Florida's Stand Your Ground law (776) has been singled out by the NY Times (1, 2, 3, 4, 5) and the left as a key obstacle to justice in the Trayvon Martin killing. Yet Jacob Sullum and others insist that, based on the available information, George Zimmerman was not in a situation where his duty to retreat was at issue; consequently, this is a normal self-defense scenario and Stand Your Ground should not be a whipping boy.
The resolution is here; I welcome feedback but this Florida attorney has put in one article bits and pieces I have seen floating around elsewhere.
And the answer is, both sides are right but Jacob Sullum is righter [Mr. Sullum makes similar points more modestly here]. Stand Your Ground was primarily about a presumption of reasonable force in a self-defense situation at home or in one's car. It also eliminated the duty to retreat in other situations, but the duty to retreat does not apply here. So far, Mr. Sullum is carrying the day.
However! Prior to the passage of Stand Your Ground these self-defense arguments would be raised at trial. Stand Your Ground created the basis for a new pre-trial hearing which can terminate the case on self-defense grounds; if the defendant loses there, they can raise self-defense again at trial.
From the article:
The procedures for asserting prosecutorial immunity under the Stand Your Ground Law are outlined in Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida First District Court of Appeal decision. The Petersen decision definitively established that Section 776.032 was created by the Florida Legislature to establish a true immunity and not merely an affirmative defense. The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes. Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. The trial court may not deny a motion for immunity simply because factual disputes exist.
With regard to the Trayvon Martin case, the notion that Florida’s Stand Your Ground law prohibits the prosecution of George Zimmerman is fundamentally false. Although, if prosecuted, George Zimmerman may attempt to later assert immunity, this does not prevent a prosecution from being initiated. Prior to forming Hussein & Webber, P.L., Attorney Troy J. Webber served as an Assistant Public Defender in the Eighteenth Judicial Circuit of Florida, the circuit governing Sanford, Florida. During that time, the State Attorney’s Office for the Eighteenth Judicial Circuit routinely prosecuted defendants in the face of “Stand Your Ground” Motions. In those cases, the prosecutor would file charges, and defense counsel would file a “Stand Your Ground” Motion for Declaration of Immunity and Dismissal [Click Here for an Example]. The matter was then heard at an evidentiary hearing, where the defense had to show its entitlement to immunity by a preponderance of the evidence. If successful, immunity was granted and the case dismissed. If unsuccessful, the prosecution resumed and the case resolved by way of plea or trial.
From the NY Times:
The case will almost certainly include a pretrial hearing to determine whether the state’s Stand Your Ground law, which grants broad protections to people who claim to have killed in self-defense, applies; if the judge finds that Mr. Zimmerman acted appropriately, the case will end there. If the judge decides that the protections of the law do not apply, the case will go forward.
At trial, however, the question of self-defense can be brought up again and possibly will, said Robert Weisberg, a criminal law expert at Stanford Law School.
Normally a prosecutor would anticipate this process, evaluate the likelihood of success, and decide whether to bring charges. We certainly hope that happened here, and that Ms. Corey has a much stronger case than the publicly available information suggests.
BONUS TIMESWATCH: The duty to retreat evidently extends to Times editors. Two of their early fulminations against "Stand Your Ground" specifically mention a duty to retreat:
They threaten public safety by eliminating the longstanding legal requirement that someone sensing a threat has a reasonable “duty to retreat” from perceived danger before resorting to deadly force.
Reported differences between local and state investigators over whether to charge Mr. Zimmerman initially only underline the dangerous vagaries of Stand Your Ground laws passed at the demand of the gun lobby in a score of states. Their lethal flaw is the abolition of the traditional legal duty to retreat from a threat before resorting to deadly force.
The duty to retreat is not at issue if Zimmerman really was flat on his back getting pummelled. However, Stand Your Ground did create the basis for his pre-trial hearing.
In their most recent editorial, an April 12 victoy lap, the Times editors do not mention "retreat" but provide new evidence that the left hand does not know what the far left hand is doing; in reciting the background they include this:
In this case, Mr. Zimmerman exited his car to follow the teenager despite a 911 dispatcher’s warning: “We don’t need you to do that.”
Hah! Ms. Alvarez reported that correctly today - Mr. Zimmerman was already out of his car when he got those instructions and responded "OK" when advised to go back. As to what he actually did, the trial may tell.
But as evidence that Times editors don't follow their own links or read their own newspaper, let's follow their link to the March 20 coverage by Ms. Alvarez:
In the 911 call, Mr. Zimmerman, using an expletive and speaking of Trayvon, said they “always get away.” The 911 dispatcher told him not to get out of the car and said the police were on their way. Mr. Zimmerman was already outside. A dispute began. Mr. Zimmerman told the police that Trayvon attacked him and that he fired in self-defense.
She was right then, she is right now, and the Times editors are just making stuff up. Or recycling "news" they didn't get from the Paper of Record.
If they don't take thier own reporting seriously, or follow their own links, why should we?