A Simple & Logical Amendment to an Irrational Aspect of Florida’s “Stand Your Ground” Law
Before We Begin, Let’s Try to Remember….
It’s Called “Stand Your Ground,” Which Means “Stay Put, You Wannabe Super-Cops!” This Does Not Mean “Follow, Instigate, Further Provoke, then Defend Yourself Once You Recognize Your Own Stupidity.”
I have a question for you. In order to answer it, please picture the following: Imagine a husband and wife are picnicking in a public park. Sounds romantically banal and benign enough, right? Only this particular couple happens to be a spousal abuser and his ritualistically battered wife. Out of nowhere (or with what this wife-beating husband psychotically considers to be a “good reason”), the husband begins beating his wife within an inch of her life. She then retaliates and defends herself by picking up a large rock, and tries to kill her husband…. but seconds or a moment AFTER he decides to stop beating her just shy of death. Is he permitted or justified to kill her in defense of his life, and more to the point, should subsequently avoid arrest or prosecution for murder under Florida’s “Stand Your Ground” Law (from here on out referred to as “SYG”)? If you believe the answer is “No,” then guess what? You are highly likely to also be logically bound in believing that Sanford, Florida resident George Zimmerman should have been charged (in some sort of way) for causing the death of 17-year-old Trayvon Martin.
Why is this the case, you ask? Because if the instigator of an attack decides to abort his attack, tries to retreat, or wants to retreat but can’t, under SYG (but certainly not morally or even logically), he can kill the person he provoked into a fight or attacked, in defense of his life, if it is reasonable for him to believe that the person he attacked is trying to kill him. Yes, it’s all a bit confusing. But don’t worry. Soon, all will be clear.
The Stand Your Ground Law in Question…..
Florida Statute 776.041 stipulates that if a person provokes an attack against another, and the defender attacks him in defense of himself, then the ‘stand your ground’ justification is not available to the instigator of the attack.
However, there is a BIG exception to this (seemingly strict) “flexible rule” that allows an “initial aggressor” to claim self-defense as a justification for lethal force. Florida Statute 776.041(2)(a) states that the aggressor of an attack is justified in using lethal force against the “initial defender” (the person who was attacked first by the initial aggressor) when the force against the person who provoked the attack to begin with is so great that the instigator “reasonably believes that he or she is in imminent danger of death or great bodily harm…” AND ALSO “has exhausted EVERY other reasonable means to escape such danger…” Not to annoyingly state the obvious right off the bat but, in reality, the instigator of an attack obviously did not exhaust all “means of escaping danger,” because he did not choose to refrain from provoking, causing, aggressing, striking first, or instigating the attack in the first place. If the initial aggressor who is being considered for the “exception to the exception” of SYG truly must attempt to do everything possible before utilizing lethal force to save his own life, then in order to qualify as exempt from prosecution, one must consider that the instigator might have “exhausted” every “means of escaping danger,” with the notable exception of the obvious and safest option, which was opting NOT to provoke and cause the aggressive circumstances that led to the necessity of lethal force. But I digress….
Blaming the Victim…..
It is this exception that is at issue for the purposes of this examination into Florida’s “Stand Your Ground” Law, since allowing the aggressor to claim that he was “standing his ground” forces all others to rely on the aggressor’s assessment that he was in imminent danger of death or egregious bodily harm, and that he in fact believed there was no other option available to him except to use deadly force. Plus, it portrays the defender (non-instigator) as an attacker, when the truth could very well be that the (now dead) person, who was defending his own life, was unable to judge or verify that the initial aggressor was trying to abort the attack by escaping, but felt he had no means to do so. This incorrectly assumes two very unlikely things. One, that there is a form of complicated and sophisticated communication going on during deadly confrontations. And two, that the victim (initial defender) himself, law enforcement, and the common citizen should “have faith” in the reasonableness of the aggressive assailant who attacked the deceased to begin with. The statute all but demands that the aggressor should be “trusted” by the person he attacked as someone who is at least trying to exhaust all other options before employing lethal force. The victim himself, is expected to believe that, at some point, most likely right before he dies, the person who attacked him was attempting to do everything he could to abort the attack he initiated and was (or is) forced to defend himself with lethal consequences. This portrays the victim as the aggressor, simply because the victim was possibly (or probably) unable to read the initial attacker’s mind or trust that there was no longer a need to keep defending himself or herself from the initial attacker’s aggression. After all, if the only one left standing (“his ground,” so to speak) was justified in using lethal force, then this logically means that the deceased “had it coming,” deserved to die, became the “bad guy,” or, through the “poor decision” to keep fighting, left the initial aggressor no choice but to kill because of the deceased’s actions…. Even though it was the initial aggressor’s actions and choice to attack that caused the deceased to use force against the man still standing.
