Photo from National Day of Justice for Trayvon Martin – OSU Event

Yesterday I spoke with Professor Sharon L. Davies the Executive Director of the Kirwan Institute at the Ohio State University. The Kirwan Institute partners with people, communities, and institutions worldwide to think about, talk about, and engage issues of race and ethnicity in ways that create and expand opportunity for all.

Professor Davies was a Harlan Fiske Stone Scholar and a Notes and Comments Editor of the Columbia Law Review while in law school at Columbia University. After graduation she worked as an Associate Attorney for Steptoe and Johnson in Washington, D.C. and Lord, Day & Lord Barrett Smith in New York City. Professor Davies served for five years as an Assistant United States Attorney in the Criminal Division of the United States Attorney’s Office in the Southern District of New York, widely thought to be the premier U.S. Attorney’s Office in the country.

Professor Davies’ primary research focus is in the area of criminal law and procedure. Her articles have been published in a variety of leading journals including the Michigan Law Review, the Duke Law Journal, theSouthern California Law Review, and Law and Contemporary Problems.Professor Davies teaches Criminal Law, Criminal Procedure (Police Practices), and Evidence.

This is the video of my interview with her. In it she shares her thoughts about the rally yesterday, and the social significance of the Trayvon Martin case. She also mentions that if Zimmerman didn’t use proportionate force, then his claim of self defense can not stand, under the laws of any state.

I find her statement on proportionate force confusing because my impression is that Stand-Your-Ground Laws erase any legal requirement to consider proportionate force.

From what I’ve read the Stand-Your-Ground Law in Florida says you can kill someone with a gun if you think they are going to badly injure you (great bodily harm). You don’t even have to think they’re going to kill you. You can also kill someone if you think they are about to commit treason, (treason is one type of forcible felony).

Here’s my source for that information. The following are excerpts from an article written by Hubert Williams, the president of the Police Foundation.

Florida’s law , which extends the Castle Doctrine by removing the duty to retreat, gives legal protection to anyone, anywhere, to use 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.”

The law also gives civil and criminal immunity to people who invoke it.

Florida’s law effectively empowers a citizen to act as an ad hoc police officer. It goes further by actually granting citizens more rights to use deadly force than is given police officers, and with considerably less review.
……..

Florida’s law has been used to excuse violence in deadly neighbor arguments, in bar brawls, in road rage—even in a gang shoot-out—that just as easily might have ended with someone walking away.

It also makes it harder for law enforcement to identify the real perpetrators during a shooting. As in the Trayvon Martin shooting, in many instances where deadly force is used, there are two witnesses and one of them is dead. 

Florida’s law turned what had been an “affirmative defense,” where the use of self-defense must be justified, into a presumption of innocence. As reported by the Orlando Sentinel, Some Orlando-area police agencies simply stopped investigating shootings involving self-defense claims and referred them directly to state prosecutors to decide.”

The critical voices of law enforcement officials and prosecutors, who warned of vigilantism, were ignored in the debate over Florida’s stand-your-ground law.

I wish I’d asked her a follow up question at the time of the interview. I’ll email her one and see if she has time to send me a response. If she does, I’ll update this post with it.

Additional Thoughts: Thursday April 12, 2012

So I found some more information about the concept of proportional force, but it’s not from a credible source.  It states that the Florida law is unique out of the various state’s Stand-Your-Ground laws, in that it doesn’t require proportional force. I’m going to share it here so if someone can verify it for me, they’ll let me know….

 Sixteen other states in America have a stand your ground provision BUT those other states also state explicitly in their laws that the person defending himself must use only that force NECESSARY to thwart the attack. These other states also clearly specify that LETHAL FORCE [defined as use of a deadly weapon] MAY NEVER be used in self defense against a non deadly attack. Attacks without deadly weapons [such as kicks and punches] are clearly defined as non-lethal. Therefore, in all other states which employ a stand your ground provision or “castle doctrine” the person defending himself, despite having a right to stand his ground, he must do so with proportionate force. In all other states, employing “stand your ground” this right is confined to the ability to stand one’s ground with force of the SAME KIND which is being inflicted upon him.

Update: On April 12th I sent a follow up question to Sharon L. Davies, Executive Director of the Kirwan Institute for the Study of Race & Ethnicity. She wrote back to me immediately. Here is her response.

