August 2, 2013

Holder Has It Wrong on Stand Your Ground: It's the Application That Needs Review, Not the Statutes

Attorney General Eric Holder took general aim at Stand Your Ground laws in remarks to the NAACP on July 16th.

These laws try to fix something that was never broken. There has always been a legal defense for using deadly force if -- and the "if" is important -- if no safe retreat is available. But we must examine laws that take this further by eliminating the common-sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely.

Stand Your Ground laws have been brought into national focus and debate by the verdict in the Zimmerman case.  But Holder's critique on the very existence of these statutes is the wrong lesson to be drawn from the verdict and judging from the enthusiastic response, NAACP members are ready to make the same mistake.  Which is too bad because both are missing the opportunity to press forward a key agenda of freedom in this country; the fair administration of justice. 

Despite the oft repeated claim of many that SYG had nothing to do with Zimmerman's case, that's not true.  Just because Zimmerman's defense team didn't bring up Stand Your Ground in the trial doesn't mean it was not relevant To the contrary, Judge Nelson in her jury instructions (PDF) told them they should consider the 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.

According to the most outspoken juror, known only as Juror B-37, the premise of Stand Your Ground was key to reaching their verdict. She told CNN's Anderson Cooper in an interview that neither second-degree murder nor manslaughter applied in Zimmerman's case "because of the heat of the moment and the 'stand your ground.' He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right."

“Stand Your Ground” is a blanket term for any legal regime in which individuals do not have a duty to run away in the event that they are attacked. In states with such systems, juries are not expected to consider whether an individual could feasibly have retreated before resorting to violence in his defense; in states that do not, juries must inquire as to his chance of safely fleeing. In other words, in most of the country the Castle Doctrine has been extended to the village.

31 states are in the "no duty to retreat" camp, a majority of states. Zimmerman's case is one of several high profile self defense cases in recent years that highlight the need to examine how the SYG legal regime is being applied.  If the high profile cases are any indication, there is reason to examine how SYG law gets applied to different defendants. Contrast the cases of John McNeil in Georgia, or John White of New York, for example with the John Horner case in TX

The Tampa Bay Times found a variety of shocking results when they looked at the application of SYG in Florida.  The potential problem with SYG legal regimes isn't the impulse or concept behind the laws themselves, but the way in which they are applied.  Holder's position is even at odds with that of Tracy Martin and Sybrina Fulton, parents of slain Trayvon Martin, who clearly see that SYG legal regimes should be reviewed as to their real world application and changes made when they are not doing what lawmakers intended.  They are calling on governors of 21 states where SYG is the law to look at their application.  This is a sound policy response in the aftermath of the controversial Martin case.  Its a more thoughtful position from people who have every reason to be the opposite, than the position Holder exhorted the NAACP to take up.

If SYG case outcomes get some level of scrutiny, anomalous results like those found by the Tampa Bay Times or serious headshake cases such as that of Marissa Alexander and Orville Lee Wollard will occur less often, resulting in a better administration of justice and a lower burden for tax payers who foot the bill for trials and unnecessary, horribly ill advised prison sentences. 

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