Another (albeit, very similar) exception detailed in Florida Statute 776.041(2)(b) states that the initial attacker is justified in using lethal force against the person he attacked, if the initial attacker “indicate[d] clearly to the assailant that he or she desire[d] to withdraw and terminate[d] the use of force, but the assailant continue[d] or resume[d] the use of force.” However, this retreat (or surrender) must be made “in good faith” in order for the initial attacker to qualify under SYG’s exception clause. In other words, again, the initial defender is expected TO TRUST THE PERSON WHO ATTACKED HIM OR HER. This illogically and impractically assumes that victims of violent attacks should, and normally do, perceive their attackers as rational, and it ignores the common perception that instigators of physical assault don’t usually attempt to negotiate peace while in the midst of their onslaught. It ignores possibly the only empirical fact that most victims definitively know about their attackers in these scenarios- that the attacker assaulted the victim without provocation in the first place. In other words, what the statute is really claiming is that you have the right to kill a person, as long as you reasonably believe you are defending your life, regardless of whether the person you attacked KNOWS that you “changed tactics and desires,” and are now “passively” defending your life, and not STILL exclusively attempting to kill or harm him. While it is difficult to argue that humans should be outright denied the right to defend themselves (or that they should be advised not to), what CANNOT stand is escape from legal reprisal if the circumstances surrounding the death of an individual, even via self-defense, never would have occurred if not for the immediate and unwarranted physical actions of the initial aggressor.
Because of this “exception” or “allowance,” the Stand Your Ground Law, without declaring as such, declares that the initial victim is “responsible” for being unable to “correctly” judge or assess that the attacker has changed his mind about his desire to fight. But the fact of the matter is that, when it comes to a physical attack, those who are assaulted first should always be assumed as unable to judge when or whether the attacker is finished attacking or is attempting to retreat, until perhaps enough time has passed that it is clear or reasonable to assume that the attack is over…. at least during the immediate moment. In other words, even the abused wife in the example above cannot claim self-defense if she runs over her husband with her car days after she was attacked in the park. (Whether she can claim she had “spousal abuse syndrome,” and was not in her right mind, is another matter. The point is that there usually is a rather clear line between self-defense and revenge.) But in the “heat of the moment,” how can we expect the victim (defender) to know that the person who provoked the attack “has changed his mind” or is now trying to run away? And this is especially the case when the victim is aware that the attacker/instigator has a history of violent and aggressive behavior or, conversely, if the attacker/instigator is a stranger to the victim. Even in cases in which the initial aggressor has “clearly” physically indicated that he is retreating, the victim (person who was attacked) may possess a perfectly reasonable, but false, belief about the attacker to justify the victim’s rationale to continue fighting. The victim may believe that perhaps that he is running away to get better weapons or reinforcements. Or maybe he turned his back, not to flee, but to execute a roundhouse kick. Who knows? How can we expect someone, who was forced to defend his or her life against the violent actions of an aggressor, to “trust” or take seriously the words, promises, or actions of the person who instigated the attack? At this point, what the statute claims without intending to, quite literally, is that the victim, the person who was initially attacked, must “stand his ground,” and do nothing else, if the attacker indicates that he is “done” attacking him. After all, if the initial aggressor is not guilty of committing a crime under SYG, because he attempted to flee or stop the fight he began, the initial defender then, at that point, becomes the attacker in the eyes of the law. And if the initial attacker’s deadly actions against the person he initially provoked exempts him from committing the crime of murder, because his actions are deemed self-defensive, then the person he killed is legally portrayed as the attacker and would-be murderer, simply because he or she was unable to determine or trust that the initial aggressor was finished attacking him or her. In this case, because the initial attacker’s defensive actions are deemed legally justified, the victim becomes the one at fault for continuing to fight. And this judgment exists, quite simply, because it is impossible to claim that one is justified in killing an innocent and blameless person.
