"Stand Your Ground": New Trends in Self-Defense Law

"Stand your ground" played a part in the prosecution of George Zimmerman in Florida.

By , Attorney · New Mexico School of Law

Self defense or defense of another often comes up when violence erupts between two people. For example, suppose a person is charged with assault or battery but the other party struck the first blow, was attacking someone else, or made frightening and credible threats. The defendant is entitled to present evidence that he was only acting in self defense or in defense of the victim. Traditionally, a successful self-defense claim involved showing that the defendant had no other choice—he couldn't diffuse the situation by using less force, or safely walk away from the aggressor. A limited exception to these requirements applied when the confrontation occurred within the defendant's home, explained more fully below.

A new wrinkle on self-defense, known as the "stand your ground" doctrine, has arisen recently in many states. In a nutshell, the new "stand your ground" statutes do not require the person being attacked to retreat. Some of these laws, such as Florida's, specifically state that a person being attacked or threatened, even in a public place, "has the right to stand his or her ground" and meet force with force. This defense played a part in the 2013 Florida prosecution of George Zimmerman, accused of second-degree murder of the unarmed teenager Travon Martin, though it was not relied upon at trial, as explained below.

This expanded version of self-defense is controversial, sparking debate about the proper response from non-law enforcement people who are faced with an aggressive attacker or a perceived threat of violence in their homes or in public. As many as 32 states have adopted some version of the "stand your ground" defense, while other states have retained traditional self defense statutes that strictly limit the right of self defense or defense of another to certain actions in certain circumstances.

The Elements of Traditional Self Defense

The law governing self defense has never been as simple as excusing any violent act just because another person struck the first blow. Traditionally, self defense laws have required someone being attacked or defending another to act reasonably and

  • use only the amount of force reasonably necessary to fend off the attacker, and/or
  • retreat if possible without taking any physical action.

The requirement that one use only the force reasonably necessary to stop an aggressor means that a person defending himself cannot use more force than the aggressor. For example, if an aggressor raises a fist or strikes a person with his hand, that person cannot shoot the aggressor. If a person uses deadly force to fend off an attack, he must have been in fear for his own life and that fear must have been reasonable. In other words, there must have been a reasonable basis for him to fear for his life, such as dealing with an aggressor who was pointing a gun, wielding another deadly weapon, or acting in a way that could cause death or serious bodily harm.

Members of law enforcement do not have the same duty to retreat as civilians. Because they are professionally trained to deal with violent aggressors and volatile situations, they may do what is reasonably necessary to defuse a situation. However, law enforcement personnel are required to follow certain protocol and any use of force by a member of law enforcement is subject to review by superiors and by a local public review board or other office.

The "Castle" Doctrine

Even within the traditional rule, an exception known as the castle doctrine developed, which allowed non-law enforcement people who are in their homes more freedom to use violence against aggressors or intruders. This doctrine, based on the age-old notion that "a man's home is his castle," permits a person to use even deadly force against someone who has entered his home without permission and who poses an imminent threat of serious injury. The defense does not involve any consideration of whether retreat was safely possible. In some states, the resident can use violence even if the intruder wasn't using or threatening serious force.

Beyond the Castle: "Stand Your Ground"

States that have adopted "stand your ground" laws have extended the castle doctrine to confrontations outside a person's home, thus expanding an individual's right to act in a threatening situation and protecting him against criminal prosecution and civil liability.

The stand your ground defense may apply, depending on state law, in the following situations:

  • Beyond the house. The defense may be available when the confrontation was in a person's vehicle or on a person's residential property, including the driveway, swimming pool area, or land around the home.
  • A public place. The law may provide that, if an aggressor uses force or threatens violence against another in a public place, the person being attacked or threatened has no duty to choose an apparent safe way to retreat, and may instead use the amount of reasonable force necessary to fend off the attacker.
  • Presumption of violence. The law may presume that an intruder in a home or vehicle intends to commit an unlawful act using force or violence—this means that the person raising self-defense need not produce evidence of the intruder's intent.
  • Presumption of fear. The law may presume that a person who uses force against an intruder in his home, residential area, or vehicle was fearful of violence. Like the presumption of violence on the part of the intruder, this means the person claiming self defense need not produce evidence of his fear.

Once the defendant raises self defense, the prosecution has the burden of proving that the defendant did not act in self defense.

The Debate Over "Stand Your Ground"

"Stand your ground" supporters argue that a person defending against aggression from another should be free to act in a stressful situation and not have to worry about his actions being scrutinized by a judge or jury after the fact. Opponents express grave concern that this type of law gives citizens unlimited power without sufficient constraints, and point out that use of force by trained law enforcement personnel is subject to greater scrutiny than acts by citizens under such stand your ground laws.

Florida's Stand Your Ground Defense and the Zimmerman Trial

Florida's stand your ground law allows defendants to raise self-defense in a pre-trial hearing, which is essentially a mini-trial at which the prosecution has to prove beyond a reasonable doubt that the defendant did not act in self defense. If the defendant wins, a trial cannot proceed, and the defendant has immunity from civil suits as well. If the defendant loses, he can still raise the issue at trial.

The Zimmerman second-degree murder trial brought Florida's stand your ground law to public attention, and it appeared to play a significant role in the prosecution's initial decision not to file charges (the police and the prosecutor apparently believed that the defense would be raised, and that the prosecution would not be able to overcome it). But from that point on, the defense did not invoke it -- they did not ask for a pre-trial hearing, nor did they ask the jury to consider it. Rather, the defense relied on being able to convince the jury that the victim was the aggressor and had pinned the defendant to the ground, where he was pummeling him, when the defendant shot him. In this version of events, the option of escape was not a factor, so invoking the stand your ground defense wasn't necessary (remember, the hallmark of the stand your ground defense is that a defendant need not retreat even when a safe avenue of retreat is apparent). Instead, the defense relied on the classic definition of self defense: A reasonable response to life-threatening behavior by someone else.

Consult an Attorney

If you are charged with a crime of violence against another person, such as assault or battery, and you believe you were defending yourself or another person, you should consult with an experienced attorney who is familiar with the criminal law in your state. Even a misdemeanor charge of assault or battery can significantly impact your life. You could be sentenced to time in jail or prison and placed on probation or parole. A conviction for this type of crime also becomes part of your permanent record. Employers and landlords now regularly run background checks on potential employees and tenants; a conviction for a violent crime could cause an employer to reject you or a landlord to decline to rent to you. An attorney can investigate and analyze your case and determine whether the facts support a claim of self-defense according to your state's laws.

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