Skip to main content

How 'duty to retreat' became 'stand your ground'

By Jeffrey Bellin, Special to CNN
updated 7:30 PM EDT, Wed March 21, 2012
Tallahassee defense attorney Deveron Brown talks to Florida Gov. Rick Scott, right, about the shooting of Trayvon Martin.
Tallahassee defense attorney Deveron Brown talks to Florida Gov. Rick Scott, right, about the shooting of Trayvon Martin.
STORY HIGHLIGHTS
  • Jeffrey Bellin: Until recently, Florida's self-defense law included a "duty to retreat"
  • In 2005, Florida overrode law enforcement objections, adopted a "stand your ground" rule
  • Bellin says that even on a sidewalk, people may defend themselves with deadly force
  • He says "Stand your ground" may ultimately decide outcome of Trayvon Martin shooting

Editor's note: Jeffrey Bellin, an assistant professor of law at Southern Methodist University Dedman School of Law, formerly served as a federal prosecutor in Washington, D.C.

(CNN) -- The tragic killing of Trayvon Martin and the initial decision by the police not to arrest George Zimmerman for that killing have focused public attention on Florida's "stand your ground" law.

According to police, Zimmerman claims self-defense, but many observers can't understand how a grown man with a gun can plausibly claim that he was forced to kill a teenager armed only with some candy.

If that's the law of self-defense in Florida (and elsewhere), these observers argue, the law needs to change.

Jeffrey Bellin
Jeffrey Bellin

The law of self-defense is at its core about reasonableness. If a person reasonably perceives a serious threat of harm, and uses reasonable force to meet that threat, the law justifies even deadly force, and it does so even if it turns out that the perceived threat was illusory.

People have differing views of what's reasonable and, as a consequence, self-defense laws (which vary by jurisdiction) have always attempted to further define the concept. Until very recently, Florida's definition of reasonableness, as in many states, incorporated a longstanding principle, the "duty to retreat."

Brown: 'Stand Your Ground' needs review
Outrage grows over Trayvon Martin death
Neighbor: Shooting wasn't self defense
Friend defends George Zimmerman

This principle required that someone who found themselves in a violent confrontation had to try to defuse the situation and retreat "to the wall" before resorting to deadly force.

In other words, deadly force was only permitted as a last resort. The basic idea was simple: If more people backed down, retreated or stepped aside, fewer people would be killed.

The "duty to retreat" also made it easier for prosecutors to prove that a killing was not in self-defense. The facts that can be proven are often murky (particularly when of the two people who know what happened, one is the defendant and the other is dead) and prosecutors could often, by pointing to a defendant's failure to retreat, obtain a conviction even without establishing the precise facts.

In American jurisdictions there has long been an exception to the duty to retreat called the "Castle Doctrine." As then-Judge (and later U.S. Supreme Court Justice) Benjamin Cardozo explained in 1914: "It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home."

In recent times, "stand your ground" laws extended this concept in many states beyond the home to any place where a person might lawfully be found, such as a bar or a public sidewalk. Florida's version enacted in 2005 (over the objection of many in law enforcement) is one of the most far reaching.

The law states that a person "who is attacked" anywhere he is lawfully present 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."

Importantly, a person cannot invoke this provision if he is "engaged in unlawful activity" or "initially provokes the use of force against himself." Finally, in Florida, once self-defense becomes an issue at trial, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense -- a heavy burden.

This is the legal backdrop against which Florida's prosecuting authorities must assess all claims of self-defense, including Zimmerman's. In an ideal world, law enforcement would make this assessment by thoroughly investigating the case and, after determining the provable facts, comparing those facts to the law.

Critical to this determination will be evidence reflecting: how the confrontation began and how the suspect acted after the confrontation (prosecutors often look for actions such as flight or a cover-up that indicate a "consciousness of guilt"). Perhaps most critically, investigators will compare all the evidence (physical and otherwise) with the suspect's statement (if any) about what happened.

If the investigation reveals sufficient evidence for a reasonable jury to conclude that Zimmerman was not acting in self-defense (as Florida law defines that concept), he can be prosecuted. If not, charges are unwarranted.

Depending on the facts that ultimately emerge, the "stand your ground" law may ultimately control the legal outcome of the Trayvon Martin case. If, as a result, Florida's citizens and legislators (and those in other states) see that law in a new light, they can change the law, perhaps leading to fewer tragic outcomes in the future.

For it may (as many suspect) be the case that Zimmerman was not forced to kill Trayvon Martin. But in a state like Florida with a "stand your ground" law, that is no longer the standard for determining whether someone acted lawfully in self-defense.

Follow us on Twitter: @CNNOpinion

Join us at Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Jeffrey Bellin.

ADVERTISEMENT
Part of complete coverage on
updated 9:05 AM EDT, Tue September 16, 2014
LZ Granderson says Congress has rebuked the NFL on domestic violence issue, but why not a federal judge?
updated 7:49 AM EDT, Tue September 16, 2014
Mel Robbins says the only person you can legally hit in the United States is a child. That's wrong.
updated 1:23 PM EDT, Mon September 15, 2014
Eric Liu says seeing many friends fight so hard for same-sex marriage rights made him appreciate marriage.
updated 3:38 PM EDT, Mon September 15, 2014
SEATTLE, WA - SEPTEMBER 04: NFL commissioner Roger Goodell walks the sidelines prior to the game between the Seattle Seahawks and the Green Bay Packers at CenturyLink Field on September 4, 2014 in Seattle, Washington. (Photo by Otto Greule Jr/Getty Images)
Martha Pease says the NFL commissioner shouldn't be judge and jury on player wrongdoing.
updated 9:15 AM EDT, Tue September 16, 2014
It's time for a much needed public reckoning over U.S. use of torture, argues Donald P. Gregg.
updated 8:25 AM EDT, Tue September 16, 2014
Peter Bergen says UK officials know the identity of the man who killed U.S. journalists and a British aid worker.
updated 7:28 AM EDT, Tue September 16, 2014
Joe Torre and Esta Soler say much has been achieved since a landmark anti-violence law was passed.
updated 4:55 PM EDT, Fri September 12, 2014
David Wheeler wonders: If Scotland votes to secede, can America take its place and rejoin England?
updated 8:41 AM EDT, Tue September 16, 2014
Jane Stoever: Society must grapple with a culture in which 1 in 3 teen girls and women suffer partner violence.
updated 4:36 PM EDT, Fri September 12, 2014
World-famous physicist Stephen Hawking recently said the world as we know it could be obliterated instantaneously. Meg Urry says fear not.
updated 6:11 PM EDT, Fri September 12, 2014
Bill Clinton's speech accepting the Democratic nomination for president in 1992 went through 22 drafts. But he always insisted on including a call to service.
updated 6:18 PM EDT, Fri September 12, 2014
Joe Amon asks: What turns a few cases of disease into thousands?
updated 1:21 PM EDT, Thu September 11, 2014
Sally Kohn says bombing ISIS will worsen instability in Iraq and strengthen radical ideology in terrorist groups.
updated 6:31 PM EDT, Tue September 16, 2014
Analysts weigh in on the president's plans for addressing the threat posed by the Islamic State of Iraq and Syria.
updated 9:27 AM EDT, Thu September 11, 2014
Artist Prune Nourry's project reinterprets the terracotta warriors in an exhibition about gender preference in China.
updated 9:36 AM EDT, Wed September 10, 2014
The Apple Watch is on its way. Jeff Yang asks: Are we ready to embrace wearables technology at last?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT