A Duty to Retreat

Sir William Blackstone, 1723-1780

Florida has been taking it on the chin. In addition to luxury vacation condos collapsing into giant sink holes, it seems that the media and political left are piling on because of Florida’s “stand your ground” law.  Attorney General Eric Holder, in a speech to the NAACP, stated that such laws “sow dangerous conflict in our neighborhoods” and “undermine public safety.”

Unlike Alinskyites, whose strategy it is to capitalize on heightened emotions, it might be good to step back and take a breath.

The right to self-defense is a time-honored legal precept. Sir William Blackstone, the great English jurist, traced the concept of justifiable and excusable use of deadly force from Roman and Judaic law and codified it into English common law (“Commentaries on the Laws of England”, 1765-1769). Since most US states adopted English common law as a basis for their own, it is not surprising that all of them allow a person to use force in defense of self or others. The details vary a bit, but the concept is universal.

Where the states begin to diverge is on the concept of “duty to retreat.” Blackstone identifies a duty to retreat in the event of a sudden brawl or affray, and only in the absence of the possibility of such retreat would defensive homicide be excused. The “stand your ground” states do not require a duty to retreat, if and only if a number of requirements are met. From Florida law (Chapter 776.012 para. 3), here is the heart of the matter:

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.

For the person using defensive force to have no duty to retreat, the following must be true:

• Have a right to be in the place where the attack occurs
• Must not be engaged in illegal activity
• Must believe that deadly force is reasonably necessary

The Tampa Bay Times, in a paroxism of self-guilt for being Floridean, documents what it calls “stand your ground cases” from around the state. Reviewing the very first one is very instructive.

In a narrow courtyard of the Liberty Square housing project, Damon “Red Rock” Darling and Leroy “Yellowrock” Larose got into a gunfight, allegedly due to an argument over drugs. Darling said he thought Larose was going to pull a gun on him so he pulled his and fired first. Neither Darling nor Larose were killed in the fusillade, but, unfortunately, 9-year-old Sherdavia Jenkins was killed in the crossfire while playing with her dolls. An extremely sad story, but does it support General Holder’s revulsion with “stand your ground”?

Not at all. None of the elements of “stand your ground” exist in the crime. The purported aggressor (Larose) was not killed, and Darling was engaged in illegal activity (drug trade). The court denied Darling’s attempt to use “stand your ground” as defense to the death of little Sherdavia, as well they should. Both Larose and Darling were convicted, with Darling getting 50 years.  Sounds like the “stand your ground” law operating as it should.

Here is another case. Anusha Bissoon, female, stabbed to death a man who was attacking her boyfriend after a road rage incident. Witnesses told police that the boyfriend would have been killed without Bissoon’s intervention. Based on evidence and witness testimony, prosecutors declined to press charges. Bissoon was spared the grueling trouble and expense of a trial, and was protected from civil suit by the aggressor’s family and estate. Again, seems like “stand your ground” operating as designed in the interest of justice.

Make up your own mind. But please, inform yourself and don’t be influenced only by lofty rhetoric. Our justice system deserves no less.