Following the George Zimmerman acquittal, there has been a lot of discussion around our nation regarding the use of self-defense and, in particular, whether Florida’s “Stand your ground” law is appropriate or terrible social policy.  Is it a bad law? Would Mr. Zimmerman have been convicted absent the law? The point of this post it to try and educate the public regarding the law of self-defense, the duty to retreat (or not retreat) and how Ohio law may differ from Florida.

Let’s start with the basics.  Self-defense has been a viable affirmative defense to many crimes (assault, felonious assault, murder, etc.) for many, many years.  Since the inception of our great country, the law has recognized that no person is obligated to sit there while an aggressor beats on them; no person must remain idle when he or she has an objectively reasonable belief that they are about to suffer imminent serious harm or death.  We have always had the right to meet force with force.

Currently, the law in Ohio requires a defendant asserting self-defense to prove three things by a preponderance of the evidence (more likely than not):

(1)   That the defendant “was not at fault in creating the situation giving rise to the “affray.” Basically, you can’t start the fight and then claim self-defense when the other guy ends up dead.   A defendant must not have been responsible for causing the altercation in order to validly assert self-defense.

(2)   That the defendant “had a bona fide belief that he was in imminent danger of death or great bodily harm and the only means to escape such danger was in the use of such force.” The defendant must have reasonably believed, under the circumstances as he knew them, that he was about to suffer serious physical harm or death, and the use of force was necessary to thwart that imminent harm.

(3)   That the defendant “did not violate any duty to retreat or avoid the danger.”  Astute readers will notice that this third prong is somewhat duplicative to the second prong, because if the only means to escape the danger was the use of force, then obviously the defendant could not otherwise avoid the danger. But let’s not get too bogged down in that minutia. Appellate courts craft “tests” all the time that seem nonsensical.

This test is the classic common law definition of self-defense, and was rearticulated by the Ohio Supreme Court fairly recently in State v. Barnes (2002), 94 Ohio St.3d 21. So, where does Florida’s “stand your ground law” come into all this?  Stand your ground alters the second and third prongs of the test – whether the defendant violated a duty to retreat or to otherwise avoid the danger in deciding inflict harm on the victim rather than run.

In Florida, even if you are capable of retreating safely and avoiding the attack, you may still use whatever force is reasonably necessary in order to thwart the potential harm.  Run to your car? You may, but need not do so.  You are permitted to meet the force with force no matter the available alternatives.

This is fundamentally different than Ohio’s law on self-defense.  If you are out on the street and accosted by someone, but have the means to run away, you must do so.  Only when the use of force is your only alternative will self-defense be found legitimate by a jury.

There is one exception, however, to Ohio’s duty to retreat: the Castle Doctrine, as codified in R.C. 2901.05 and R.C. 2901.09.  Taken together, these sections state that a person has no duty to retreat from their residence or vehicle when confronted with the danger of physical harm. Moreover, there is a rebuttable presumption that the defendant acted in self-defense whenever he inflicted harm on the victim in his residence or car and the victim was unlawfully entering or within the residence or vehicle.  In other words, the state bears the burden of proving that the defendant did not act in self-defense if the circumstances fall within the Castle Doctrine.

In short, the Ohio legislature has determined that persons within their residence may use force, even deadly force, whenever they reasonably believe they are about to suffer serious physical harm or death, regardless of whether they could have run out the back door.   There is no duty to retreat from your “castle” (or carriage, I suppose).  Florida law essentially takes Ohio’s Castle Doctrine to the streets. No one should ever have to retreat, period.

So, with all of this in mind, did Florida’s law on self-defense have any impact on the Zimmerman trial? Absolutely not.  Zimmerman simply asserted the classic version of self-defense, and the jury evidently bought it.  As best I can tell, his argument was basically: (1) he was not the aggressor on that rainy evening in central Florida. Trayvon Martin threw the first punch. (2) He reasonably believed that he was about to suffer serious physical harm or death while his head was repeatedly hitting the pavement, and (3) he had no available option but to shoot young Mr. Martin to avoid serious injuries or possibly death.  Had the Florida legislature never enacted “stand your ground,” the arguments for and against Zimmerman’s use of force would have been the same.

Zimmerman never contended that he had the ability to retreat once the attack started, but wasn’t required to do so under “stand your ground.”  The defense never requested any instruction on “stand your ground” as it was irrelevant to the factual issues the jury was required to sort out.  Zimmerman’s argument was that he simply reacted reasonably under the circumstances, which he did not create, and did what he had to in order to save his life.  Had the trial taken place in Ohio, the ultimate issues would have been very similar.