Distr:

Open

20 September 2012

National Black Law Students Association

Judicial Advocacy Team

STAND YOUR GROUND: History, Development, and Significance of the

Trayvon Martin Case

Contents
I.

Introduction

II.

The English Common Law

III.

Stand Your Ground and Trayvon Martin

IV.

Stand Your Ground and Minority Defendants

V.

Model Legislation

I. Introduction
It is undoubtedly distasteful to retreat; but it is ten times more distasteful to kill.
Joseph H. Beale, Jr. 1

On the evening of February 26, 2012, in Sanford, Florida, George Zimmerman shot and killed
Trayvon Martin. Zimmerman, a neighborhood watch captain, told police Martin had attacked
him and that he had only shot back in self-defense. After being detained and questioned,
Zimmerman was released because police said they found no evidence to contradict
Zimmermans self-defense claim. The events of that night soon came to the forefront of the
nations attention, shining a spotlight on an area of Florida law known as Stand Your Ground,
which eliminates the common-law duty to retreat and broadly expands the self-defense immunity
known as the castle doctrine. The law tilts so strongly in favor of those using deadly force in
self-defense that critics have suggested that a better name for it would be Shoot First or The
Right to Commit Murder Law. 23

As America witnessed Stand Your Ground (SYG) at work in the George Zimmerman case,
questions were raised as to how such a law could come to pass. SYG seemingly stacks the deck
against law enforcement and potentially-faultless shooting victims like Trayvon, victims who are
no longer alive to dispute the killers rendition of facts.

As said by a Sanford detective

investigating Trayvons shooting: The best evidence we have is the testimony of George
Zimmerman, and he says [Trayvon] was the primary aggressor in the whole event, [and]
everything I have is adding up to what he says."

This paper documents the development of Stand Your Ground and examines how SYG, when
combined with racial biases, has a disparate impact on minorities, both when minorities are the

Retreat from a Murderous Assault, 16 HARV. L. REV. 567, 581 (1903).

See Jason W. Bobo, Following the Trend: Alabama Abandons the Duty to Retreat and Encourages Citizens to
Stand Their Ground, 38 CUMB. L. REV. 339, 363 (2007).
3
Stand Your Ground terminology employed herein because of the predominance of this term in discussing the
laws in academic and news contexts, not as an indication of endorsement or support.
2

victims of crime - as in the case of Trayvon Martin - and as applied when a minority defendant
faces homicide charges. Part II will discuss the historical context around the development of
Stand Your Ground laws. Part III discusses the events of the Trayvon Martin case in more
detail, including the role played by race. Part IV traces case studies of minority defendants with
stories similar to Zimmermans who were unable to assert the self-defense immunity. Yet, this
paper serves not only to lambast Stand Your Ground laws, but also to correct them. Part V
proposes model legislation that can be enacted by state legislators so as to roll-back SYG or to
prevent its implementation.

II. The English Common Law

When SYG laws were advocated in Florida and other states, their proponents marketed them as a
restoration of a natural right, arguing [t]he duty to retreat has not always been a part of the
common law. Centuries ago, any man who was feloniously attacked without provocation could
stand his ground anywhere, not retreat, and use deadly force if necessary to repel the attacker. 4
Under this justification, SYG laws were a mere codification of Americas inherited tradition of
the ancient English common law.

Historical context highlights how misguided such SYG

proponents are. There is a long tradition in criminal law of allowing self-defense only when
reasonably necessary, and a well-reasoned, black-letter tradition of a duty to retreat when
attacked outside ones home. Stand Your Ground laws represent a radical break with these
traditions, the result of political demands by right-leaning activists. These laws have been
associated by scholars with vigilantism. 5

Other proponents of SYG laws advanced a competing common law argument: that the early
conditions of America forced the eschewal of the English doctrine and the creation of a new
concept of self-defense. 6 From the battlefield to the baseball field, Americans are loath to

Senate Staff Analysis and Economic Impact Statement, *2 , Florida Staff Analysis, S.B. 436, 2/25/2005.
See e.g., Bobo, supra note 2 at 364 (2007) (quoting president of National District Attorneys Association Paul
Logli: SYG laws basically give citizens more rights to use deadly force than we give police officers, and with less
review.).
6
David Collins, The Duty to Retreat, 3 CRIM. JUST. Q. 81 (1975).
5

retreat. 7 Thus, the United States repudiated the English preference for retreating instead of
fighting during the 1800s as the rebellious nation sought to distinguish American bravery from
British cowardice. 8

These contradictory interpretations of the common law tradition are at the heart of the debate
over Stand Your Ground laws. However, an examination of both traditions finds that neither
fully supports the claims of SYG proponents.

a. The Duty to Retreat

From the beginning of the jurisdiction of the kings courts over crime to the reign of Edward,
the common law imposed a duty amongst all citizens to retreat to the wall before killing in
self-defense. 9 The crown held a monopoly on the legitimate use of force. For though in cases
of hostility between two nations it is a reproach and piece of cowardice to fly from an enemy, yet
in cases of assaults and affrays between subjects under the same law, the law owns not any such
point of honour, because the king and his laws are to be the vindices injuriarum, and private
persons are not to be trusted to take capital revenge one of another. 10
The common law recognized two types of homicide: justifiable and excusable. 11 Justifiable
homicide was homicide conducted pursuant to a warrant or other form of writ by the King
homicide done in execution of the law. 12 These scenarios were limited, and only where the
crime was punishable by death. Justifiable homicide was a defense to robbery, for example, but
not attempted murder or rape, and only when to refrain from killing the malefactor would
necessarily leave him free to commit his crime and escape. 13 However, excusable homicide
that committed by a person by misfortune, or in his own defence was not permissible at

