How Stand Your Ground Relates To George Zimmerman

There's a counter-intuitive notion taking hold out there that the George Zimmerman's case had nothing to do with Stand Your Ground. This argument is most explicitly made by Jacob Sullum in a column entitled, "Sorry, The George Zimmerman Case Still Has Nothing To Do With Stand Your Ground." Here's Sullum:

The story that George Zimmerman told about his fight with Trayvon Martin, the one that yesterday persuaded a jury to acquit him of second-degree murder and manslaughter, never had anything to do with the right to stand your ground when attacked in a public place. Knocked down and pinned to the ground by Martin, Zimmerman would not have had an opportunity to escape as Martin hit him and knocked his head against the concrete.

The initial decision not to arrest Zimmerman, former Sanford, Florida, Police Chief Bill Lee said last week (as paraphrased by CNN), "had nothing to do with Florida's controversial 'Stand Your Ground' law" because "from an investigative standpoint, it was purely a matter of self-defense." And as The New York Times explained last month, "Florida's Stand Your Ground law...has not been invoked in this case." The only context in which "stand your ground" was mentioned during the trial was as part of the prosecution's attempt to undermine Zimmerman's credibility by arguing that he lied when he told Fox News host Sean Hannity that he had not heard of the law until after the shooting. During his rebuttal on Friday, prosecutor John Guy declared, "This case is not about standing your ground."

I think this is overly broad. It's very true that Zimmerman's narrative holds that he never had the opportunity to retreat, and thus SYG was not relevant to his specific defense. It is certainly not true that "the only context" in which SYG came up was from the prosecution. As I wrote yesterday, SYG is explicitly mentioned in the jury instructions:

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.

Sullum says how the jury instructions apply "to the facts of this case." But this is changing the argument. Bill Lee's decision to not arrest George Zimmerman also don't apply to the facts of this case. They apply to Sullum's stated argument--"The George Zimmerman Case Had Nothing To Do With Stand Your Ground."

I do not mean to be pedantic here. The decision to not arrest George Zimmerman is critical in understanding why Trayvon Martin is a national cause célèbre and Justin Patterson is not. In looking at that decision, it is important to understand the changes enacted in Florida law in 2005, under SYG. Among those changes--making it very difficult to arrest someone who claims self-defense:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

The language here is interesting. It says that making a claim of self-defense grants immunity from arrest. It then adds exception for probable cause, which is the standard by which police make an arrest anyway. It then finishes by noting that should the court find the that the claimant is immune to prosecution, they can recover from the state all expenses. I'm not clear on all of this because the language is so tangled. But my reading is that the pre-trial hearing is where such an immunity from from prosecution determination would be made. If immunity is found, then the state is on the hook for all the claimants bills. I don't see anything here that excludes people arguing that they could not retreat (like Zimmerman) from such a hearing.

This language was added to Florida's law books in 2005, exactly at the time that Florida put codified "stand your ground." They were part of the same reform, and have always been understood to be as such--even by Stand Your Ground's proponents. :

Marion Hammer, the NRA's Florida lobbyist, said the measure was needed to prevent authorities from harassing law-abiding people with unwarranted arrests. "The law was written very carefully and it means what it says: You have a right to protect yourself," she said....

"There is nothing wrong with the law," she said. "Some of the state attorneys and law enforcement officers are complaining because they can't just go arrest everybody and sort it out later."

Sullum criticizes Ben Jealous for inveighing against Stand Your Ground, but correctly invoking the set of laws by the name which they have long been known.

It's very nice that Bill Lee now claims that the decision not to arrest George Zimmerman had nothing to do with SYG and its attendant reforms. But Bill Lee's statements today, must be weight against what the city of Sanford actually said at the time:

"Zimmerman provided a statement claiming he acted in self defense, which at the time was supported by physical evidence and testimony," the letter, signed by Sanford City Manager Norton Bonaparte Jr., says. "By Florida Statute, law enforcement was PROHIBITED from making an arrest based on the facts and circumstances they had at the time."

The killing of Trayvon Martin was not the first time law enforcement officials in Florida reached this conclusion:

It took Hillsborough County deputies two days to arrest Trevor Dooley, the school bus driver accused of shooting and killing a Valrico Air Force veteran on a basketball court. The arrest on manslaughter charges may have been complicated by the state's "stand your ground" law, which allows the use of lethal force if a person feels threatened by another with great bodily harm. The law makes it more difficult to make arrests and prosecute assailants when there has been a fight.

The thing to understand here is that Stand Your Ground laws do not exist in some segregated section of Florida's criminal code. They are not bracketed off from the rest of Florida's "standard" self-defense laws. Stand Your Ground laws are integral to the very meaning of self-defense in the state.

I do not think you can argue that Zimmerman would have been convicted if not for Stand Your Ground. But you certainly can't argue that the law had "nothing" to do with this case. And you most certainly can argue that SYG reduced the chances of Zimmerman being arrested. If that arrest had happened we probably would not be talking about this case right now.

MORE: Via Andrew, here is a juror directly (if mistakenly) citing Stand Your Ground as part of why they acquitted:

COOPER: Because of the two options you had, second degree murder or manslaughter, you felt neither applied?

JUROR: Right. 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


Again, it is simply not supportable to say that Stand Your Ground had "nothing" to do with this case.