Seventeen years ago, in Springfield, Oregon, a local mechanic went into a fast-food restaurant, walked up behind a man eating lunch, and shot him to death in the back of the head.
A local grand jury refused to indict the shooter. There had been no altercation, no sign that the man shot was carrying a weapon. But the shooter believed that the victim had threatened his daughter. And the dead man was, in the words of the local district attorney, “a violent man, a drug dealer by trade.”
Maybe the shooter should have left it to the police, the district attorney said, but the victim should also have “moderated his behavior.”
I offer this tale as background to the shooting of Trayvon Martin in Sanford, Florida, and the ensuing debate about self-defense law. George Zimmerman, a neighborhood-watch volunteer, thought the black teenager was a suspicious presence in a gated neighborhood. Disregarding police instructions, Zimmerman pursued and confronted the young man minutes before killing him.
Police have so far made no arrest. This week, the U.S. Department of Justice announced it would investigate the Sanford shooting and the aftermath.
Reports on the case have cited a recent change in Florida law, enacting the principle called “stand your ground.” This is a radical modern distortion of an old common-law doctrine. The old “castle doctrine” held that someone attacked in his or her own home had no “duty to retreat” before using deadly force to repel an attack. The idea behind it was that a person confronted at home literally has no place to go and need not try to run away if facing an immediate threat of violence.
In recent years, gun groups have successfully convinced state legislatures to expand the doctrine outside the home. Florida’s statute now says that a “person 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 and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” A person who uses deadly force “is immune from criminal prosecution and civil action for the use of such force.” “Stand your ground laws” have spread across states in the West and South.
Florida’s district attorneys are not thrilled by the law. One told The New York Times that “the consequences of the law have been devastating around the state. It’s almost insane what we are having to deal with.”
From my own small brush with criminal practice, I know that a huge percentage of homicides include some claim of self-defense: “he had a gun”; “he hit me first”; “he looked at me funny.” Under the new laws, defendants can raise those claims before trial in a motion to dismiss on the basis of immunity; if that is denied, they can also try to prove self-defense at trial.
Little noticed in this debate is that the “stand your ground” doctrine is a distortion of the English common law, from which it is derived. Over the past 200 years, Americans have expanded the idea of self-defense until lawyers can—and will—seriously argue that a man who gets out of his car and pursues a teenager in public is “defending” himself because he was in a place where he “has a right to be.” Like a bubble around the body, the “ground” a killer can “stand” travels with him, right up into a potential victim’s face.
What’s missing is the history. The common law recognized two kinds of self-defense. Justifiable homicide protected a defendant who was, without any fault of his own, attacked by another. The doctrine evolved from questions about the legal guilt of an executioner. After all, the hangman or the axman intentionally takes a life. But he was “justified,” medieval courts held, because the king ordered him to do it. What then of the innocent victim who fights back against an attacker and kills? Well, the fiction grew up that the victim was also the king’s executioner—a “true man” in the legal sense—meaning not a manly man but, in the words of the Oxford English Dictionary, “an honest man (as distinguished from a thief or other criminal).”
But there was another offense at common law, called “chance-medley.” That offense occurred when two people got into an avoidable quarrel—in a pub, say—that graduated to violence. These quarrels could easily escalate. If one party to a chance-medley attacked the other, the person attacked might end up with the choice of killing or being killed. When the party attacked killed the attacker, he or she might claim self-defense—but only when the evidence showed that the eventual killer had tried to break off the encounter, or “retreat.” Even then, the killer was not justified but merely “excused.” Sir William Blackstone, writing in the 1770s, explained that “the law sets so high a value upon the life of a man that it always intends some misbehavior in the person who takes it away, unless by the command or express permission of the law.” Under that rule, a defendant who provoked and pursued a quarrel until it became violent couldn’t then claim “self-defense”—that was not being “true” in the legal sense.
When the common law migrated to America, chance-medley fell by the wayside. Americans liked the idea of going about armed, and in the South in particular, strangers in public needed to watch their mouths. In addition, Americans thought of society not in terms of obligations to the king but of individual rights. So the right to “stand your ground” began to spread—not only from the home to the pub but also from the “true” to the “shady.” A century after Blackstone, an Indiana court noted that “the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life.”
No longer did someone invoking self-defense need to show clean hands—even if, in a moral sense, his hands were filthy. So, in the recent Florida case of State v. Gallo, a defendant won an immunity motion after he confronted the victim in a nightclub parking lot and angrily demanded repayment of a debt. “As tempers flared the argument became more physical,” the state appeals court wrote. “Eventually the minor tussling stopped and more serious threats began. The situation reached a climax, breaking out into a gunfight between at least four men in the middle of the street. Men were ducking behind cars and firing over their shoulders as they ran for cover.”
Gallo walked. We have come a long way from chance-medley.
Many malign factors are swirling in the Trayvon Martin case. Florida has a searing history of racism and vigilantism (which from family background I know well). Handguns are increasingly available to both criminals and to “upright” citizens like Zimmerman. But the systematic skewing of the justice system to favor violence is a major factor, too. The “stand your ground” doctrine risks making America a nation of executioners.
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