In 2005, Florida passed a "Stand Your Ground," law. In the Florida Senate the vote received 39 yeas and 0 nays while in the House it received 94 yeas and 20 nays. It was signed into law on April 26th by then Governor Jeb Bush. Although this law deserved to be notorious before the ink had dried on the bill, and although there had been warnings about its potential to create chaos and lead to an increase in the number of homicides, its notoriety greatly increased in the aftermath of the Trayvon Martin shooting in which the law figured prominently. Initially, Bill Lee, the police chief in the jurisdiction where the shooting occurred, declined to arrest Zimmerman, citing Florida's Stand Your Ground law as a reason. In addition, the jury that tried Zimmerman when he ultimately stood trial for killing Martin was given instructions that incorporated the self-defense principle as expanded under the 2005 Stand Your Ground law.
The main features of this bill are as follows. First, as a matter of public policy, it absolves citizens of the obligation to avoid an escalation of a conflict that may result in greater harm or death. In other words, whereas, prior to the passage of this bill, a person, unless in his home (the "castle doctrine"), had a duty to flee as a first course of action rather than resorting to lethal force when he felt that his life was in danger (or merely that he was in danger of sustaining "great bodily harm"), the Stand Your Ground law did away with that requirement. Instead, it grants the state's imprimatur to a right to shoot to kill as a matter of principle. "Why should I have to flee?" a gun-wielding person might argue. "I have every right to be where I am and if, by staying put, the only way that I can sufficiently defend myself is by shooting my adversary, so be it." The Florida legislature adopted this line of thinking, encouraged (and, no doubt, pressured) by the fanatical pro-gun organization, the National Rifle Association. This organization, which has elevated guns to the level of a fetish and that exists not so much to defend the 2nd amendment as to promote the sale of guns, must have recognized the potential bonanza in gun sales to which such legislation must inevitably lead. After all, if every person whom one accidentally jostles at the supermarket or inadvertently cuts off on the highway is carrying a gun and an argument ensues, that person need only claim that he feared for his life in order to be legally entitled to pull out his gun and shoot to kill. Given the threat posed by virtually anyone to everyone else, it would certainly behoove everyone else to carry a gun also, so as not to be caught unprepared when what once would have ended in angry words now ends with a bullet. And this personal arms race is, of course, precisely what the NRA wants: a gun in every purse and trouser pocket in America. Predictably, the law has, according to at least one study, led to a threefold increase in the number of homicides by shooting in Florida since it was enacted.
As a matter of law, and as a result of an amendment to the law which was signed by Governor Rick Scott in 2017, when a shooting occurs in which a claim of self-defense is asserted, the law now places the burden of proof on the state (when it contemplates prosecuting the shooter) rather than on the shooter himself in defense of his claim that the shooting was justified. That is, under the principle established by this law, a person who shoots and kills another human being must now be presumed to have acted in a legitimate exercise of the right of self-defense provided that he makes that claim. No longer obligated to deescalate the confrontation, much less to avoid it altogether, he merely has to assert his claim that he felt that his life was endangered or that he was in danger of sustaining great bodily harm. This is what Zimmerman did after shooting Trayvon Martin and this is why Florida did not initially prosecute Zimmerman for killing Martin. This is despite that fact that there were numerous non-lethal means at his disposal - and numerous opportunities to avail himself of them - with which Zimmerman could easily have dealt with any threat (whether real or imagined) that he thought Martin posed either to Zimmerman himself or to anyone else in the community. (Ultimately, Zimmerman did not rely upon a Stand-Your-Ground defense although, as noted above, the law did figure in the instructions that were given to the jury trying the case.)
It is impossible for anyone who does not relish the thought of our society's descent into a wild-west, lawless sort of free-for-all, to regard this law as anything other than a fig-leaf for legalized vigilantism and legalized manslaughter - even legalized murder. Want someone dead? All you need do in the state of Florida is start an argument with him (and be sure to bring your concealed gun) and, when the argument gets heated enough, pull out your gun and shoot. When the authorities arrive, you need only claim - not untruthfully, either - that you feared for your life. After all, isn't it safe to assume that that person was, like you, carrying a gun? And, in any case, that person seemed, really, really angry and menacing. It was him or you.
