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The "Stand Your Ground" Statute: Not a Criminal Law But a Political Statement

by Professor Will Huhn on March 24, 2012

in Criminal Law,Wilson Huhn

I don't wish to comment specifically on the killing of Trayvon Martin until the investigation has been completed.  It now appears that this matter has been turned over to capable state and federal investigators.  Once all the facts are established there will be time to express opinions about that specific case.  However, the state statute that local police relied upon in refusing to make an arrest should be examined.  The law is deeply flawed and should be repealed.

The statute that Sanford, Florida, police invoked as justification for the killing of Trayvon Martin was enacted by the Florida legislature in 2005.  This NRA-sponsored law permits people to "shoot first" if they are afraid of someone in the streets.  At the time the opponents of the law warned that it would provoke more violence.  See Katie Sanders, Tampa Bay Times, Democrats warned about 'stand your ground' in 2005.  They were right.  Since the enactment of the law justifications for these kinds of killings are up nearly three-fold in Florida.  See CBS Miami, Deaths Nearly Triple Since âStand Your Groundâ Enacted.  Now congressional lawmakers want to extend this law to the entire country.  Bad idea.  We don't need a law that excuses "human hunting."

Here is the Florida law on self-defense. I have included both Section 1 and Section 3 here.  Section 1 deals with self-defense in the home.  Section 3 deals with self-defense anywhere else.  The problem is with Section 3:


776.013âHome protection;  use of deadly force; presumption of fear of death or great bodily  harm.â
(1)âA person is presumed to have  held a reasonable fear of imminent peril of death or great bodily harm to  himself or herself or another when using defensive force that is intended or  likely to cause death or great bodily harm to another if:
     (a)âThe person against whom the  defensive force was used was in the process of unlawfully and forcefully  entering, or had unlawfully and forcibly entered, a dwelling, residence, or  occupied vehicle, or if that person had removed or was attempting to remove  another against that personâs will from the dwelling, residence, or occupied  vehicle; and

     (b)âThe person who uses defensive  force knew or had reason to believe that an unlawful and forcible entry or  unlawful and forcible act was occurring or had occurred.

(3)âA 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.


Section 1 of the law makes sense.  People have the right to defend their homes and vehicles from being invaded.  Furthermore, the terms that appear in Section 1 are carefully defined in Section 2 and Section 4 of the law which I have not included. There is not much vagueness or ambiguity about the provisions that justify self-defense in the home.

But Section 3 is another story.  Notice how broadly Section 3 of the law is written.  It applies to any person "who is not engaged in an unlawful activity."  It applies to "any other place where he or she has a right to be."  There is "no duty to retreat."  The person "has the right to stand his or her ground."

At first blush, this sounds wonderful.  The law seeks to protect our right to individual liberty – to go where we want to go and to do what we want to do so long as we are not breaking the law.

But this is not the usual kind of criminal law.  Every other criminal law that I am aware of is composed of neutral terms that carefully and dispassionately describe specific conduct and states of mind that constitute criminal behavior. Other criminal laws do not "make a statement."  This one does. This statute is not so much a criminal law as it is political manifesto or a moral imperative. It is an indorsement of a particular "image" or "role" of the individual as a heroic figure.

What does it mean to "stand your ground" in daily life?  In the context of warfare, the term is clear. If we are ordered to "stand our ground" then we will hold our position like Jackson at Bull Run ("There is Jackson standing like a stone wall!") or  Prentiss at Shiloh ("Hold the sunken road at all costs!").

This is not really a criminal law. It is rather an attempt to celebrate a particular conception of "honor."  It does not carefully and dispassionately define its terms. Instead, it invokes memories and emotions; it reminds us of the sacrifices of our ancestors; it seeks to glorify violence and, in particular, the use of guns in the defense of justice. The key language contained in the statute – STAND YOUR GROUND – would be a terrific title for a war movie or a western, but it makes lousy law.

We don't know yet what really happened between Trayvon Martin and George Zimmerman.  Even if we did, though, this law is so vague that it makes it difficult to prosecute killings in the street.

