Zimmerman and Duty to Retreat

I look at all of the people
Doing it over and over
You never get any older
I wish that you could be here
--OMD

The Zimmerman trial took place in a state with a stand your ground SYG) provision in the self-defense statutes. Twenty five states have SYG provisions. An interesting discussion of influential Supreme Court opinions that underpin SYG can be found here.

Other states have duty to retreat (DTR) provisions, meaning that a person under attack from an aggressor has a duty to retreat from the attack if it is reasonable to do so. It is important to note that just DTR laws demand retreat only if it can be accomplished in complete safety by the defender and other innocents present at the scene. If this were not the case, then it would be inconsistent with the inalienable right to be secure in one's person and possessions.

Some people who are upset with the Zimmerman trial verdict suggest that the path to justice would have differed had a DTR provision been in place.

This is doubtful.

Assume that the Zimmerman trial is conducted in a DTR state. Zimmerman's story remains the same. He claims that Trayvon Martin attacked him and pinned him to the ground, whereby Martin began pounding Zimmerman's head against the sidewalk. To defend against the attack, Zimmerman shot Martin.

As in a SYG state, or any state with just self-defense law for that matter, the prosecution must convincingly demonstrate that Zimmerman either a) was the aggressor, or b) acted unreasonably in his self-defense.

Let's examine both.

a) The story presented during the trial was that Martin attacked Zimmerman by taking him to the ground.  Martin was the aggressor. The prosecution could not prove otherwise.

The aggressor and the point of aggression have therefore been established. This is important for DTR, or for any self-defense law for that matter, because a defender cannot choose a response to aggression until the offensive act occurs, or can be construed as imminent. Only upon aggression can an act of self-defense take place.

b) The story presented during the trial was that Martin threw Zimmerman to the ground and began pounding Zimmerman's head on the sidewalk. It was also claimed that Martin could see and possibly had access to Zimmerman's gun. The prosecution could not prove otherwise.

The prosecution proceeds to argue that Zimmerman should have retreated once he was attacked. The defense counters that Martin's initial attack was sudden and pinned Zimmerman to the ground before he could react. Zimmerman was absorbing potentially lethal blows to the head from Martin and chose a reasonable counterattack given his position. He had no time and was in no position to consider a retreat tactic.

Unless the prosecution can convince the jury that Zimmerman was in a reasonable position to safely escape between the time that Martin first moved on Zimmerman and when Zimmerman was on the ground taking head blows, which seems a tall order in this case, then DTR doesn't help the prosecution's case.

Perhaps this explains why, in post trial interviews, the Zimmerman prosecutors did not attribute much relevance of DTR in this case, and said that self-defense law "really hasn't changed all that much" with SYG.

It seems difficult for reasoning observers not to conclude similarly.

Stand Your Ground

An empty face reflects extinction
Ugly scars divide the nation
Desecrate the population
There will be no exaltation
--The Fixx

During the recent George Zimmerman murder trial, a Florida statute known as the 'Stand Your Ground' law was brought into the spotlight by the media. The statute can be found here (see clause 3). Despite the media attention, the law was not central in the Zimmerman trial deliberations.

However, the applicability of Stand Your Ground to the Zimmerman case is not the issue to be discussed here. Instead, we consider the validity of the Stand Your Ground provision itself which has been questioned by some.

As I read it, the Florida statute says that people in a public place and not breaking the law have no 'duty to retreat' if attacked. Instead, they have the right to 'stand their ground' and meet 'force with force' to defend themselves. If defenders reasonably believe that they or others face grave threat, then they are justified in applying deadly force to quell the aggressor.

This statute is wholly consistent with the natural rights of man famously elaborated by Jefferson. All people have rights to life, liberty, and property. These rights are inalienable, meaning that they cannot be legitimately revoked by any human entity.

If aggressors seek to invade the rightful pursuits of others, then individuals have the right to defend themselves against such aggression. While they may choose to back away, they have no 'duty to retreat.' Instead, defenders have a duty to select a level of defensive force commensurate with neutralizing the threat.

Yes, a defender could use poor judgment and employ more counterforce than necessary to stop an attack. Whether the level of force applied was appropriate or excessive in a particular case may be for a jury of peers to decide.

That errors in judgment can be made does not diminish the right of defenders to render such judgment in order to protect their person and property against aggression deemed as life-threatening. Each of us was born with this right and the responsibility that goes with it.

If self-defense is a God-given right, then why is an explicit Stand Your Ground provision even necessary? Isn't it obvious? After all, few states have adopted Stand Your Ground provisions. Even the Zimmerman prosecutors indicated that, with the provision, self defense law "really hasn't changed all that much."

One explanation parallels the reason why the Bill of Rights was written. Many original proponents of the Constitution argued that an elaboration of individual rights was not necessary, because any powers not explicitly delegated to the federal government in the Constitution implicitly remained with the people.

Those wary of government's all-consuming appetite for power, such as the anti-federalists, were skeptical of such claims. They argued that individual rights were more likely to be compromised if those rights weren't written down for all to see. As such, ratification of the Constitution in some states was conditional on the development of an explicit bill of individual rights.

Of course, writing them down does not guarantee that rights will not be abused by the State. Many antifederalists, for example, suspected that the design put forth in the Constitution would result in an expansive government that would overpower individual rights even if those rights were elaborated as written law.

But writing does raise awareness. People who understand their God-given right to stand their ground and defend themselves are more aware of situations where other people want to take that freedom away.