Florida is by no means the only state now with a Stand Your Ground law, although it was the first (there are currently thirty-three). There have been numerous incidents since these laws' passage that have illustrated how altercations that could easily have been deescalated or, at the worst, might have ended in fisticuffs with minor injuries, instead ended in someone's death. (But, of course, isn't that the whole point of the law: to make it easier to kill someone?) The perversity and injustice of these laws was demonstrated just last week - again, in Florida; this time in Clearwater - when, on Thursday, July 19th, Markeis McGlockton was shot and killed by Michael Drejka in a convenience-store parking lot. Drejka, who has a history of aggressive and threatening behavior, had instigated an argument with McGlockton's girlfriend, Britany Jacobs, who was waiting in her car with her and McGlockton's five-year-old son, because she had parked the car in a handicapped-parking-only spot. Hearing the commotion, McGlockton ran out of the store and pushed Drejka down onto the ground. In a video of the incident, McGlockton can be seen clearly retreating after Drejka pulls his gun, whereupon Drejka then fires, hitting McGlockton with the bullet that would kill him a short time later. Citing Florida's Stand Your Ground law, the the local sheriff, Bob Gaultieri, declined to arrest or charge Drejka for the shooting death of McGlockton. (The one hope for justice for this man, who rushed to the defense of his girlfriend and, for doing so, was shot and killed in front of her and their five-year-old son, is that, as of this writing, Gaultieri's office is referring the matter to the state attorney's office for possible prosecution. But, of course, the burden of proof is on the state attorney to demonstrate why Drejka should not enjoy the presumption that he was perfectly justified in shooting McGlockton.)
It has been pointed out that the Stand Your Ground laws and their predictable and inevitable consequences have disproportionately affected (surprise, surprise) black shooting victims. But these laws have now intersected in the most ominous way with another sort of right of self-defense that surely must be viewed within the context of the MeToo movement; namely, the right of (usually but not necessarily) a woman to mount a physical response to a sexual assault. Consider this scenario: A rapist, following the rape and emboldened by a Stand Your Ground law, goes on to shoot his victim in order to prevent her reporting his crime and testifying against him. He need only claim that, after an act of consensual sex (hence the presence of his DNA upon or within her body; and, of course, we have only his word for it since the victim has been permanently silenced), the deceased became enraged and began to act in a menacing way. She screamed at him and then charged him. He feared for his life and so pulled out his gun and shot her. But it was self defense: he feared for his life and was justified, therefore, in shooting her.
The plausibility of this scenario is now illustrated by a video that has "gone viral" of an incident in a restaurant in Savannah, Georgia in which a patron is clearly seen groping one of the waiters (or "waitresses") there. (As it happens, Georgia, too, has enacted a Stand Your Ground law.) Irate, the waiter, Emelia Holden, grabs the assailant from behind and throws him to the ground, exactly as Mr. McGlockton threw Mr. Drejka to the ground in that Florida parking lot last week. What if this episode had occurred not in a busy restaurant but in a secluded spot with no witnesses? Or, for that matter, in front of plenty of witnesses. After all, there were several witness to Drejka's killing of McGlockton. And what if the groper in the video, who has been identified as Ryan Cherwinski, had had a gun in his possession? Holden, who is (rightly, I think) being hailed as a hero to women for standing up for herself, clearly got the better of Cherwinski. Whether empowered by her sense of outrage or simply because of her superior agility, or perhaps merely aided by the element of surprise (because Holden grabbed Cherwinski from behind, he never saw what ensued coming), Holden clearly had Cherwinski at a disadvantage. Under exactly these circumstances - with Holden looming over him shouting while Cherwinski sits crumpled on the floor with his back against the wall - but with the sole exception of Cherwinski's carrying a loaded gun - what would have prevented Cherwinski from pulling out his gun, shooting Holden to death, and then asserting the perfectly reasonable claim that he was merely acting in self defense? Reasonable, that is, within the perverse internal logic and shoot-first ethos enshrined within the Stand Your Ground law. The burden of proof, it is to be remembered, would not be on Cherwinski to justify his actions but, rather, on the state to prove that his shooting Holden was not justified. How high or low that bar is - the burden of proof that the state must meet in order to charge the shooter with a crime - is, as as Galutieri himself has observed, an entirely subjective matter.
Holden is being hailed as a hero for standing up for herself. The video is being shown to girls for their edification and has inspired and emboldened women to defend themselves more forcefully in similar situations. But what if it had turned out otherwise? What if, instead of celebrating Holden's act of defiance and self-assertion, we were now mourning her as a martyr to the cause of women's empowerment sacrificed on the NRA's alter to guns?
That is a question that the Florida legislature and every legislature in a state with or merely considering a Stand Your Ground law, as well as every American citizen, ought to consider.
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Update: The state attorney has now charged Drejka with manslaughter. Bear in mind, however, these important facts: First, manslaughter is defined as the unlawful killing of a human being but without malice aforethought. Manslaughter is regarded as less egregious a crime than murder and one who commits manslaughter is regarded as less culpable than one who commits murder. Second: Drejka allegedly has a history of provoking confrontations at that same location and elsewhere and he came armed and ready. That history - which, if established, represents a pattern of behavior - and the fact that Drejka initiated the confrontation after having prepared himself for it by arming himself with a loaded gun would seem together to constitute (they do to me, at any rate), on their face, premeditation.
Finally, recall that, under Florida's amended Stand Your Ground Law, the burden of proof that Drejka was not justified in shooting McGlockton to death must still be borne by the state.
Updated 15 August 2018
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Update: On Friday, August 23, 2019, a jury convicted Drejka of manslaughter. His lawyers plan to appeal the verdict.
Updated 25 August 2019
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