Steven P. Aggergaard, Note, Retreat from Reason: How Minnesota's New No-Retreat Rule Confuses the Law and
Cries for Alteration--State v. Glowacki, 29 WM. MITCHELL L. REV. 657, 659 (2002).
8
Id.
9
RICHARD MAXWELL BROWN, NO DUTY TO RETREAT: VIOLENCE AND VALUES IN AMERICAN HISTORY AND
SOCIETY 5 (1991).
10
Beale, supra note 1 at 574.
11
4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 176, 178-79 (1769); Beale at 568.
12
Beale, supra note 1 at 572.
13
See id. at 572; BLACKSTONE, at 181-82.
3

common law. 14 A person committing homicide was still deemed culpable for their action and
the law required a conviction and a forfeit of chattel, unless pardoned by the King. 15 A pardon
was granted only after the defendant had retreated to the wall and where self-defense was
found to be reasonably necessary. 16

As the law developed, pardons for excusable homicide were granted as a matter of course
issued by the Chancery Clerk and signed in the Kings name after the accused was indicted and
Justices performed a brief inquiry into the evidence supporting homicide se defendendo. 17 The
common law grew to acknowledge that the law affords each man absolute protection of his
home, waiving the duty to retreat and culpability for homicide when one is attacked in their
castle, a belief thus known as the Castle Doctrine. 18 However, anyone who was feloniously
attacked without provocation could not stand his ground anywhere, decline to retreat, and
instead use deadly force to counter the attack, as SYG proponents claimed.

b. A New American Common Law?

The other intellectual tradition that explains the emergence of Stand Your Ground laws is the
frontiersman myth, the idea that the unique conditions of America created a new common law
that expressly rejected the English duty to retreat. This rejection had its origins in the experience
of the burgeoning American Republic during the Revolutionary War. 19

Self-defense was not originally recognized as a valid defense to homicide at common law.
However, as the American consciousness began to be shaped by expansion into the Midwest and
Southwest, the split in tradition grew as well. 20 Eastern and Southern states continued the
English tradition. In 1847, Alabama endorsed the duty to retreat, stating that [t]he common law
of this State, on the subject of homicide is derived from, and the same as, the common law of
14

Beale, supra note 1 at 569.

Id.
16
P. Luevonda Ross, The Transmogrification of Self Defense by National Rifle Association-Inspired Statues: From
the Doctrine of Retreat to the Right to Stand Your Ground, 35 S.U. L. Rev 1, 6 (2007-2008); BROWN, at 3-4.
17
Beale supra note 1 at 570-71.
18
Id. at 569.
19
BROWN, supra note 9 at 6.
20
Collins, supra note 6.
15

England, and wherever that law requires the person assailed to decline combat, or to retreat,
before he will be excused in taking the life of his adversary, our law requires the same. 21
Tennessee courts injected reasonableness in their analysis of self-defense without explicitly
acknowledging the duty to retreat, acquitting where the defendant had literally retreated to the
wall before acting. 22 New Jersey courts held that [i]n some cases an accused is bound to retreat
. . . If he can retreat with safety[,] he is bound to adopt the course. 23

However, courts in the American frontier diverged, repudiating the English tradition. The
frontier at that time was far from the romanticized notions of a John Wayne film, but it was
chock-full of farmers, ranchers, miners, prostitutes, and criminals. Many of these people left the
relative comforts of the more-developed East Coast to pursue their happiness as homesteaders,
living off the land. A hard-scrabble existence wrought hard-scrabbled men. In Ohio, it was said
that a true man, who is without fault, is not obliged to fly from an assailant, who . . . maliciously
seeks to take his life or do him enormous bodily harm. 24 In Indiana, the court assessed that the
tendency of the American mind seems to be very strongly against the enforcement of any rule
which requires a person to flee when assailed. 25

At the turn of the twentieth century, the Supreme Court, interpreting Texas law, addressed the
diverging trends in Brown v. United States.26 Writing for the Court, Justice Oliver Wendell
Holmes acknowledged that the repudiation of the duty to retreat came from a misinterpretation of
the English common law, but that [t]he law has grown, and even if historical mistakes have
contributed to its growth, it has tended in the direction of rules consistent with human nature. 27
The common rule that had emerged, according to Justice Holmes, was that [d]etached reflection
cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not
a condition of immunity that one in that situation should pause to consider whether a reasonable

21

Pierson v. State, 12 Ala. 149 (1847).

See e.g., Grainger v. State, 1830 WL 934 (Tenn. Mar. 1830).
23
State v. Blair, 2 N.J.L.J. 346, 348-49 (Essex O. & T. 1879).
24
Erwin v. State, 29 Ohio St. 186, 199-200 (1876).
25
Runyan v. State, 57 Ind. 80, 84 (1877).
26
256 U.S. 335, 343 (1921).
27
Brown, 256 U.S. at 343.
22

man might not think it possible to fly with safety or to disable his assailant, rather than to kill
him. 28

While seemingly upholding an inherent right to self-defense, and perhaps even the right to stand
ones ground, Justice Holmes couched the exercise of that right on the reasonable belief that a
person is in immediate danger of death or grievous bodily harm. 29 Still, the vagueness and
ambiguity in the Brown decision led to a continued disparate interpretation of the common law
between the states.

c. The Statutory Wave of SYG: Rewriting History

Every generation writes its own history.

John Bowman 30

Generally, the common law in the states developed around a general duty to retreat and deescalate the conflict, except when assaulted in the home. 31

Many states codified this

understanding in castle doctrine laws. The common principle was that, outside of the home, a
person assaulted could respond with force that was reasonably proportionate to that received by
the attacker and necessary to dissuade the assault. 32 Deadly force could be met with deadly force
only if a reasonable person would have done the same; less than deadly force required a lesslethal response. Often, this required an attempt to retreat before taking action. Some states
rejected such laws in favor of a more expansive judicial interpretation of the right to self-defense
similar to the later Stand Your Ground laws, if not called that in name. 33