Trial By Jury

"It's always difficult to keep personal prejudice out of a thing like this. And wherever you run into it, prejudice always obscures the truth. I don't really know what the truth is. I don't suppose anybody will ever really know. Nine of us now seem to feel that the defendant is innocent. But we're just gambling on probabilities - we may be wrong. We may be trying to let a guilty man go free, I don't know. Nobody really can. But we have a reasonable doubt, and that's something that's very valuable in our system. No jury can declare a man guilty unless it's sure."
--Juror #8 (12 Angry Men)

George Zimmerman was acquitted by a jury of his peers. Although the Zimmerman case was at the state level, the right to trial by jury in federal criminal prosecutions is guaranteed by the Sixth Amendment.

Why would the framers insist on a written guarantee to jury trials in criminal court cases? Because the alternative to a jury trial is a trial in which the verdict is decided by a judge or tribunal. And the framers well knew that, because judges and tribunals are determined by political process, they are subject to making interested decisions.

A just court is one that is distinterested and focused only on the law and the facts of the case.

While it is certainly possible for a jury of peers to be interested as well, the jury selection process, the requirement that a jury verdict must be achieved by unanimous decision rather than by majority decision, and other controls reduce the likelihood that a defendant receives an unjust decision.

For a sampling of what an interested perspective looks like, observe those rioting in the streets calling Zimmerman a murderer despite a clear path of evidence suggesting otherwise that was presented during the trial. Parenthetically, a thoughtful discussion of the central issues in the case by someone who was both close to the case and who understands self-defense law is going on here (the first three parts are here, here, here.

The right to trial by jury is an important one, as it constitutes one impediment to tyranny.

Ninth Circuit Ruling

It's been too long since we took the time
No one's to blame
I know time flies so quickly
--John Lennon

I view high profile court decisions as an opportunity for improving my understanding of the law, particularly as it relates to the Constitution and principles of liberty. These pages include reflections on several cases, including Obamacare, the Arizona immigration case, and the Zimmerman murder trial. The Ninth Circuit's recent decision to uphold a temporary restraining order on President Trump's travel ban provides another such opportunity.

The Trump's travel ban order is interesting to me because, at a high level, it pits freedom against security, a topic that has occupied this blog since its founding.

It also involves the Ninth Circuit. The Ninth Circuit is affectionately known to some as 'the Ninth Circus' because of its reputation to deliver some of the most unconstitutional rulings of any appellate court in the country (measured in part by the high percentage of its rulings that have subsequently been overturned by the Supreme Court). As such, its opinions often provide a useful contrast against which to evaluate legal correctness.

Much of the interest surrounding this case is Trump's campaign characterization of his executive order as a 'Muslim ban.' Trump's detractors, and the legal plaintiffs in the case, claim that this proves intent of discrimination on religious grounds. While this may of concern from a human standpoint, what matters from a legal standpoint is what is stated in the executive order. Plainly, there is no bias written into the order in this regard. Religious belief is not a basis for travel restriction; country of origin is. And although the Muslim faith pervades the several countries included in the ban, Muslims traveling from other countries are unaffected. Fortunately, although Ninth Circuit judges questioned federal lawyers about Trump's rhetoric and commented about it in their ruling, they did not base their opinion on this issue.

Did the plaintiffs, e.g., the state of Washington, even have standing in this case? The principle of standing holds that only persons legally injured by government conduct can sue to challenge legality. The Ninth Circuit ruling held that states can challenge federal immigration law on grounds that state institutions, such an universities, would be affected by the absence of students or faculty affected by the travel ban. This argument seems weak, and is analogous to Wal-Mart suing the government for taxes imposed on its customers because they would have less money to spend in the store. Moreover, state institutions are not the regulated party in this case. Instead, the plaintiffs are suing to block the enforcement of an executive order against other people, a situation for which there is little precedent.

A primary argument made by the plaintiffs is that the executive order violates due process rights of affected aliens. This is problematic for several reasons. One is that the president has been granted plenary authority by both the Constitution and by Congress under the Immigration and Naturalization Act (INA) to decide that aliens from particular nations present national security risks. Because they are unadmitted nonresidents, aliens have no constitutional right of entry into the United States.

The Ninth Circuit sidestepped this issue, arguing that aliens are being denied procedural due process in that they now have no 'notice or hearing' for making their case for entry. But aliens have no fewer procedural rights than they had under prior law. They can still apply for visas and protest cancellation of visas just as before. The executive order deals with substance, stating that aliens from several foreign countries will not be permitted to travel to the United States for a temporary period of time until security procedures are reviewed.

The Ninth Circuit spent several paragraphs explaining why the executive order might not be constitutional with respect to some groups, including green card holders, previously admitted aliens presently abroad, and even unlawful aliens now residing in the US. However, these groups represent a subset, perhaps even a small minority, of the scope of the executive order. Nonetheless, the law as written can be construed as incorrectly applying to some groups that are protected under the law.

The legal question is whether a law should be upheld when the scope, in terms of who is affected, has not been correctly specified. The court ruled, "Even though the TRO [the federal judge's block on the travel ban] may be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order."

I think the Ninth Circuit got this part right. Strike down a law (or uphold a restraining order) when it has been incorrectly specified. Don not try to recraft it from the bench. Parenthetically, recrafting it from the bench is precisely what the Roberts court did with Obamacare--not just once, but twice.

Since the appellate court decision, the Trump administration has signaled that they will not appeal the decision to the Supreme Court. This seems smart. Although it erred in much of its judgment, and it is questionable whether state plaintiffs in fact had legal standing to bring suit, the Ninth Circuit got its assessment of scope right.

In effect, the court has sent the executive order back to the president for a rewrite.