 

Regarding your question, which I appreciate very much, the precise wording of Florida’s Stand Your Ground law itself provides the answer.  First a little context:

 

At bottom, self-defense laws allow us to use force to defend ourselves against the unlawful aggressive acts of others, if we have a reasonable belief that force is necessary to protect ourselves against such aggression.  Our society also places a very high value on human life, however.  So self-defense provisions generally distinguish between different degrees of defensive force, namely, run-of-the-mill force (e.g., he’s about to hit me, so I slug him first) and “deadly force” (he’s about to shoot me, so I stab him first).

 

In other words, self defense laws permit us to use “deadly force” to protect ourselves in some circumstances, but not all.  When not?  When we lack a reasonable belief that the aggressor is threatening to inflict on us a sufficiently serious injury to warrant that degree of responsive force.

 

So say Joe knocks Bob to the ground, can Bob pull out his gun and shoot Joe?  Under most self-defense definitions, including Florida’s, only if Bob has a reasonable belief that Joe  is threatening him with  great bodily injury or death (sometimes called “serious bodily injury” as opposed to simple “bodily injury”, and generally is defined to require a threat of permanent injury to bodily organ or permanent disfigurement).  This language is sometimes referred to as the “proportionality” limitation to the law of self-defense.  In short, we can act in self-defense, but society’s interest in the preservation of human life trumps the small stuff.  If it is not reasonable to believe that Joe is threatening Bob with grave bodily injury or death, Bob can respond with proportionate force, but not deadly force.

 

Does the Stand Your Ground change that?  It does not.

 

As many have emphasized, the Stand Your Ground law is an expansion of the so-called Castle Exception.  The Castle Exception is itself an exception to what is generally referred to in the law of self-defense as Duty to Retreat rules.  So let’s start with Duty to Retreat rules and what they are all about.

 

Again, because of the high value we place on human life, states with “duty to retreat” rules stress that deadly force cannot be used if the person being attacked realizes that he has a safe avenue of retreat.  In other words, if Bob realizes it is not “necessary” to employ force because there is a clear path to safety, duty to retreat rules say: take the path.  The major exception to these rules is if Bob is in his “Castle,” i.e., home.  The home is consider a special sanctuary, from which its residents should not have to suffer the indignity of retreating.  States with duty to retreat rules generally provide that there is no duty to retreat when the threat takes place in the defender’s home.

 

While Stand Your Ground rules extend the “no duty to retreat” exception to cover defenders outside the home (i.e., permit persons not to retreat in public spaces as well as the home simply even when there is a safe avenue of retreat) they do not remove the proportionality restriction!

 

If you read the Stand Your Ground rule in Florida carefully, you can see that important proportionality limitation has not been removed:  a person can “stand his 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 harmto himself or herself or another or to prevent the commission of a forcible felony.”  That’s a big “if.”

 

That is why the circumstances of the scuffle between Trayvon and Zimmerman still matter.  Even if Trayvon was using or threatening to use force against Zimmerman that night, If it was not reasonable for Zimmerman to believe that Trayvon was using or threatening him with deadly force or great bodily harm, Zimmerman’s employment of deadly force in response (by shooting a gun) would be disproportionate, and the Stand Your Ground rule would not save him.

Sharon L. Davies
Executive Director
Kirwan Institute for the Study of Race & Ethnicity
John C. Elam/Vorys Sater Professor of Law
Moritz College of Law, The Ohio State University

———————————————–

Story by, Lauren Michelle Kinsey

Follow me @OHLMK
Communicate with me lauren@plunderbund.com

Evangelize!
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  • Guest

    I believe she is making reference to Solemn v Helm, which held that governments can not sentence criminals disproportionately to their crime. Or, the crime must fit the time. That does not apply here. This not about a judge sentencing somebody in a court. She is just trying to stir the pot some more.

  • spuggylips

    Excellent article, the quote from the president of the Police Foundation (is that their Union down there?) is on the money. 

    I had this same conversation with my spouse today- this law, as it is written, gives untrained citizens too much power. I had read where actual criminals were already using it as a defense to cover their criminal acts, and the police were powerless to do anything about it.

    I don’t know what the solution is, citizens should be completely allowed to fight back, but some common sense needs to be inserted here. When you confront  a suspicious person and the only tool on your bat belt is a handgun…well that’s not going to end well.

  • spuggylips

    Yes! Police used to have a “Use Of Force Continuum ” that  spelled out the reactions considered reasonable that police were allowed to respond to attacks with.

    Unfortunately, this chart was getting cops killed. So now the training is centered on what is reasonable given the circumstances and the chart is history.

    It will be interesting to see the medical examiner’s results from this case- was Martin shot while on top of  Zimmerman, while he was in fear for his life? Or was he shot running away from Zimmerman and the threat was over? 

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