I am a general practice lawyer in California who has spent over 44 years pondering and arguing the concept of self defense in some pretty high courts and in advising my clients. But this is not a technical treatise. It is a political rant. The recent murder trial in Florida is moving me to just get off my chest what a rational deadly self-defense law has to be in a civilized America.
My simple rule: You can’t kill anybody unless you have no other choice. Oddly, that’s the common law followed in just about every state until recently. Because, why would anybody want it any other way?
First of all, let’s understand one thing: No individual has a “right” to choose to kill anyone. If, under our Constitution, our government cannot deprive anyone of life without due process of law, how can government authorize anyone else to do it? In my view, any law that purports to confer, in advance, an individual right to kill another is unconstitutional.
But what about this “right” to defend yourself? Well, why would anyone call it a “right?” Why not see it for what it is? More fundamental than a right. More “God given” than any right. A simple recognition of necessity. Some things simply can’t be avoided. You have to do what you have to do. Some people will find themselves in a dire emergency where they don’t have time or ability to consider or reflect on the “the law.” They have to act or life will be lost. There ought to be laws that say their actions are justified (not authorized). It should never be permission to kill. It should always only be a defense that you had no choice.
Clients often ask me to tell them when they have the right to use deadly force. My answer is always simple: If you have to ask, the answer is no. If you have to “decide” to kill someone, and that decision to kill someone depends on your knowledge of the “law,” you have introduced the one element that kills any moral self defense claim – a choice.
So it turns out that the law in the overwhelming number of jurisdictions that follow the common law is simple. (1) self defense is an affirmative defense that must be raised and proved by the defendant, (2) the defendant must have the actual subjective belief that his life (or another’s life) was in imminent danger, (3) that his belief was objectively reasonable under the circumstances, and that (3) there was no way to avoid the deadly force.
Jurisdictions (states) may differ on details of when certain facts raise a “presumption” of reasonableness of fear, such as presence of a violent intruder in your home. And there is a general duty to retreat as an alternative to deadly force except in your own home.
“Wait! You mean to tell me that if I catch some sonovabitch in my living room with my TV in his arms I don’t have to right to shoot him???!!!” NO!!! A thousand times: NO!!!
What the Florida “Stand Your Ground” law does is to eliminate the element of objective necessity. It not only takes away the duty to avoid conflict but actually implies that withdrawal is dishonorable or cowardly by calling it “retreat” and actually creates conflict over who’s “ground” is being “stood.” It attempts to confer on an individual the right to kill by choice and in protection of his honor and a place to stand. That makes him dangerous to those he chooses to fear – or hate – or to those who think they have a right to be in that place too.
“(3) 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.”
“Retreat?” “Stand your ground?” These are words of war, not peace. What kind of person wants to have a “right” to kill if they have a choice? Unfortunately, I’m pretty sure I know who they are.