28

Id. at 343.
Id.
30
Jerry W. Knudson, JEFFERSON AND THE PRESS: CRUCIBLE OF LIBERTY xiii (2006).
31
Elizabeth B. Megale, Making Murder Legal: How Laws Expanding Self-Defense Allow Criminals to "Get Away
with Murder" (2010) available at http://works.bepress.com/elizabeth_megale/1/.
32
Id.
33
Id. at 8; see also Judith E. Koons, Gunsmoke and Legal Mirrors: Women Surviving Intimate Battery and Deadly
Legal Doctrines, 14 J.L. & POLY 617, 629 n.41 (2006) (finding that twenty-two American jurisdictions maintain the
duty to retreat; twenty-one jurisdictions impose no duty to retreat before a defendant may resort to deadly force; and
eight jurisdictions occupy middle ground in which retreat is a factor in determining whether deadly force is
justified).
29

Proponents of the law-and-order movement demanded a stricter criminal justice system,

especially in relation to violent and property crime, through stiffer criminal penalties for
offenders and a focus on giving the victims equal rights with the criminal. 34 Alongside longer
terms of imprisonment, mandatory sentencing, and three strikes laws, supporters of law-andorder pointed to cases like Brown to argue that the common citizen could manage his or her
own protection. 35

The dramatic shift to the current codification of the right to stand ones ground occurred in 2005
in Florida. Prior to 2005, Floridas duty to retreat was founded upon a combination of statutory
and common law. 36 In 2003, Florida courts declined to extend the rights recognized by the castle
doctrine to visitors or temporary guests so as to prevent the creation of innumerable castles
that would encourage the use of deadly force in places outside ones own home. 37 Thus, the
doctrine in 2004 was largely settled and comported with the general recognition in most states of
the duty to retreat except if attacked in ones home, business, or automobile. 38

On October 1, 2005, Floridas duty to retreat was abrogated by the passage of the Stand Your
Ground law. 39 The bill was the product of the combined efforts of a former President of and
current lobbyist for the National Rifle Association (NRA), Marion P. Hammer; Florida State
Senator Durrell Peadon; and Dennis Baxley, a member of the Florida House of Representatives.
The NRA sought to manipulate sentiments of vigilantism, claiming that the duty to retreat
created an unfair burden on victims 40 and that the SYG law was intended to allow ordinary
citizens to allow meet force with force. 41 The bill unanimously passed the Florida Senate and

34

Steven D. Walker, History of the Victims Movement in the United States, available at
http://aabss.org/Perspectives2000/f04Walker.jmm.html.
35
Id.
36
Michael Jaffe, Up in Arms Over Floridas New Stand Your Ground Law, 30 NOVA L. REV. 155, 175-76 (2005);
Weiand v. State, 732 So. 2d 1044, 1058 (Fla. 1999) (There is a limited duty to retreat within the residence to the
extent reasonably possible); see also State v. Bobbitt, 415 So. 2d 724 (Fla. 1892); Frasier v. State, 681 So. 2d 824,
825 (Fla. 2d Dist. Ct. App. 1996); Baker v. State, 506 So. 2d 1056, 1059 (Fla 2d. Dist. Ct. App. 1987).
37
State v. James, 867 So. 2d 414, 415-17 (Fla. 3d Dist. Ct. App. 2003).
38
See Koons, supra note 33.
39
S.B. 436, 2005 Sess. (Fla. 2005), codified at FLA. STAT. 776.013.
40
See Robert Tanner, States Adopt Deadly Force Self-Defense Law, BRADENTON HERALD, May 25, 2006, at 4,
available at 2006 WLNR 8950215.
41
Jaffe, at 177; Senate Staff Analysis and Economic Impact Statement, *3, Florida Staff Analysis, S.B. 436,
2/25/2005.
7

was pushed through the Florida House, where it met little resistance. 42 Opponents to the bills
expansive protections were able to amend the original bill only slightly. At the behest of law
enforcement officials concerned over its potential effects on immunity for police officers and
prosecutors, the laws impositions of liability for legal costs incurred for criminal prosecutions
was removed. 43 The bill passed with a strong majority in the Florida House.
The statute modified the common law in five significant ways. 44 It revised Florida statute
section 776.012 - Use of Force in Defense of Person by removing the duty to retreat. 45 The
statute created a presumption of reasonable fear of imminent peril of death or great bodily
harm, expanded the protection of the castle doctrine to guests of a homeowner and other
temporary residences, provided immunity from criminal prosecution and civil action, 46 and
established a general prohibition against arresting an individual for the use of such force without
probable cause that the use of force was unlawful. 47

After success in Florida, the American Legislative Councils (ALEC) Civil Justice Task Force
adopted S.B. 436 as the basis for its model legislation for gun control laws. 48 The combined
efforts of interest groups like ALEC, the NRA, and gun-sympathetic state legislators led to early
and easy successes in passing the law in both Alabama and South Carolina. 49 Over the course of
the next seven years, other states passed copycat laws that adopted the Florida/ALEC model with
little or no modification. SYG laws were designed to take the scales of justice that were out of
balance and tilted towards the criminal and give them back to citizens to protect themselves,
said one proponent, Alabama Attorney General Troy King. 50
42

Though self-defense claims

Daniel Michael, Florida's Protection of Persons Bill, 43 HARV. J. LEGIS. 199 (2006).
Among the law enforcement officials lobbying against the changes proposed in S.B. 436 were the National
District Attorneys Association, the Florida Prosecuting Attorneys Association, and police chiefs from cities
including Miami and St. Petersburg.
44
Senate Staff Analysis and Economic Impact Statement, *3-5 , Florida Staff Analysis, S.B. 436, 2/25/2005.
45
FLA. STAT. 776.012.
46
FLA. STAT. 776.032.
47
FLA. STAT. 776.032.
48
Brendan Fischer, ALEC Ratified the NRA-Conceived Law That May Protect Trayvon Martin's Killer, PR WATCH,
March 21, 2012 available at http://www.prwatch.org/news/2012/03/11366/alec-and-nra-behind-law-may-protecttrayvon-martins-killer.
49
Ross, supra note 16, at 19.
50
Jason Morton, Critics Say Defense Law Will Create Vigilantes: Supporters Say Law Gives Residents Power to
Protect Themselves, TUSCALOOSA NEWS, Aug. 13, 2006,
http://tuscaloosanews.com/apps/pbcs.dll/article?AID=/20060813/NEWS/608130380/1007.
43

nearly tripled in the wake of SYGs passage, it was not until the death of Trayvon Martin that
Stand Your Ground garnered national scrutiny and criticism. 51

