Yesterday I
asked whether the failure of jurors to agree on the murder
charge against Michael Dunn in connection with his shooting of
Jordan Davis had anything to do with Florida’s recognition of a
right to “stand your ground” when you are attacked outside your
home. The short answer: maybe, but at this point there is no
evidence to support that theory. The editors of The New York
Times nevertheless really want to believe it’s true, to
the point that they are just making stuff up. Today’s paper
includes a “news analysis” by Lizette Alvarez under the headline
“Self-Defense Law Hung Over Florida Jury.” Someone at the
Times must have noticed that there is no basis for
that headline, because in the
online version it has been changed to “Florida Self-Defense Law
Complicated Jury’s Job in Michael Dunn Trial.” In truth, there is
no basis for that asserion either, assuming it means that some
special feature of Florida law prevented the jurors from reaching a
verdict on the murder charge. Alvarez’s lead is more tentative:
In failing to acquit or convict Michael Dunn on the most
significant charge—the premeditated murder of a teenager in a
dispute over loud music—a jury on Saturday may have run headlong
into the breadth and reach of Florida’s contentious self-defense
law.
Like I said, maybe. But Alvarez offers no evidence whatsoever to
back up that speculation. Instead she focuses on the question of
whether Dunn reasonably believed Davis posed a deadly threat that
could be neutralized only by shooting him. If Davis had a shotgun
and threatened to kill Dunn, as Dunn claims, the shooting was
justified. If Davis had no weapon and made no threats, the shooting
was not justified. If Davis threatened Dunn (or merely shouted
curses at him) and was holding something that Dunn mistook for a
shotgun, the question is fuzzier: In the circumstances, was it
reasonable for Dunn to believe Davis had a gun and intended to use
it? But the question of what Dunn reasonably believed has nothing
to do with the presence or absence of a duty to retreat.
Alvarez implies that the reasonable-belief standard is a special
feature of “stand your ground” laws like Florida’s, and the New
York Times editorial board has
explicitly said the same thing. But that is not true. This
standard was
part of Florida’s law before the legislature eliminated the
duty to retreat in 2005, and it is part of self-defense laws in
states that New York Times editors no doubt consider
more enlightened, such as
New York,
New Jersey, and Connecticut.
The reasonable-belief standard is not some crazy idea invented by
Florida gun nuts; it is the “conventional” approach in the United
States, as Boston University law professor Kenneth W. Simons
explains in a 2008 law review article:
In self-defense…it is conventional to ask whether the actor
believes, and whether a reasonable person would believe, each of
the following facts: (a) an aggressor was threatening him with
harm, (b) that harm would be of a particular level of gravity, (c)
his use of force in response would prevent that harm, (d) the level
of responsive force he expects to employ would be of a similar
level of gravity, (e) if the force was not used, the threatened
harm would occur immediately, and (f) no nonviolent or less
forceful alternatives were available whereby the threat could be
avoided. United States law typically requires an affirmative answer
to each of these questions.
Factor (f) implicates the duty to retreat when it is possible to
do so safely, which in Dunn’s case (if you buy his story) may or
may not have been true. That is why I say Florida’s “stand your
ground” provision might have affected the outcome, assuming the
holdout juror or jurors thought Dunn could have avoided danger
simply by driving away. But the rest of the analysis, the issues
that were the focus of Dunn’s trial, would be the same with or
without a duty to retreat.
Alvarez’s effort to draw a logical connection between the Dunn
trial and criticism of Florida’s self-defense law is totally
unpersuasive:
Until a juror speaks publicly about the deliberations, no one
outside the 12 can know precisely what happened in the jury room.
But agreeing on what constitutes a ”justified” shooting—an
ambiguous definition—could have been one problem, legal experts
said.This is why the Davis family and the parents of Trayvon Martin
say they are joining forces with lawmakers to continue to fight to
change Florida’s so-called Stand Your Ground law. George Zimmerman,
who claimed self-defense, was acquitted in July of Mr.
Martin’s shooting death. Under Florida self-defense laws,
people can use lethal force and do not have to retreat if they
”reasonably believe” it is ”necessary” to save their lives or
avoid great harm. The jury must, in essence, decide what a
”reasonable person” would have done under similar circumstances.
”The law takes the position that you have to step into the shoes
of the defendant,” said Michael Band, a Miami criminal defense
lawyer who was a longtime prosecutor in the city….The problem, [University of Miami law professor Mary
Anne Franks] said, lies, in part, with the term reasonable,
which is ”squishy.” One person’s reasonable is another person’s
overreaction. Getting 12 jurors with contrasting world views to
agree on that is not a simple task.
No doubt that is true, but jurors across the country face this
same challenge of deciding whether a homicide was justified based
on the reasonable-belief standard, regardless of whether their
state imposes a duty to retreat. To say “that is why” critics want
to change Florida’s law is a non sequitur.
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