[NOTE CORRECTION] New York Times Editorial vs. News Analysis

[NOTE: Having read the post-trial Anderson Cooper 360 interview of one of the jurors, I now think I’ve erred in one of the criticisms of the editorial (the one labeled 1 below); my apologies on this to the editorialists and to our readers. For more on the details, please see this follow-up post. For more on the very interesting question of provocation and the self-defense defense (a separate question from that raised by the post, but one that I think many people confuse with the Stand Your Ground issue), see this post.]

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[Posted before the NOTE posted above: Note the FURTHER UPDATE below, which discusses a defense of the Times Editorial, and the reason I’m unpersuaded by this defense.]

From yesterday’s New York Times “News Analysis” item:

Soon after Mr. Zimmerman was arrested, there appeared to be a chance that the defense would invoke a provision of Florida self-defense law known as Stand Your Ground. Ultimately it was not part of Mr. O’Mara’s courtroom strategy, though it did play a pivotal role immediately after the shooting.

The provision, enacted by the Florida Legislature in 2005 and since adopted by more than 20 other states, allows people who fear great harm or death not to retreat, even if they can safely do so. If an attacker is retreating, people are still permitted to use deadly force.

The provision also allows a defendant claiming self-defense to seek civil and criminal immunity at a pretrial hearing.

Mr. O’Mara said he did not rely on Stand Your Ground as a defense because Mr. Zimmerman had no option to retreat. A pretrial immunity hearing, which prosecutors said they had been expecting, would only have divulged his case. So Mr. O’Mara gambled on a jury trial.

“That was a brilliant strategic move,” Mr. Sharpstein said. “It precluded the state from previewing the defense.”

But Stand Your Ground did play a role when the police were contemplating whether to charge Mr. Zimmerman, said Tamara Lave, an associate professor of law at the University of Miami.

Under the law, if the police believe there is probable cause that someone acted in self-defense, as Mr. Zimmerman said he had, they are not allowed to make an arrest, she said. The self-defense claim also may have affected how thoroughly the police interviewed witnesses, preserved the crime scene and screened Mr. Zimmerman.

Eventually, the police arrested Mr. Zimmerman, but only after Gov. Rick Scott of Florida had appointed Ms. Corey as prosecutor.

Sounds generally correct, except that the statement that Stand Your Ground “was enacted by the Florida Legislature in 2005 and since adopted by more than 20 other states” mistakenly suggests that the law has recently changed in over 20 states, in response to Florida’s actions; as Dan Kahan (Cultural Cognition) notes, many of those states have already long been no-duty-to-retreat (i.e., “stand your ground”) statutes, and indeed even as early as 1986 the leading LaFave & Scott criminal law treatise reported that the stand-your-ground position was the majority rule among American states. (I’m also skeptical that the Stand Your Ground law materially influenced “how thoroughly the police interviewed witnesses, preserved the crime scene and screened Mr. Zimmerman,” but I’m not sure, so I’ll set aside that aside for now.)

But here’s what the yesterday’s New York Times editorial says:

The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of the now-notorious Stand Your Ground provision in Florida’s self-defense law. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.

But:

(1) As the news analysis points out, the Stand Your Ground law didn’t influence the jury instructions (again, because under the defense theory of the case Zimmerman had no safe avenue of retreat, so the stand-your-ground vs. duty-to-retreat question was irrelevant — even in duty-to-retreat jurisdictions defendants may use deadly force to defend themselves when they can’t safely retreat).

(2) The general principle that “a person may use deadly force if he or she ‘reasonably believes’ it is necessary to prevent death or great bodily harm” is not an aspect of Stand Your Ground laws as such. Rather, it is the rule in all 50 states, and has been the rule throughout American history.

The Times editorial board should talk a bit more, it seems to me, with their news analysts — and, more broadly, with people who are actually knowledgeable about self-defense law. Thanks to Louis Offen for the pointer.

UPDATE: The statement in the News Analysis item that, “if an attacker is retreating, people are still permitted to use deadly force,” is also potentially misleading, to the extent that it makes people think that a defender can kill someone who is running away and thus is no longer threatening imminent death or serious bodily injury. The Stand Your Ground law does not eliminate requirement of reasonable fear of imminent death or serious bodily injury, so if someone who was beating me sees me take out a gun and starts running away, I am no allowed to shoot him unless I have some other basis to reasonably fear serious bodily injury from him, e.g., that he’s running to get his own gun that’s a few yards away. But that is not related to this particular case, and certainly doesn’t justify the error in the Editorial. [UPDATE TO THE UPDATE: As commenter Tamara Lave noted, the “castle doctrine” provision of the Stand Your Ground law does allow the use of deadly force when the target has unlawfully and forcefully entered a home or occupied vehicle, regardless of whether he is fleeing, see Hair v. State (Fla. Ct. App. 2009), but that is not at all implicated on the facts of this case.]

FURTHER UPDATE: Various commenters have argued that the Editorial was correct in arguing that “The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of the now-notorious Stand Your Ground provision in Florida’s self-defense law,” because the instructions did indeed include a no-duty-to-retreat provision, so that the jury was “asked” this by the court though not by the defense:

In deciding whether George Zimmerman was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, George Zimmerman must have actually believed that the danger was real.

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.

Before the law was enacted, the standard instructions provided,

In deciding whether defendant was justified in the use of force likely to cause death or great bodily harm, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of force likely to cause death or great bodily harm, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force. The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.

But as I understand it — and I take it that this is why the News Analysis in the same New York Times edition minimized the relevance of the Stand Your Ground law to the trial — the prosecution’s factual theory wasn’t that Zimmerman could have retreated while he was being beaten. In “the circumstances by which he was surrounded at the time [Zimmerman’s deadly] force was used” (a phrase that appears in both the old and new instructions), Zimmerman was apparently rolling around on the ground in the middle of a fight with Martin. Even under the old instruction, if Zimmerman believed he was in danger of great bodily harm, he wouldn’t have had to retreat so long as any attempt to retreat “would have increased his own danger” (and I know of no prosecution evidence that could have established this, much less established it beyond a reasonable doubt). And if he didn’t believe he was in danger of great bodily harm, then even under the new instruction he couldn’t use deadly force.

Now the prosecution did try to argue that Zimmerman provoked any use of force by Martin, and thus couldn’t use deadly force to defend himself against such force that he himself provoked. That’s not relevant to whether “he could have avoided the need to use that force” in “the circumstances by which he was surrounded at the time the force was used” (again, I’m quoting the old instruction here), but it is relevant to the separate “provocation” exception, about which I will blog shortly.

But this “provocation” exception to the right of self-defense is also the same under the old and the new regime; the Stand Your Ground law didn’t eliminate or modify that exception. So that’s why I continue to think that the Times News Analysis is correct as to the Stand Your Ground defense not being used at trial, and the Times Editorial is incorrect in suggesting that this defense affected the jury’s analysis.

And, as I noted above, the Times Editorial’s suggestion that it is the Stand Your Ground law that set up the reasonable belief threshold (“Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she ‘reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome”) is just flatly wrong. It is not “[u]nder that law” that a person may use deadly force if he reasonably believes it’s necessary to prevent death or great bodily harm; it is under the law of all fifty states, and the law as it was in force in Florida even before the Stand Your Ground statute was passed.