III. Stand Your Ground and Trayvon Martin

a. Factual Background
Trayvon Martin's tragic shooting has been the topic of national discussion. Though the case is
ongoing, certain key facts are clear at this writing. Martin's killer, George Zimmerman, was
carrying a loaded and concealed semi-automatic pistol as he performed his neighborhood watch
duties on February 26, 2012. Zimmerman called police dispatch from his vehicle to report a
suspicious person in a suburban gated community named Retreat View. 52 That person was
Trayvon Martin.
Zimmerman claimed that Martin looked like he was on drugs. 53 After a brief discussion about
the location of the incident, he told the dispatcher that Trayvon was walking around with his
hand in his waistband . . . and hes a black male. 54 Zimmerman told the dispatcher that Trayvon
started running, so Zimmerman decided to get out of the vehicle. 55 Zimmerman was told we
don't need you to do that. 56 He defied this advice and continued to pursue Martin. Trayvon was
on the phone with his girlfriend when he noticed Zimmerman following him. 57 She heard him
say what are you following me for, then the phone was dropped. An altercation occurred, and
Martin was fatally wounded. It was later revealed that Martin was returning from a convenience
store, where he had purchased a bag of Skittles and a can of iced tea. He was unarmed.

The Trayvon Martin case is one example of the way that racial prejudice can ultimately be
excused by the low bar required by SYG laws, leading African-Americans to be victimized.
51

Deaths Nearly Triple Since Stand Your Ground Enacted, CBS MIAMI. (Mar. 20, 2011),
http://miami.cbslocal.com/2012/03/20/deaths-nearly-triple-since-stand-your-ground-enacted/.
52
Smith, Anna Marie, Deadly Force and Public Reason (2012), THEORY & EVENT (Forthcoming, 2012).
http://ssrn.com/abstract=2072355.
53
Id. at 1.
54
Id. at 2.
55
Id.
56
Id.
57
Parker Wallace, Georgias Stand Your Ground Law, GPB NEWS (May 7, 2012),
www.gpb.org/news/2012/05/07georgias-stand-your-ground-law.
9

Even with substantial evidence showing that Zimmerman was the first aggressor, the police said
they . . . found no evidence to dispute Mr. Zimmermans claim of self-defense, despite the fact
that Zimmerman brought a firearm to a fistfight. 58 The police documented Zimmermans
injuries but released him before interviewing neighbors who witnessed the incident. Police did
not test Zimmerman for alcohol or drugs, nor did they run a criminal background check on him.
Zimmerman, who maintains that he acted in self-defense after he was attacked by Martin, has
now been charged with second-degree murder. However, these charges came weeks after the
shooting, and only after Martin family attorneys, including Benjamin Crump, persuaded the
national media to cover the case, which resulted in much controversy.

b. The Role of Race

In Deadly Force and Public Reason, Anna Marie Smith explores role that race plays in
justified self-defense. 59 According to Smith, Zimmerman decided that Trayvon Martin did not
belong in a white suburban area so he must be one of the young black men who, according to
local rumor, were responsible for local break-ins. 60 The six week delay in procedure is but one
element in a long list of serious failures on the part of the criminal justice system, the Florida
legislature, and, more generally, society as a whole, that contributed to Martins death and the
violation of his rights. 61

If Sanford police had performed a full and complete investigation they could not have
determined that Zimmerman was entitled to the presumption of immunity. Smith discusses two
potential explanations for the racially biased conclusion the police came to that evening. First,
society recognizes that different races are entitled to equal protection under an impartial system,
but justice fails to be color blind because our basic structural institutions, such as the
Constitution, the state and federal legislatures, the police, the public prosecutors, the courts, and

58

Id. at 2; see also Florida Stand Your Ground Law could complicate Trayvon Martin Teen Shooting Case,
MSNBC, (Mar. 20, 2012), available at http://usnews.nbcnews.com/_news/2012/03/20/10780286-florida-standyour-ground-law-could-complicate-trayvon-martin-teen-shooting-case?lite.
59
Smith, supra note 52.
60
Id.
61
Id. at 3.
10

the prison system, lag behind. 62 Those institutions still view black men as criminals involved in
gang or drug activity. Thus, Sanford police were all-too-willing to believe that Zimmerman was
a white man who was seeking to protect a middle-class white neighborhood from a black man
who must have been up to no good.

A second potential explanation is that Americans split themselves into two distinct groups: white
and non-white. 63 As white officers, the police accepted Zimmermans explanation of what
happened because they shared his worldview; thus there was no need to question him about what
he said. 64 Under either of Smiths arguments, the tragic death of Trayvon Martin can only be
explained as a consequence of racial prejudice coupled with a poorly drafted law.

Legal analysis has shown that such self-defense arguments can actually mask racial bias. [S]elfdefense arguments that may seem to work in a benign, race-neutral manner for white America
take on a significantly different meaning in the context of black-white interactions. 65 [R]acial
fears invariably infuse routine judgments in American society about what kinds of acts constitute
a serious danger or what kinds of violent responses should be regarded as reasonable acts of selfdefense. 66 As a result, violent individuals may rely on racial stereotypes about who commits
crime in our society, making no distinction between the guilty and innocent before pulling a
fatal trigger and claiming self-defense. 67

SYG statutes, when combined with racial biases, create a vigilante atmosphere. A hypersensitive
individual driven by stereotypes is likely to interpret everyday acts as menacing or lifethreatening if made by any member of a stereotyped group he fears. Operating under a
reasonable belief that he faces a threat of harm to himself, and a reasonable belief that
deadly force is necessary to defend him, a bias-motivated person in a Stand Your Ground state is
free to shoot first and ask questions later. Such vigilantism has the potential to have the greatest
impact on the preservation of life.
62

Id. at 4 (citing Williams).