Stand Your Ground Laws Don’t Exactly Help to Minimize or Prevent Violence Against Women….
Besides the general inane and illogical nature of “blaming the victim” in cases in which the initial defendant is unable to assess the legitimacy of the initial aggressor’s “suddenly passive” intentions, there is a much more common circumstance and specific “victim pool” whose deaths would lead to grave miscarriages of justice under SYG Laws like Florida’s. And this circumstance and group includes cases of violent acts against women. If a woman is attacked by a man, any man, be it her lover, spouse, acquaintance, date, or stranger, the common disparity in size, speed, dexterity, strength, and physical defense knowledge between them forces many or most women to employ lethal force in defense of their lives. If a man attacks another man, it is conceivable that the defendant can simply knock the assailant out in order to thwart the attack and run for help. Plus, a “weaponless confrontation” between two men of relatively equal mass is not likely to cause both men to believe they need to use deadly force in order to survive. But if a woman is jogging down a public street, stops for a sip of water at a fountain, and is attacked by a “weaponless” male assailant who seeks to rape, kidnap, rob, assault, or murder her, it is unreasonable to claim that the woman shouldn’t assume the absolute worst (as opposed to the woman inferring that he “only” wishes to rape her and nothing more…. as if lethal force isn’t somehow warranted then as well). This is especially the case given the modern statistics on violence against women. And because most men “out-size” most women by at least thirty to fifty pounds and four to eight inches, not to mention can outrun them in many cases, there is a plethora of circumstances in which a woman should be viewed as perfectly justified for continuing her attack on a man even after it is deemed reasonable (by the law) for her to assume that the attack on her person is “over.” And the initial attacker should not just be held liable for the assault, but also the death of the person he provoked and violated until the point that she was unable to properly judge whether or when he decided to abort his assault. (It is important to note however, that the logic of this need not apply solely to attacks on women. But since we tend to persecute, prosecute, and hold assailants morally responsible for their violent actions against women, even when the death of these women technically and textually qualifies the assailant for protection from prosecution under SYG, we should be very tempted to apply the same objective judgments against those who provoke the MEN they attack, to the point in which these men are also unable to clearly determine that the attack is over. In other words, what is the case for female victims should be the case for male victims as well. And what is the case for those who attack women should also be the case for those who attack men.)
First, if a man sexually assaults a female jogger, takes her ID as a way of insuring her silence, zips up his trousers with his back to her while he thanks her for her time and inefficient struggle, and then reminds her to keep her mouth shut as he takes his leave, Florida’s Stand Your Ground Law implies (perhaps due to its ambiguity) that since he is “finished” assaulting her, has clearly indicated as much, and is about to walk away, he would escape at least a murder charge, albeit probably not a rape charge, if he killed her as she then came at him with deadly force in that moment. (Perhaps she picks up a sharp stick or brick and attempts to kill him with it.) If he pushes her away, and she falls head first onto a rock and dies, according to the strict textual interpretation of the law, SYG allows him to claim self-defense.
