Some thoughts on "Stand your Ground"
In discussing such a controversial topic, I think it helps to know what the law actually is. So here's the key language from Florida:
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 now a jury instruction incorporating the statutory language from Connecticut, a Model Penal Code state with a duty to retreat:
A person is not justified in using deadly physical force upon another person if (he/she) knows that (he/she) can avoid the necessity of using such force with complete safety by retreating. This disqualification requires a defendant to retreat instead of using deadly physical force whenever two conditions are met: 1) a completely safe retreat is in fact available to (him/her); and 2) (he/she) knows that (he/she) can avoid the necessity of using deadly physical force by making that completely safe retreat. The law stresses that self-defense cannot be retaliatory. It must be defensive and not punitive.
The term "complete safety," as used in this statute, means without any injury to the defendant whatsoever. A person acts "knowingly" with respect to a circumstance described in a statute when (he/she) is aware that such circumstance exists.
It is important to remember that the defendant has no burden whatsoever to prove that (he/she) could not have retreated with complete safety or that (he/she) didn't know that a safe retreat was possible before (he/she) used physical force against . To the contrary, you may only reject (his/her) defense on the basis of this statutory disqualification if you find that the state has proved beyond a reasonable doubt that (he/she) did know that (he/she) could retreat with complete safety.
At first blush, they couldn't be more different, right? But let's take a deeper look at that Connecticut language:
With a competent defense, the vast majority of the time the state can only prove actual knowledge beyond a reasonable doubt through self-incrimination or overwhelming eyewitness testimony that the defendant could not have known. But let's assume a fact set where, under Connecticut law, a defendant be convicted and see what happens with that same fact set under Florida 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 now a jury instruction incorporating the statutory language from Connecticut, a Model Penal Code state with a duty to retreat:
A person is not justified in using deadly physical force upon another person if (he/she) knows that (he/she) can avoid the necessity of using such force with complete safety by retreating. This disqualification requires a defendant to retreat instead of using deadly physical force whenever two conditions are met: 1) a completely safe retreat is in fact available to (him/her); and 2) (he/she) knows that (he/she) can avoid the necessity of using deadly physical force by making that completely safe retreat. The law stresses that self-defense cannot be retaliatory. It must be defensive and not punitive.
The term "complete safety," as used in this statute, means without any injury to the defendant whatsoever. A person acts "knowingly" with respect to a circumstance described in a statute when (he/she) is aware that such circumstance exists.
It is important to remember that the defendant has no burden whatsoever to prove that (he/she) could not have retreated with complete safety or that (he/she) didn't know that a safe retreat was possible before (he/she) used physical force against . To the contrary, you may only reject (his/her) defense on the basis of this statutory disqualification if you find that the state has proved beyond a reasonable doubt that (he/she) did know that (he/she) could retreat with complete safety.
At first blush, they couldn't be more different, right? But let's take a deeper look at that Connecticut language:
- To defeat a claim of self-defense, it requires a retreat "with complete safety."
- It's an objective standard, not a "reasonable person" standard. To defeat a claim of self-defense, the state has to prove actual knowledge of the course of retreat.
- The state must prove both of the above beyond a reasonable doubt.
With a competent defense, the vast majority of the time the state can only prove actual knowledge beyond a reasonable doubt through self-incrimination or overwhelming eyewitness testimony that the defendant could not have known. But let's assume a fact set where, under Connecticut law, a defendant be convicted and see what happens with that same fact set under Florida law:
- If the defendant limited themselves to non-deadly force, Florida should acquit where Connecticut should convict.
- But if the defendant used deadly force with knowledge of a "complete safety" retreat, that means they couldn't have reasonably believed it was necessary to do so to prevent death or great bodily harm. So the defendant should be convicted in either state.