Id. at 6 (citing Williams)
64
Id.
65
http://www.americanprogress.org/issues/2012/03/legal_deadly_force.html/print.html.
66
Id.
67
Id.
63

11

IV. Stand Your Ground and Minority Defendants

SYG laws disparately affect minorities in two significant ways. As described above, SYG laws
potentially allow a defendant to escape criminal conviction based on his or her own prejudices
masked as self-defense. It has been said that when you make reasonable fear a legal defense,
racism can become a reasonable defense because reasonable actions are a matter of opinion
and subject to interpretation. 68 Other scholars have opined that part of the reason the law was
proposed and implemented was due to a diminished sense of confidence in the criminal justice
systems ability to protect victims and the perceived discrepancy in the judicial system that
emphasizes the due process rights of defendants over the rights of victims. 69

Yet SYG laws also disparately impact minorities because African-Americans are less likely to be
successful when asserting their right to immunity under the law.

The Tampa Bay Times

conducted a study which determined that defendants who were accused of killing black victims
were acquitted 73% of the time, but those accused of killing white victims were only acquitted
59% of the time. 70 Surprisingly, SYG laws have shown an increase in deaths among Caucasians,
but no corresponding increase among African Americans. 71 The following cases expose how
local law enforcement officers can reflect the biases of the communities they patrol.

///
///
///

68

Wallace, supra note 57; see also Megale, Elizabeth B., Deadly Combinations: How Self-Defense Laws Pairing
Immunity with a Presumption of Fear Allow Criminals to Get Away with Murder, 34 AM. J. TRIAL ADVOC. 105,
129.
69
Chandler B. McClellan and Erdal Tekin, Stand Your Ground Laws and Homicides, NATIONAL BUREAU OF
ECONOMIC RESEARCH (June, 2012), http://www.nber.org/papers/w18187. (citing Steven Jansen and M. Elaine
Nugent-Borakove, Expansions to the Castle Doctrine: Implications for Policy and Practice, NATIONAL DISTRICT
ATTORNEYS ASSOCIATION SYMPOSIUM, 2007.
70
Susan Taylor Martin, Kris Hundley, and Connie Humburg, Race plays complex role in Floridas stand your
ground law, TAMPA BAY TIMES (July 21, 2012), http://www.tampabay.com/news/publicsafety/races-complexrole/1233152.
71
Chandler B. McClellan, Stand Your Ground Laws and Homicides. NATIONAL BUREAU OF ECONOMIC RESEARCH
(August 20, 2012). http://www.nber.org/papers/w18187. Retrieved 8-20-2012
12

a. Case Studies
i. Bronson, Florida: Eric Oliver
On June 12, in Bronson, Florida, a woman and her child were almost hit by a reckless driver. 72
The childs father and another man confronted the driver before he drove off. The men later
heard that the driver was at a friends house nearby. The two men, and at least three others, went
to the home of Eric Oliver, an eighteen-year-old black male, who was at home with his family
when the mob arrived and demanded to speak with the driver. Bronson is a small town located
only about twenty miles from Rosewood, Florida, the site of an infamous 1923 massacre where
lunch mobs executed scores of African-Americans and burnt the town to the ground.

According to Oliver, the group of men lobbied several threats against Olivers mother, who was
confined to a wheelchair. Eric came to his familys defense and fought back. An incident report
drafted by investigating officers stated that witnesses saw Oliver pick up a rock and hit one of
the men in the head, sending him to the hospital. 73 Oliver was subsequently charged with
aggravated assault with a deadly weapon. His bond was initially set at $100,000, but after
grassroots organizers held public demonstrations, the state reduced his bond to $10,000. Finally,
in August of 2012, some six months later, the charges were dropped.

Both Zimmerman and Oliver committed their acts in Florida, in 2012, well after the enactment of
SYG. Zimmerman killed a man; Oliver sent a man to the hospital. So why was Zimmerman
questioned and released, while Oliver was arrested? Could SYG create a perverse incentive to
kill, so there is no one alive to dispute the killers account of facts? Unlike George Zimmerman,
Eric Oliver did not initiate the confrontation with the mob of five men. Even though Oliver may
have used a rock as a weapon, he did not bring a firearm to the altercation, as had Zimmerman.
Perhaps because his victims were still alive to dispute his rendition of the facts, Oliver was
arrested and detained after the incident a fate which Zimmerman escaped. Although justice
may have been served in the end, the time that it took for Oliver to achieve this outcome could be
explained by Smiths argument about worldview. As white officers, perhaps the police could not
72

Stand Your Ground or Ground Invaded?, WCJB-TV, June 22, 2012, http://www.wcjb.com/localnews/2012/06/stand-your-ground-or-ground-invaded.
73
See id.
13

accept Olivers explanation of events over that of his white accusers. When contrasted with the
death of Trayvon Martin, one can see how the strongest explanation for the differing outcomes
can only be racial prejudice coupled with SYG.

ii. The Case of John McNeil

There are a number of other cases where African-Americans were denied the right to assert
immunity, including McNeil v. Georgia. 74 John McNeil hired a contracting company named Epp
Elevations to build a home for his family. 75 The company was owned and operated by Brian
Epp and his wife. 76 As the work progressed, the McNeils found Epp difficult to work with, and
they ultimately decided to close on the home early because of those difficulties. 77 After several
heated confrontations, both parties agreed that work on the home would be completed ten days
after the closing or Epp would lose money for failure to complete the work. 78

Epp later returned to the property and threatened McNeils fifteen-year-old son, LaRon, with a
folding utility knife. 79 LaRon called his father and told him about the strange trespasser. 80
McNeil recognized the voice over the phone and immediately dialed 911. 81 LaRon testified that
when his father arrived, LaRon observed Epp go to his truck and stuff something in his
pocket. 82 McNeil claimed that Epp had the knife in his hand, but an eyewitness did not report
seeing the knife, and it was ultimately found in Epps pocket. The eyewitness observed McNeil
point his gun at Epp and command him to back up. 83 Epp continued to come toward McNeil.84
The evidence established that Epp was less than three feet from McNeil when McNeil fired, and