Now perhaps it can be argued that this example would be considered “death while in commission of a felony,” and so the exception would not apply. However, while rape is certainly a felony, can it not also be argued that “felony assault” is as well? (I mean, it’s right there in the name….) And that “assault with a deadly weapon” is a felony too, “a la George Zimmerman?” (Of course, this would have to entail Zimmerman as the initial attacker, and not Martin.) And what if this hypothetical man did NOT rape the woman? If he “merely fondled her aggressively” or “simply” beat her senseless? Again, as long as he, “in good faith” clarified that the attack was over, if the jogging woman’s family wishes to have her death prosecuted, they could….. if only she did not attack him when she did. In other words, the victim in this case is expected to “take the attacker’s word for it” that he intends to retreat and NOT chase her down as she runs away, or follow her home, or change his mind, finish her off, and bury her in the woods. To dub this “exception to the exception” of the statute as anything short of insane is, well…. insane.
Second, most women must employ deadly force in order to escape an attacker. A simple right hook to the face of a man who outweighs his victim by almost half her body weight just isn’t going to cut it. In self-defense classes, women are often taught the most effective “moves” that will cause a maximum amount of damage in order to hinder the attacker enough to give the woman time to go for help. This involves “palm heel strikes” up the attacker’s nose, or gauging out an aggressor’s eyeball, and a host of other efficient, but possibly lethal, maneuvers. If an initial aggressor is on the receiving end of one of these tactics early in his assault, he very well may attempt to abort his attack. But under SYG, if a woman does not yield, because she is smart enough not to trust his suddenly peaceful intentions as genuine, he is legally permitted to kill her without legal reprisal for her death. (Just her death.) But even insinuating via ambiguous legal jargon that, lest she be legally labelled the aggressor and her attacker as the one defending himself, a woman should halt her self-preserving defensive strikes, and “trust” that her attacker is truly trying to retreat, instead of looking for an “opening” to exploit when she lets her guard down, is downright impractical, unadvisable, and immoral. I’ve heard of outrage regarding “blame the victim” mentality, but now it’s “Trust the word of the attacker?” Calling this ridiculous doesn’t do these inadvertent “SYG loopholes” justice. We need a word that truly conveys the backward and twisted nature of allowing attackers to escape prosecution, arrest, and full responsibility for the deaths they cause.
In almost ALL situations, the provoker of an attack should ALWAYS be viewed as the attacker, as the assailant, and never as the “self-defender,” even if he truly is attempting to abort what he instigated, or retreat from the fight he started. So if an instigator kills the person he initially attacked, while attempting to run away, or “trying” to run away (either because the person he attacked is a much better fighter than he anticipated, or he chose a very unfortunate, inescapable place to pick a fight), he should be viewed as guilty of causing a person’s death. Maybe he is not guilty of first or perhaps (read, perhaps) second degree murder, but he is morally guilty of murder, nonetheless. Call it manslaughter if you will, as long as it comes with a hefty imprisonment sentence.
Time for Metaphor!
The Stand Your Ground Law’s exception to the exception can easily be explained by an alternative example. Imagine you wish to take your buddy, let’s call him Buddy (why not?) on a fishing trip. But Buddy has been hesitant to accept your previous invitations because he does not know how to swim. But after bribery or provocation, you finally convinced Buddy to join you on your boat for a fishing trip on the Atlantic. Buddy is a bit nervous but otherwise having a good time. For whatever reason, perhaps because you drank a few beers and were feeling rather uninhibited, or maybe because you simply grew bored after hours of not catching any fish, you decide to “liven things up a bit,” and you throw Buddy into the ocean without a life jacket. After being entertained for a few moments while watching Buddy flail around in the water, your conscience gets the better of you, and you decide to jump in and rescue your “friend.” Since Buddy is unaware of your intentions (After all, you did push him into the water), Buddy fights you, thinking you’ve come to finish him off, and in his struggling, you begin to swallow water, and you fear for your life. Ironically, your attempt to drown your friend could very well end up with you drowning, yourself. So you push yourself about a yard away from him, and try to reason with him by explaining that you are not there to drown him, but you are trying to save him. Then you swim towards Buddy, but given the fact that you were the one who pushed him into the water to begin with, he still does not believe you and begins fighting against you, all the while causing you to grow weaker and swallow more