Monday 22 July 2013

Stand your ground:  Should it still be the law?


In the aftermath of the recent acquittal of 31-year-old Florida native George Zimmerman, the state’s so-called ‘stand your ground’ law has come under national scrutiny, as have dozens of other states that have enacted similar legislation.

A ‘stand-your-ground’ law is a type of self-defense law that gives individuals the right to use reasonable force to defend themselves without any requirement to evade or retreat from a dangerous situation. It is law in certain states within the United States. The basis of the law may lie in either statutory law and or common law (judge’s rulings) precedents. One key distinction is whether the concept only applies to defending a home or vehicle, or whether it applies to all lawfully occupied locations. The application of the ‘stand your ground’ law would be a valid defense or the basis of immunity to criminal charges and/or a civil suit. The difference between immunity and a defense is that immunity bars suit, charges, detention and arrest. A defense, such as an affirmative defense, permits a plaintiff or the state to seek civil damages or a criminal conviction but the accused may offer mitigating circumstances that justify the accused's conduct.

More than half of the states in the United States have adopted this doctrine that a person has no obligation to retreat when their home if attacked by an intruder.  Some states go a step further, removing the duty of retreat from other locations. In Canada, a person living in his home has no legal obligation to leave his home when an intruder invades it and years ago when there was a home invasion in Toronto, not only did the family in the invaded home fight the attackers in their home, they actually gouged out the eyes of one of the attackers. No charges were laid against the home owners and their family.

We are no doubt all familiar with the 17-year-old Trayvon Martin/George Zimmerman incident when Zimmerman followed Martin to see if he was a burglar casing the homes when in fact Martin was merely an innocent 17-year-old boy on his way home.

It is my personal opinion that Martin would not have been shot to death by Zimmerman if instead of confronting Zimmerman, he simply continued walking home. It is also obvious that if Zimmerman had obeyed the instructions of the 911 operator and remained in his car instead of following Martin on foot, there wouldn’t have been the close-body confrontation between them that resulted in Zimmerman shooting Martin to death. In my respectful opinion, they were both at fault.

Now Martin suspected that whoever was following him was intending to do him some form of harm because he didn’t know that Zimmerman was in charge of the neighborhood watch. He was fairly close to his home when the physical altercation took place. But when Martin turned around to face the man who was following him, just how far were the two of them apart from one another? If the distance between Martin and Zimmerman was close enough for Zimmerman to reach him before Martin could arrive at his home safely, then Martin was quite right to ‘stand his ground’ and defend himself from what he perceived to be someone who was going to do him harm. If he killed Zimmerman while fighting him, he would have a valid defence in accordance to the ‘stand your ground’ law as it applies in Florida where this fatal incident occurred.

However, if the distance between them was much further away then I don’t see how the defence of ‘stand your ground’ could have legally assisted Martin in his defence if he had killed Zimmerman during the altercation between the two of them.  My reasoning is based on the premise that if a person who is outside his home can escape someone who is following him, then common sense tells us that retreat is a better option than risk being killed during an altercation. This would mean that someone who has a chance to successfully retreat and chooses instead to turn around and confront the man who finally reaches him is just asking for trouble. Unfortunately, despite these two scenarios, we don’t know which one of these two scenarios applied since the witnesses that saw the altercation didn’t see the two of them immediately prior to the altercation. However, the incident wouldn’t have happened if Zimmerman simply remained in his car as instructed by the 911 operator instead of getting out of his car and following Martin on foot. 

After the Martin shooting, Florida Governor Scott appointed a task force to examine the questionable statute. The task force held seven hearings around the state before recommending to keep the law on the books despite many calls around the United States for it to be repealed or amended. Quite frankly, I don’t see anything wrong with the Florida statute. Let me explain.

Section 776.012 of the Act states that a person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the criminal’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

 (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

Now, what is wrong with that law? It is reasonable and necessary for the protection of victims. Now I will deal with the law pertaining to ‘stand your ground’ which is more disputable in the minds of many.

Subsection 3 of that Act says; “A 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.”  

Although retreat may be the preferable way to resolve the problem of facing a criminal head on who has criminal intentions to do harm to the innocent person, the law doesn’t blame him if he chooses to stand his ground and face the criminal who is approaching him since he is under no obligation to retreat. This would be most applicable if both the victim and the criminal are armed since the victim doesn’t want to be shot in the back.

People can’t claim the ‘no duty to retreat’ protection if they’re in the commission of a crime or if they initiate the confrontation. The problem facing the jurors in the Martin/Zimmerman trial was, “Who initiated the confrontation?”

Imagine if you will a school passing a law that applying the ‘stand your ground’ as a defence to fighting with a bully is not a valid excuse for fighting the bully. The bully would then continue bullying your child and every other child in the school and eventually the school would be full of sissies bowing to the needs of the bully.

Just after Germany attacked Poland in 1939, Britain, Canada and France decided that they had enough of standing around doing nothing when Hitler had previously marched into other countries so rather than continue sitting around with their collective fingers of their arses, they decided to ‘stand their ground’ and they declared war on Germany. In 1941, the United States after Japan attacked Pearl Harbour, decided that the Americans also had enough and they too stood their ground alongside the British, the Canadians and the French.

A South Florida man successfully used the state's ‘stand your ground’ law to escape a first-degree murder charge. Nour Badi Jarkas testified that he had been confronted by a 5-foot-11, 280-pound, tattooed man who was angry with him and who first threatened to kill him and then who lunged at him. Concannon the tattooed man was subsequently shot four times.

Quite frankly, I don’t see how the defence of ‘stand your ground’ would apply in that case unless it was Jarkas’ home he was in—which it wasn’t. It was his estranged wife’s home whom he was visiting. This is the kind of judgment that confuses many people. I think the judge erred in his decision. However, if the man had no means to escape because Concannon was too close to him to make an escape possible, them self defence would be justified without using the ‘stand your ground’ law to strengthen the judge’s decision of finding  Nour Badi Jarkas not guilty as charged.

Florida was the first state to enact the ‘stand your ground’ law and many states later followed suit. Looking at the Florida statute, I believe that the law is a good one and for this reason, I believe that those who condemn it are basing their beliefs on the premise that Trayvon Martin was killed because of that law.  I don’t think that particular law was the reason for his death even if the boy refused to run any further and turned to face Zimmerman especially if he had an opportunity to flee the scene before Zimmerman could catch up to him. And it certainly didn’t apply to Zimmerman because when he was following Martin, he had no fear during those moments for his life or the life of someone else and he certainly had no business confronting Martin considering the fact that the police told him to remain in his car since they would be on the scene shortly.  

1 comment:

msmariah said...

I personally don't agree with these stand your ground laws. The problem with the law in my opinion is that it doesn't take into consideration preceding circumstances that led up to that point, like Zimmerman following Martin when the police told him not to.

Back in the day people knew how to fight with their fists and leave it at that. Inevitably there was always a loser in the fight, but the loser didn't necessarily have to pull a gun. They just got beat up. Now instead of taking a 'whooping,' people would rather pull a gun. I think this is the same thing that's going on in the inner city of Chicago. Which is why the violence in Chicago is epidemic.