74

284 Ga. 586, 669 S.E.2d 111 (2008).

Id. at 587, 669 S.E.2d at 113; Rania Khalek, John McNeil Killed a White Man Who Assaulted Him on His
Property[,] But, Unlike George Zimmerman, Hes Serving Life, SALON.COM
http://www.salon.com/2012/04/11/when_stand_your_ground_fails/.
76
Id., 669 S.E. 2d at 113.
77
Id. at 589-90, 669 S.E.2d at 114 (Sears, C.J., dissenting).
78
Id., 669 S.E.2d at 114.
79
McNeil, 284 Ga. at 590, 669 S.E.2d at 114.
80
Id., 669 S.E.2d at 114-15.
81
Id., 669 S.E.2d at 115.
82
Id., 669 S.E.2d at 115.
83
Id., 669 S.E.2d at 115.
84
McNeil, 284 Ga. at 587, 669 S.E.2d at 115.
75

14

Epps hands were not raised at the time that he was shot. 85 McNeil was convicted of seconddegree murder.

The McNeil case is another example of what happens to black defendants when they try to assert
their rights under SYG Laws. McNeil has been called the black George Zimmerman because
of similarities between the cases, 86 but in reality McNeils claim of justified self-defense is far
stronger than the one originally asserted by George Zimmerman. McNeil had no duty to retreat
under the common law because he was defending his family on his own property. 87 McNeil thus
had the right to defend himself under the traditional castle doctrine. The most glaring difference
is that Zimmerman was a Hispanic male accused of killing a black male, and John McNeil was a
black male who was convicted for killing a white man in Cobb County, Georgia.

b.

Stand Your Ground by the Numbers

Contrary to the claims of law-and-order proponents, statistics suggest that SYG laws are
ineffective, and actually increase crime in poor communities which tend to be disproportionately
African-American. In Florida, during the five years preceding the passage of SYG, the average
number of justifiable homicide deaths was 12. 88 The laws caused self-defense claims in Florida
to triple. 89

On a national scale, the number of justifiable homicides has increased from 196 in

2005 to 278 in 2010. 90 SYG laws have also created a corresponding increase in the amount of
litigation required of the state particularly in cases involving murder and other violent charges. 91

Criminals have arguably been the biggest benefactors of the new laws by creating such a weak
barrier to immunity. SYG laws are raised as a defense to protect gang members engaged in gang

85

Id. at 591, 669 S.E.2d at 115-16.

See http://www.theblaze.com/stories/what-if-george-zimmerman-were-black-liberals-think-theyve-found-theanswer-in-georgia/, http://westcobb.patch.com/articles/naacp-wants-murder-case-re-examined-2,
87
Beard v. United States, 158 U.S. 550, 559 (1895).
88
Sen. Chris Smith, Florida Stand Your Ground, SENATORCHRISSMITH.COM (July 21, 2012),
http://www.Senatorchrissmith.com/standyourground/impact.htm.
89
"Deaths Nearly Triple Since 'Stand Your Ground' Enacted". CBS MIAMI (March 20, 2012).
http://miami.cbslocal.com/2012/03/20/deaths-nearly-triple-since-stand-your-ground-enacted/.
90
McClellan, supra n. 3 at 5.
91
Id.
86

15

violence and drug dealers engaged in drug activity. 92 Representative Baxley claimed that the
law does not protect aggressors, but the law is not entirely clear with respect to where
aggression begins. 93 Although one who makes the first physical contact is typically viewed as
the first aggressor, in Chaplinsky v. New Hampshire, 94 the Supreme Court held that fighting
words were aggressive speech that inflict injury or tend to incite an immediate breach of the
peace. 95 Under this definition, was Trayvon Martin the first aggressor when he asked what are
you following me for? Or, as is far more likely, was Zimmerman the first aggressor because he
was the first to introduce deadly force to the confrontation, deciding to disobey the instructions
of the local police and take the law into his own hand? Even if Trayvon defended himself with
his fists, was it not Zimmerman who brought a firearm to a fistfight?

This illustrates the lack of uniformity apparent in the enforcement of Stand Your Ground Laws.
Law enforcement officers did not find the case against George Zimmerman convincing, but they
have found sufficient cause to hold John McNeil. Stand Your Ground laws call for the opposite
result in each case. George Zimmerman did not have a lawful right to pursue Trayvon Martin in
his neighborhood after emergency personnel expressly instructed Zimmerman that they did not
need him to do that. Trayvon Martin was in Retreat View lawfully as a guest as a neighbor.
McNeil had a lawful right to be on his property, but Brian Epps was a trespasser who threatened
his family.

V. Model Legislation

The crime statistics associated with the Stand Your Ground laws are cause for concern. Gang
violence presents a great risk to minority communities; SYG laws could make the situation
worse. A sixteen-year study of Los Angeles County determined that 93% of the 5,541 gang

92

Lizette Alvarez, A Florida Law Gets Scrtiny After a Teenagers Killing, THE NEW YORK TIMES (March 20,2012).
http://www.politifact.com/florida/statements/2012/mar/23/dennis-baxley/crime-rates-florida-have-dropped-standyour-ground/; Klein at 42-43 (citing United States v. Slocum, 486 F.Supp.2d 1104, 1108-09 (C.D. Cal. 2007).
94
315 U.S. 568 (1942).
95
Richard Klein, Race and the Doctrine of Self Defense: The Role of Race in Determining the Proper Use of Force
to Protect Oneself, 30 J. OR RACE GENDER AND ETHNICITY 43.
93

16

related homicide victims were African-American or Hispanic. 96 If SYG laws continue to be

promulgated in state legislatures, gang members could potentially engage in violence with a
decreased likelihood of arrest as long as they are willing to claim that the rival gang initiated the
conflict. Essentially every gang conflict boils down to standing ones ground.