The statute could be interpreted to permit me to patrol the public streets at night, to follow someone, and to speak to him. That is all lawful behavior. I would be in a place where I have a right to be and I would not be breaking the law. In fact, both of us would be in a place where we have a right to be, and neither of us would be breaking the law. If the other person is armed, or if I reasonably mistake a bag of skittles or a set of keys for a weapon I might reasonably feel threatened. And I could kill him. Or he could kill me. And neither one of us (if either survives) could be prosecuted.

The "stand your ground" law coupled with "concealed carry" is a prescription for blood in the streets. Police and prosecutors oppose the law – but it is popular with criminal defendants. See Alexia Campbell, Sun-Sentinal, More accused hope to use 'Stand Your Ground' law to gain freedom.

The persons responsible for the enactment of this statute like Florida lawmaker Dennis Baxley (who co-sponsored the measure) and former Florida Governor Jeb Bush (who signed it into law) now claim that the law does not apply in the Trayvon Martin case – that it was never intended to justify a killing under those circumstances.  See Jeff Glor, CBS Evening News, Fla. "Stand Your Ground" author may seek changes; Washington Post: Former Fla. Gov. Jeb Bush: Self-defense law he signed doesnât cover Trayvon Martinâs death.

That may be true. Too bad they didn't think of that before they enacted this hopelessly vague "honor statute" into law.

The most serious problems with ambiguous laws such as this are the risk that the law will not be fairly enforced and the risk that the public will not perceive that the law is being fairly enforced. Laws like this make it easy to "selectively enforce" the law. Racial and ethnic minority communities are rendered completely at the mercy of local police and prosecutors. It is because of that risk of selective enforcement that outside investigators were brought into this case. But that is not a sufficient solution. It simply isn't feasible to monitor the decisions of police and prosecutors in every state and every local community where "stand your ground" is now the law. Laws like this challenge our faith in the rule of law. Repeal it.

For additional commentary, see Christian Science Monitor, Professor: Florida 'Stand Your Ground' law vague (featuring Columbia Law Professor Jeffrey Fagan); New York Times Opinion Pages, Killing, With the Law on Your Side (featuring commentary from seven contributors).

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.


larry d. March 25, 2012 at 1:10 am

Something from a practicing attorney:

The dude's a fantasy poet too!

Dave March 25, 2012 at 10:45 pm

Where does the "duty to retreat" come from?

I suspect that laws like this are passed because of cases where the victim was treated as the bad guy.

Similarly, truth in sentencing laws are awkward, bulky and can have unintended consequences.

If the courts were getting the job done right in the first place, the legislature might not feel inclined to pass laws like these.

SHOEPRINTS March 27, 2012 at 12:47 am

The writer teaches constitutional law in Akron Ohio. He surely feels different about the constitution that others. Like the legislature of Florida who passed the law. Hopefully he never has a home invasion where stopping to ask questions costs him or a family member his life. May he never know what it's like to be so intimidated by bad guys with weapons, sometimes just fists, running so rampant and law free, that you can't take your family out without worrying if you'll get jacked or robbed. These laws protect people using self defense from having to go through the entire process of the burden of proving fear of death or bodily harm. It is assumed. But let me tell you, these laws are known by the bad guys as well. They know the game changes when laws like this are passed. I would suggest they have an arrest process where a person is processed, then with the DA's approval, be released until a judgement of justifiable homicide or other is handed down.

larry d. March 27, 2012 at 9:41 am

As more information comes in about Trayvon Martin I'm reminded of the brief hubbub surrounding Obama's connection to the "Critical Black Theory" law professor a couple weeks ago.

Trayvon's twitter handle (No Limit Nigga) and behavioral issues seem to suggest he was getting the message that our nation's laws uphold white supremacy loud and clear. And of course the MSM, the president, and the democrat race hustlers have only doubled down on that message in the wake of his death. That message is certainly politically valuable to the democrat party, but you'd think some on the left would see at some point that it's killing young black men.

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