It is becoming very fashionable for progressives to denounce Florida's Stand Your Ground rule and to describe it as a possible bar to a successful prosecution of George Zimmerman. As I have previously explained, there are numerous problems with this argument. First, it misstates the requirements of the Stand Your Ground rule. Second, it assumes that Trayvon Martin was the initial aggressor rather than George Zimmerman.
Despite the faults in the progressive critiques of Stand Your Ground, Think Progress has published a new blog entry which contends that Florida law gives individuals more leeway to use deadly force than members of the armed services. Jon Soltz, the founder and chairman of VoteVets.org, wrote the essay. Soltz argues that the
U.S. military issues Rules of Engagement (ROE) for every conflict to guide servicemembers’ ability to protect themselves from deadly threats while responding only with the necessary and proportionate level of force in a dangerous situation.He then analyzes an ROE issued in 2007 during the Iraq invasion. The rule requires the use of "graduated force" when a servicemember faces a "hostile act" or "hostile intent." Soltz lists four steps in this graduated approach:
Shout verbal warnings to halt;Soltz then describes an incident during which a US servicemember shot a fleeing detainee; the detainee died from the injury. The servicemember violated the ROE because the person he shot did not pose a risk, because he was fleeing and unarmed. The servicemember was charged for the violation (although he was later injured and never faced a court martial).
Show your weapon and demonstrate intent to use it;
Physically restrain, block access, or detain;
Fire a warning shot (if authorized);
Shoot to eliminate the threat.
Soltz argues that by removing the "duty to retreat" prior to using force, Florida's Stand Your Ground rule lacks a requirement to deescalate; thus, Florida law allows for more immediate use of deadly force than the military. Furthermore, Soltz criticizes Florida law for (he claims) immunizing a suspect who uses deadly force simply "if he believe[s] he had been threatened with deadly force" or who merely claims "I thought someone was threatening."
Finally, Soltz expresses his dismay that Zimmerman has escaped an arrest by "simply claiming that he felt threatened by Trayvon, regardless of whether that was an objectively reasonable response to the situation or if he took steps to avoid a deadly confrontation." For several reasons, Soltz's analysis is absolutely wrong.
Soltz Misinterprets Florida Law
I assume that Soltz wrote his essay before the media reported that an arrest of Zimmerman seems imminent. Holding that aside, Soltz's essay misinterprets Florida law. Soltz correctly states that the Stand Your Ground eliminates the common law duty to retreat that is an element in most state self-defense laws. So, under Florida law, a person can generally use self-defense without trying to escape the threat.
The list of graduated factors that Sholtz provides, however, does not contain a duty to retreat either. Furthermore, despite the fact that Florida has eliminated the duty to retreat, Soltz incorrectly asserts that Florida law, unlike military regulations, allows for the use of force regardless of whether it is reasonably necessary. Contrary to Soltz's assertion that a defendant can avoid arrest by simply stating that he "believed" he faced lethal force or that he "thought" someone was threatening, Florida law requires that the person have a reasonable fear of harm. This means that the individual's subjective state of mind is not the baseline. Instead, a reasonable person under the circumstances must fear the threat. Accordingly, under Florida law, as in the military, a person who shoots a fleeing unarmed individual has likely committed a crime. It is difficult to argue that the assailant reasonably feared deadly force or serious bodily injury.
Second, Florida law requires that the use of force be proportionate to the harm. This rule applies in every state -- even those with Stand Your Ground provisions. Consequently, deadly force is only permissible under extremely limited circumstances -- either to avoid serious bodily injury or the application of lethal force by the victim. Thus, Florida law does not authorize a person to "shoot to kill" whenever he or she believes that lethal force is appropriate. Instead, the law provides parameters around the use of lethal force.
Soltz Assumes That Trayvon Martin Was The Initial Aggressor
Soltz's essay also misapplies Stand Your Ground to the developing facts of this case. Florida law clearly states that an initial aggressor has a duty to retreat. In other words, the individual who provoked the confrontation cannot take advantage of the Stand Your Ground rule. I have written extensively on this subject in prior blog posts (and have cited and quoted the relevant statutory language).
Admittedly, the evidence at this stage is very sketchy. But, it appears from 911 recordings that Zimmerman first followed Martin in his car. Zimmerman called 911 and said that Martin was "up to no good" and that he appeared to be "on drugs." Zimmerman also used profanity and possibly a racial epithet to describe Martin during the 911 call. Next, Zimmerman left his car and pursued Martin on foot with a loaded gun -- despite the dispatcher advising him not to do so.
Telephone records indicate that Martin was having a conversation with his girlfriend moments before his death, which suggests that he was not provoking Zimmerman into a confrontation. Indeed, Martin's girlfriend has said that he expressed to her that he was frightened and that Zimmerman was following him. She also said that Zimmerman approached Martin and shoved him. Under these facts, Zimmerman seems to have initiated the aggressive contact. Martin was simply walking home. Zimmerman was playing police officer and trying to prevent another "asshole" from "getting away."
If Zimmerman was the initial aggressor, he cannot claim a right to stand his ground. Instead, he should have tried to avoid the conflict by leaving if possible or by indicating to Martin that he meant no harm and that he did not want to continue the offense. Furthermore, if Zimmerman was in fact the initial aggressor, then Martin had the right to stand his ground and defend himself from Zimmerman. Thus, the fact that Zimmerman possibly sustained injuries inflicted by Martin does not excuse his decision to kill the teenager.
Soltz, like so many other progressive commentators, assumes that Martin -- the unarmed black teenager -- was the initial aggressor. These commentators either misunderstand Florida law or they cannot imagine Martin being the victim, rather than the aggressor. I would like to hear Soltz explain which of these factors led him to misapply the Stand Your Ground rule in this case.