Because SYG law so strongly tilts in favor of vigilantes, the best way to improve the current
state of the law would be to remove the immunity from arrest and the presumption that
reasonable fear existed. 97 These factors thrust law enforcement officers into the role of the factfinderdetermining the reasonableness of the defendants actions. When this happens, the
public runs the risk of individual officers being swayed by their own biases, as it has been argued
happened on the night when George Zimmerman was arrested. But removing these factors
would not eliminate the ability to claim self-defense. There are a number of states with broad
self-defense laws that still require that law enforcement assess the reasonableness of the
defendants actions. 98 Succinctly stated, the [SYG] statute is flawed because it places a greater
power on the right to possess and use a gun than it does on the most fundamental right of all: life
itself. 99

We have chosen the Model Penal Code (MPC) as a baseline for our model legislation because
it is based on the common law, which we have argue was erroneously departed from by
American frontier courts. We have noted the concern of certain segments of society that wish to
move away from the English tradition of retreating to the wall, and instead want to ensure that
one who is lawfully at a location has the right to defend ones position and possessions.
However, we also believe that there is an important balance that must be struck between
preserving human life and protecting ones dignity and home. With that said, we have adapted
provisions from the MPC and other pieces of legislation to reflect a model legislation that we
believe protects life, without disregarding dignity and protection of property.

96

Brenda Maceo, Rise in Gang Violence, USC NEWS (October 5, 1995) available at
http://www.usc.edu/uscnews/stories/1376.html.
97
Megale, supra note 68 at 111.
98
Id. at 113.
99
Id. at 115.
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The following model legislation is structured so that the default rules are those which we found
most favorable, while the alternative bracketed language are less favorable, yet acceptable, for
reasons enumerated in the accompanying explanatory notes.

1. Justification an Affirmative Defense; Civil Remedies Unaffected.

(1) In any prosecution based on conduct that is justifiable under this Article, justification is an
affirmative defense.
(2) The fact that conduct is justifiable under this Article does not abolish or impair any remedy
for such conduct that is available in any civil action.
(3) Any civil actions may not arise until after criminal proceedings have concluded. If the actor
is found not-guilty at the end of criminal proceedings then no civil suit may be brought against
the actor.

EXPLANATORY NOTE
1(1)-(2) comes directly from the MPC and directly contradicts the intent of SYG laws--the
ability to use deadly-force without fear of criminal or civil repercussions. This lowers selfdefense from a complete bar to prosecution to an affirmative defense, allowing investigators to
collect evidence and conduct a complete and thorough investigation. Prosecutors will then be
able to fulfill their duties and decide if charges should be brought. If charges are brought, the
courts will be able to fulfill their function as fact finders.

We added subsection (3) civil immunity, in the case of a not-guilty verdict at the end of criminal
proceedings, because if the actor's conduct is considered lawful we do not want to encourage
additional lawsuits.

2. Use of Force in Self-Protection.

(1) Use of Force Justifiable for Protection of the Person. A person is justified in using
physical force, upon another person in order to defend himself or herself or a third person from
what he or she reasonably believes to be the use or imminent use of unlawful physical force by
that other person. In using physical force in self-defense, the actor may use only as much force as

18

he reasonably believes is needed to stop or prevent the interference. [and he or she may use a
degree of force which he or she reasonably believes to be necessary for the purpose.]
(2) Limitations on Justifying Necessity for Use of Force.
(a) The use of force is not justifiable under this Section:
(i) against a person who is [behaving lawfully] in a public space.
(ii) to resist an arrest that the actor knows is being made by a peace officer, although the arrest is
unlawful; or
(ii) to resist force used by the occupier or possessor of property or by another person on his
behalf, where the actor knows that the person using the force is doing so under a claim of right to
protect the property, except that this limitation shall not apply if:
(A) the actor is a public officer acting in the performance of his duties or a person lawfully
assisting him therein or a person making or assisting in a lawful arrest; or
(B) the actor has been unlawfully dispossessed of the property and is making a re-entry or
recaption justified by Section 4; or
(C) the actor believes that such force is necessary to protect himself against death or serious
bodily injury.
(3) Use of Deadly Force.
(a)The use of deadly force is not justifiable under this Section unless the actor believes that such
force is absolutely necessary to protect himself against imminent death, severe bodily injury,
kidnapping or rape [compelled by force or threat]; nor is it justifiable if:
(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force
against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by
retreating or by surrendering possession of a thing to a person asserting a claim of right thereto
or by complying with a demand that he abstain from any action that he has no duty to take,
except that:
(A) the actor is not obliged to retreat from his dwelling[, place of work, or car] unless he was the
initial aggressor [or is assailed in his place of work by another person whose place of work the
actor knows it to be]; and
(B) a public officer justified in using force in the performance of his duties or a person justified
in using force in his assistance or a person justified in using force in making an arrest or
19

preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest
or prevent such escape because of resistance or threatened resistance by or on behalf of the
person against whom such action is directed.
[(a) The use of deadly force is justifiable if an actor reasonably believes that deadly force is
needed to prevent death or serious injury.]

EXPLANATORY NOTE
Our intent with this section was to limit the use of deadly force, particularly outside of the home,
workplace, or private vehicle. This is accomplished by instituting an objective standard, where
only a reasonable amount of force should be used. This limits deadly force to situations where it
is necessary. Situations where deadly force may be necessary--including inside the home,
workplace, or private vehicle--include, without limitation, death, severe bodily harm or
mutilation, kidnapping or [forcible] rape. The MPC provides a clear list of when deadly force
may be necessary and justified. This is opposed to a vague list of when deadly force IS NOT
justified. We recommend that legislators follow the example of the MPC and enumerate
situations when deadly force is justified, placing the onus on the actor to display why her actions
were just.

Sec. 2(3)(a)(ii)(A) was adapted to reflect the extension of the castle doctrine to the workplace
and the private vehicle.

Also, we recommend as a default rule that an actor is not justified in using physical force when
the victim is in a public place, regardless of if the victim in engaged in lawful actions or not. This
is designed to prevent vigilantism. This encourages people to call the police, if a person is
engaged in unlawful actions.