water. Then Buddy gets pretty desperate and attempts to use you as a flotation device. By doing so, he pushes you completely under the water, and this point, if you do not drown Buddy, you will die. He is clutching onto you, so you cannot get away again, and in order for you to continue living, you believe you have no choice but to drown him to prevent him from drowning you. Soon after you drown him, Buddy’s lifeless body bobs to the surface, and a boat full of police officers come upon the scene and ask you what happened. According to SYG, you will not be charged with murder. You qualify as utilizing justified self-defense! And the only crime you did commit, if it is a crime at all, is pushing a man who you knew could not swim into the water. If you are like me, then your gut is telling you that there is something inherently wrong with the fact that you will not be charged with anything, except perhaps “endangering the life” of your friend. You may innately believe that this is not enough. You may think that you should be charged with something more than just endangerment or negligence. If you believe that the law should correctly reflect your actions, and that you should be charged (in some way or another) with the death of your friend, then you also think that there is something wrong with “stand your ground” laws that have these kind of exceptions. At least in your hypothetical case, you attempted to save your friend’s life at some point. But in situations in which “stand your ground” applies, this is almost always not the case. As you may correctly and astutely perceive, it was not Buddy’s fault that he did not believe in your genuine intentions to stop trying to kill him. This is exactly the type of case in which we can simultaneously maintain that the person in question may have had no choice, but still must “lay in the bed he made,” legally speaking.
A Defendant’s Frame of Mind….
We cannot dismiss that it may not be clear to someone who has been flooded with adrenaline and is fighting for his or her life against a person who is perceived by the defendant as irrational, and is seen as attacking for no clear reason, that this “mad dog” now suddenly wishes to abort the attack he started. When attacked, the human response is that of “fight or flight,” and if fight is chosen over flight, it may be very difficult to judge when the attack and aggression of the assailant has stopped. And this is especially the case when the person attacked is caught by surprise and perceives the attacker as crazy. Instigating a confrontation is not often a rational action, whereas halting a confrontation is. For someone who is flooded with self-preserving adrenaline and a “flight or fight” response, the ability to understand that an irrational attacker has “suddenly become rational” would be extremely difficult. And so the defender might not be able to judge correctly that the aggressor has decided to thwart his actions or retreat and desist. The attacker must be held accountable for what he instigated.
Yes, we all have a “right” (I use this term very loosely) to protect ourselves from even initial defenders who are unable to judge properly that the instigator is attempting to retreat, but instigators cannot be held blameless for the attacks they initiate. While virtually no one would claim that the instigator, who is attempting to retreat or stop the attack he began, should simply “lie there” and allow himself to be killed, to reason that he may now claim self-defense for an attack he instigated is simply madness. If he is forced to utilize deadly force in order to save his own life, due to an attack that he or she caused, perhaps this is not an instance of first or even second-degree murder, but it is certainly manslaughter, at the very least.
The only situation I can logically deem appropriate, in which the instigator of a deadly or severe attack should be rendered virtually blameless, if he is forced to defend his or her life after attempting to retreat or abort the attack he started, is if the provoker of the attack was “out of his mind”, due to either grief, “insanity” (temporary or otherwise), or extreme inebriation, at the time of the attack. For example, if a mother loses her child, and then shortly after is walking down the street and sees a man who she believes is responsible for her child’s death, perhaps her provocation of this man into a deadly confrontation, which then leaves the man with no choice but to fight for his life, at which time she perhaps realizes that she is mistaken and attempts to retreat, but is forced to kill the man who is not allowing her to do so, should not be prosecuted, since she was obviously NOT in her “right mind” at the time of her instigation of the deadly attack. In this case, it was her own actions that led to the death of the man, and her own actions that caused the man to defend his life with force that she believed would kill her, but she cannot be held accountable for defending her life while not in a rational state of mind at the time of her initiation of the attack. And this makes sense, because any crime committed while one is “temporarily insane,” is not a crime for which the person who committed it is deemed responsible.
