers were not convincingly satisfactory.  (Also, I do not see how placing the burden of proof on the prosecution would have changed any of this, though it would, of course, have affected the extent to which this rule was a problem.  The point is that no one who is attacked and placed in danger of life or serious bodily injury should have to weigh that kind of harm against the possibility of prosecution for or conviction of a serious crime, and that no such person, having been attacked, should have to surrender anything to a would-be murderer in order to save his own life.)  This change in the law is just, and it is not unusual, and, more to the point, it would not protect Zimmerman -- not based on the facts that are currently known to the public, at least -- particularly considering that Section 776.041 specifically denies the application of the "stand your ground" rule in the case of one who "initially provokes the use of force against himself or herself."  If there is any problem with that branch of Florida's self-defense provisions, it not in the "stand your ground" rule as a general matter, but in that it does not distinguish between actual attackers (in cases where the assailed is justified in using deadly force against the assailant) and those who provoke the attack in some other way.  Now that Florida legislators are aware of the problem (assuming that they have noticed), it would make sense for them to make that adjustment, but even as it is, I am impressed by how well that part of Florida law is designed and written.

However, this may be a case of mistaken identity.  A Professor Michael J.Z. Mannheimer, quoted in the Reason article, objects to a different part of the Florida self-defense chapter -- one that could more plausibly be said to have been responsible for Zimmerman's continued freedom.  He refers to Section 776.032, which grants a certain immunity to those who act in self-defense, protecting them from prosecution until and unless there is probable cause "that the force used was unlawful."

I do not think that this part of the law is at fault, either.  Section 776.032 does not require specific evidence eliminating any possibility of self-defense, nor does it shield everyone who claims to have acted in self-defense, but it does allow the possibility or appearance of self-defense (based on the evidence) to negate the probable cause for the possibility that the force used was unlawful.  This is appropriate and just, and should not have had a significant effect on Florida law, if it did -- probable cause is already needed in order to arrest a person, and if among the apparent facts of a homicide case are those which tend to establish that the killer acted in self-defense against a serious threat, it would be difficult for anyone to justify arresting that person.  (Was the former practice in Florida, in that situation, to arrest and prosecute the person -- even though it appeared that he had acted in self-defense?  I hope not.  If it was, then this is a good law, and if it was not, then this part of the law did not change anything and could not have done any damage.)  If this law has been interpreted and applied in Florida so as to have absurd or unjust results, the law itself is not to blame for it.

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