In the alternate language, we followed Wisconsins traditional approach of reasonable belief of

the necessity of deadly force, with no presumptions in favor of the actor. This places the actors
actions in the hands of the jury in assessing the reasonableness of those actions.

20

 3. Use of Force for the Protection of Other Persons.

(1) Subject to the provisions of this Section the use of force upon or toward the person of another
is justifiable to protect a third person when:
(a) the actor would be justified under Section 2 in using such force to protect himself against the
injury he believes to be threatened to the person whom he seeks to protect; and
(b) under the circumstances as a reasonable actor would believe them to be/[the actor believes
them to be], the person whom he seeks to protect would be justified in using such protective
force; and
(c) the actor [reasonably] believes that his intervention is necessary for the protection of such
other person.
(2) Notwithstanding Subsection (1) of this Section:
(a) when the actor would be obliged under Section 3 to retreat, to surrender the possession of a
thing or to comply with a demand before using force in self-protection, he is not obliged to do so
before using force for the protection of another person, unless he knows that he can thereby
secure the complete safety of such other person; and
(b) when the person whom the actor seeks to protect would be obliged under Section 2 to retreat,
to surrender the possession of a thing or to comply with a demand if he knew that he could
obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using
force in his protection if the actor knows that he can obtain complete safety in that way; and
(c) neither the actor nor the person whom he seeks to protect is obliged to retreat when in the
other's dwelling [or place of work] to any greater extent than in his own.

EXPLANATORY NOTE
This section simply applies section 2 to the protection of others.
In Sec. 3(1)(b), the MPC uses a subjective standard, i.e., what the actor believes. A subjective
standard puts a huge burden on investigators and prosecutors to show that a person does not
actually believe, what he says he believed. Because it is extremely hard to argue what someone
believed, we changed the section so that an objective standard is the default rule, while provided
the option to select the subjective standard.

21

This portion comes unedited from the MPC. In Sec. 3(2) the actor does not have a duty to retreat,
surrender the possession sought, or comply with demands unless he knows that he can secure the
complete safety of the other person. However, in situations where the other person would have a
duty to retreat, surrender the possession sought, or comply with demands then the actor is
obligated to try to cause the other person to do so if he knows that complete safety can be
achieved in that manner.

4. Use of Force for Protection of Property.

(1) Use of Force Justifiable for Protection of Property. The use of force upon or toward the
person of another is justifiable when the actor believes that such force is immediately necessary:
(a) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or
the unlawful carrying away of tangible, movable property, provided that such land or movable
property is, or is believed by the actor to be, in his possession or in the possession of another
person for whose protection he acts; or
(b) to effect an entry or re-entry upon land or to retake tangible movable property, provided that
the actor believes that he or the person by whose authority he acts or a person from whom he or
such other person derives title was unlawfully dispossessed of such land or movable property and
is entitled to possession, and provided, further, that:
(i) the force is used immediately; or
(ii) the actor believes that the person against whom he uses force has no claim of right to the
possession of the property and, in the case of land, the circumstances, as the actor believes them
to be, are of such urgency that it would be an exceptional hardship to postpone the entry or reentry until a court order is obtained.
(2) Meaning of Possession. For the purposes of Subsection (1) of this Section:
(a) a person who has parted with the custody of property to another who refuses to restore it to
him is no longer in possession, unless the property is movable and was and still is located on
land in his possession;
(b) a person who has been dispossessed of land does not regain possession thereof merely by
setting foot thereon;
(c) a person who has a license to use or occupy real property is deemed to be in possession
thereof except against the licensor acting under claim of right.
22

(3) Limitations on Justifiable Use of Force.

(a) Request to Desist. The use of force is justifiable under this Section only if the actor first
requests the person against whom such force is used to desist from his interference with the
property, unless the actor believes that:
(i) such request would be useless; or
(ii) it would be dangerous to himself or another person to make the request; or
(iii) substantial harm will be done to the physical condition of the property that is sought to be
protected before the request can effectively be made.
(b) Exclusion of Trespasser. The use of force to prevent or terminate a trespass is not justifiable
under this Section if the actor knows that the exclusion of the trespasser will expose him to
substantial danger of serious bodily injury.
(c) Resistance of Lawful Re-entry or Recaption. The use of force to prevent an entry or reentry upon land or the recaption of movable property is not justifiable under this Section,
although the actor believes that such re-entry or recaption is unlawful, if:
(i) the re-entry or recaption is made by or on behalf of a person who was actually dispossessed of
the property; and
(ii) it is otherwise justifiable under Subsection (1)(b) of this Section.
(d) Use of Deadly Force. The use of deadly force is not justifiable under this Section unless the
actor believes that:
[(i) the person against whom the force is used is attempting to dispossess him of his dwelling
otherwise than under a claim of right to its possession; or]
(i) the person against whom the force is used is attempting to commit or consummate arson, and
either:
(A) has employed or threatened deadly force against or in the presence of the actor; or
(B) the use of force other than deadly force to prevent the commission or the consummation of
the crime would expose the actor or another in his presence to substantial danger of serious
bodily injury.

EXPLANATORY NOTE
SYG laws tend to place value in honor and possessions over life. The MPC weakens those
values, and we have reduced them even further with some edits. For example, the MPC version
23

follows the Castle doctrine closely. Our default version reduces the castle doctrines to only
situations of arson because it is such a life threatening crime that also puts the lives of neighbors
and firefighters in jeopardy.

VI. Conclusion

Stand Your Ground laws disparately impact African-Americans and other minorities. The laws
adversely affect minority defendants and victims. The statistical data indicates that these laws do
not make communities safer. Though proponents sconce Stand Your Ground laws as a
protection of individual rights, the laws in their current form allow criminals to get away with
murder. These laws should be reformed post-haste, before the blood of the next Trayvon Martin
is on the hands of the American people. To this end, we encourage state legislators to consider
adopting our proposed Model Legislation.

24