If you need a weekend reading assignment on an important topic, I will definitely suggest Charles C. W. Cooke’s essential read, Stand Your Ground on Stand Your Ground Laws at National Review. This is a subject which I’d thought was pretty much settled law, but has recently been brought back into the spotlight by Eric Holder, as well as his boss. Some of the opinions being expressed by our nation’s top cops fly directly in the face of the principles underlying current law in many areas. In fact, as Cooke points out, this concept is one which has found a comfortable home in many more places than you might think. For proof, he cites Eugene Volokh.
The substantial majority view among the states, by a 31-19 margin, is no duty to retreat. Florida is thus part of this substantial majority on this point. And most of these states took this view even before the recent spate of “stand your ground” statutes, including the Florida statute.
At issue here is what can essentially be defined as an extension of the Castle Doctrine. Holder made the rather startling argument that a citizen out and about in public, when confronted with the immediate threat of death or significant bodily harm, has a duty to attempt to retreat “if possible” before resorting to self-defense. Cooke finds this rather scoff-worthy, as noted in Florida’s current law.
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.
And here’s the money quote:
In essence, “Stand Your Ground” is a blanket term for any legal regime in which individuals do not have a duty to run away in the event that they are attacked. In states with such systems, juries are not expected to consider whether an individual could feasibly have retreated before resorting to violence in his defense; in states that do not, juries must inquire as to his chance of safely fleeing. In other words, in most of the country the Castle Doctrine has been extended to the village.
When we look at the situation in Florida, the idea of the Castle Doctrine being “extended to the village” comes into sharper relief. The reason, as demonstrated in the Trayvon Martin case, is ironically proven by those complaining about the shooting the most loudly. They argue that Trayvon Martin had every right to be where he was – on a public sidewalk – and should not have been confronted to begin with. But what of the other party in the case? Did he – or would anyone for that matter – have the same right to move freely in the public square? And if someone leaps out on public property and, for example, punches you in the nose and pins you to the ground, where does this duty to “flee if possible” originate?
Further, how does the Holder Theory of Conflict Resolution square with the fundamental principles of our people? When trouble erupts, does he wish to define our legal system for people who run away? If you see a little girl being pulled screaming into a van by some pedophile, and you happen to be an open carry citizen, does Eric Holder admire the person who rushes in to help or insist that you first evaluate if there is some safe route of escape you can take to avoid the chance that you might injure the perpetrator? This essentially cedes the field of battle to evil to ensure that it is not unduly inconvenienced by good.
This makes no sense to me, and I’m hard pressed to think of any compelling argument for Washington to step in and change this for the states. You have zero right to go up to anyone else on public property and assault them in any fashion, and you should be free of the fear of being assaulted yourself. But once the violence has begun, where in the law do we find a requirement that you flee from the place where you have exactly the same right to stand as your attacker? It’s coming from Holder, so you’d assume he must have some basis in the law to make such an assertion. I’m still waiting to hear it.