Zimmerman and Martin….
If George Zimmerman provoked the attack on Trayvon Martin, it should be assumed that Zimmerman was in a rational state of mind. (Since there is no evidence to indicate otherwise.) He was not grief-stricken. He was not suffering from Dissociative Identity Disorder. He was not inebriated. He was not on PCP. And he was not in a rage. If Martin did attempt to kill Zimmerman, while he was attempting to stop the fight he began, then perhaps Zimmerman is not guilty of committing murder, but he should be held accountable both for Martin’s death and for provoking the actions that caused the his death, if he initiated the attack. And he should not be exempt from guilt on the basis of Florida’s “stand your ground law.”
At the risk of thwarting any attempt left to remain uncontroversial, with very little evidence available to the jury, it was highly likely that Zimmerman provoked the attack. He was “advised” not to follow Martin, and yet he did so, and the attack occurred. Zimmerman approached Martin with a gun in his possession and on his person. Martin was on his way home holding a drink and candy and was supposedly freaked out by the strange, “creepy cracker” who was following him and staring at him. Zimmerman was “on the prowl.” (After all, what else could you call it? He was not professionally working, nor was he performing a vitally necessary civic duty.) And that is just about all we need to know in order to surmise that Zimmerman instigated the attack that resulted in the death of a 17-year-old boy. The only way that Zimmerman should be rendered blameless is if it is reasonable to assume that Zimmerman approached Martin, and that Martin somehow became enraged and began to beat on Zimmerman with deadly force that then forced Zimmerman to draw his gun and shoot Martin in the chest. Or that Martin snuck up on Zimmerman and tried to kill him forthwith. But the only way this could have occurred is if Martin had a reason to be enraged at a perfect stranger, or was so “hopped up on drugs” (although the medical report claimed he was not) that he perhaps believed Zimmerman was a wild animal, and that he had to kill him in order to save his own life. Given Zimmerman’s personal history with the neighborhood watch (he was not “on duty” that night, supposedly) and his frequency of 911 calls, plus his comment about his personal observations on how often “these assholes get away with” committing crimes, it is not just reasonable to deduce that Zimmerman was acting as if he was a police officer, even though he was not, but that it was highly likely. In order for it to be reasonable to believe that Martin instigated the fight, one would have to suspend virtually all rationality, and believe that Martin pounced on Zimmerman for no reason at all, or because of acute paranoia, while the gun-toting, self-appointed watchman was only trying to calmly talk to him. But since Zimmerman himself claimed that he was forced to defend his own life after “instigating” the attack (following the adolescent Martin…. with a gun in his belt), his ability to be considered blameless under SYG is quite a stretch for any ethical theorist to justify.
Zimmerman’s acquittal seems to allow for bullies to go free after their aggressive actions force their victims to judge the credibility of the “suddenly rational” violence-stopping actions of their attackers, while being flooded with a “fight or flight” response. If this is the case, then we are blaming the victim for not being able to properly determine whether or not the person who attacked them suddenly wants to “do a 180″ and stop the attack. And this should not be the case. While everyone has the “right” to defend his or her life from attack, no matter who started or instigated the initial violent action, the person who provokes the fight, especially upon a complete stranger who had no reason to expect that they would be attacked, simply cannot escape judgment or reprisal, and must be held accountable for the situation that he caused to occur. This is logical. This is rational. THIS is justice.
Any law that unwaveringly protects gun-toting adults, bullies, instigators, drunken idiots, or abusers, and anyone else who should know better than to initiate, provoke and cause violent or deadly attacks, does not hold water. If you shove a “non-swimmer” off a boat, you cannot escape blame when they drown… Even when their completely preventable death was necessary for you to survive. By all means, protect your life. It’s precious. But so are the lives of those who are provoked and attacked by those who turn around and claim self-defense. By not assigning responsibility, it’s like we are claiming that only the living matter. And the last time I checked, preventable death was not just a tragedy. It’s an injustice.
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