Trayvon shooting doesn’t justify a return to ‘duty to retreat’

 

(SUN SENTINEL)   It’s natural to feel confused about whether Florida’s “stand your ground” law applies in the Trayvon Martin case. Craig Sonner, attorney for shooter George Zimmerman, reversed himself on the topic within hours this weekend, first telling CNN his client would not invoke the 2005 law, then telling ABC he would.

So what gives?

Let’s start with one of the most common misreadings of the law, namely that (in the words of Washington Post columnist E.J. Dionne) it sets out a rule of “Feel threatened, just shoot.” Florida law justifies lethal self-defense in a public place only under reasonable belief that force is necessary to prevent imminent death or great bodily harm.

Belief that’s not reasonable is of no account. No wonder, according to Sentinel reporting, Central Florida police regularly arrest people who try to claim self-defense after committing violent acts, and courts regularly convict them. That’s consistent with the “stand your ground” law.

The best-known provision of “stand your ground” rejects the so-called “duty to retreat.” Under that rule, prosecutors could sometimes overcome an otherwise valid claim of self-defense by arguing that you could have safely fled your attacker.

But — to clear up another misconception — the old duty of retreat would not have put Zimmerman at fault for following Trayvon around the neighborhood. Instead it came into play only when a confrontation had boiled up to a point of imminent violence.

In addition, Florida’s “stand your ground” law preserves a key part of the old duty to retreat: Someone who provokes a quarrel must indeed seek escape or disengagement before resorting to force. So if Zimmerman is found to have initiated the fight with Trayvon, he loses the benefit of the 2005 change.

How would the law work if instead, as Zimmerman claims, Trayvon started the fatal confrontation by jumping him?

Even under the old retreat duty, prosecutors needed to show your route of escape was truly safe; the rule did not require you to turn your back on someone who might well catch up and do you harm. By many accounts, Trayvon had the upper hand in the scuffle between the two before the gunshot (according to his attorney, Zimmerman had a broken nose).

If Zimmerman claimed he had no safe way to disengage from the beating, prosecutors might have had trouble establishing the “safe line of retreat” required under the old law.

There’s a pattern here. If Sanford police lacked probable cause to charge Zimmerman under the post-’05 law, they most likely also lacked probable cause under the older law. (Whether they should have worked harder to develop evidence of probable cause is a separate question.)

As UCLA law professor Eugene Volokh argues — and contrary to many press accounts — “most American states rejected the duty to retreat even before the recent flurry of new ‘stand your ground’ laws.” At this point, a large majority of U.S. states join Florida in rejecting the duty, which still prevails in England and elsewhere.

All that said, one relevant provision of “stand your ground” does call for scrutiny. The 2005 law couches the self-protection right not as a defense to prosecution but as an immunity.

That dry-seeming lawyerly change shifts the dynamic in several ways, and specifically bars arrest until there is probable cause to refute a self-defense assertion. And a variety of other disputed “stand your ground” provisions probably deserve a second look, including widened rights to use force in defense of third parties, in cars, and against imminent nonviolent felonies.

But bringing back the duty to retreat? At best, case not proved.

http://www.sun-sentinel.com/news/local/trayvon-martin/os-ed-trayvon-martin-stand-your-ground-yes-032712-20120326,0,1887690.story

9 Responses to Trayvon shooting doesn’t justify a return to ‘duty to retreat’

  • Good…Don’t attack the law because it’s a good and fair law that protects the victum and NOT the criminal…What if George didn’t have a gun but just a knife…

    This case is very sad because, no matter what goes on from here, a young man is dead…and you can’t recall him…and you can’t ease the grief of his parents…

    It’s just too bad that George didn’t stay in his car and wait for the police to arrive….

    The other sad part of this is scum like Sharpton and Jackson use situations like this to excite the crowd to make themselves look like leaders…which they are no better than thugs and liars in suits…I mean, with so many great and decent black people in America, why would the black American community look to assholes like them…

  • First of all the man is not and was not any kind of law inforcement. As neighborhood watch he had the right to watch his neighborhood, not follow someone around and invade privacy. The boy had rights to, nobody seems worried about that. He probably told the man to leave him alone and words were exchanged and bam he got his ass kicked. But who really had the upper hand? I think the boy got a couple good blows in and the man got pissed over powered him and thats when he started begging for his life.You do notice a large size difference between the two, I mean come on. I believe the man was extreemly racist which being mexican and white is kind of ironic but it happens. I think in a way he set it up to make the boy look violent, when really he drove him to the violence by harrassing him.

  • And I believe we are just as guilty as he is for letting a man like this still be free. He may be innocent until proven guilty but they didnt say nothing about being free until proven guilty. I could be completely wrong about everything, but with the way our justice system works today, you always have to wonder if they made a mistake, which they ussually do.

  • Hold on a minute, Nichole…George was taken to the police station and questioned and handled as though he was a prisoner…However, from witness statements and the evidence they gathered at the scene, they couldn’t find enough evidence to prove he did anything but protect himself…(But, you’re correct…he should have stayed in his car)…

    Nevertheless, bc they didn’t have enough evidence to charge him, they couldn’t arrest him…(And that has nothing to do with the gun law)

    There is also nothing to show he is a racist….In fact, the media found out that he tutors black kids on the weekend…

  • I suggest that comment makers go to the American Thinker online magazine website to read the timeline and diagram of what really happened. The corporate media whores are spreading outright lies, they are lying about what happened. You do not have the right to beat someone to death because they followed you, anyway. For those who still have some respect for the truth, I suggest that website and some articles posted 2 or 3 days ago which are easy to find. They include a map and step by step analysis. People are making absolutely incorrect pronouncements based on lies! There are some verifiable facts in this case.

    Also, one of the major corporate media whore outlets just anounced that Zimmerman will be charged and tried. Welcome to Negrotopia where half Peruvian Indian and half Jewish men do not have a right to defend their lives. Where American Indians (Zimmerman and one of the two supposedly white Oklahoma shooters) are classified as whites in order to claim white racism and to villify and take the rights away from the entire white race.

    In negrotopia the New Black Panther party can use clubs to keep whites away from the voting place and then their man in the "Justice" Department, one Eric Holder will protect them from prosecution. In other words Holder is a corrupt traitor communist piece of filth.

    Welcome to negrotopia where anti-white racism is really life threatening and deadly. In negrotopia anti-white racism and violence, even murder, are subsumed under the name "multiculturalism."

    In negrotopia blacks do not have to obey the law (word-search: Alabama Police Black Motorcycle Gang Selwyn) and can commit murder and severe beatings against whites with impunity!

  • P.S. In a constitutional republic, at least under our Constitution, racism cannot be a crime. If "racism" is a crime, then thinking the wrong thoughts is a crime, a THOUGHT-CRIME, a communist mainstay. Murder is the crime in question and the question to be considered in our system is "Was this killing in self-defense, was this justified?" it is not "What does Zimmerman think of blacks?". I know that the multitude of communists out there, crypto-communists, demands punishments for not thinking what they want everyone to think, but it is simply not allowed under our Consitution.

  • This entire scam is political…They all suck…

  • Here is a good point. Many of the people criticizing the Stand Your Ground Law (in spite of the fact that under these circumstances one already had the right to self-defense) have extensive security details, bodyguards, guards in the workplace, and other security. Many of what they apparently consider hoi polloi do not have that option. Therefore, we need to attend to our own defense. Here is the article:

    http://www.americanthinker.com/blog/2012/04/a_guy_who_walks_around_with_a_bunch_of_bodyguards_criticizes_self-defense_laws.html

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