In the wake of the high-profile shooting death of 17-year old Trayvon Martin, there is substantial public unrest surrounding Florida's "Stand Your Ground" law. In response, much of the Nation seems to be placing reliance on the Florida court system to redress the perceived shortcomings of this controversial statute. However, this reliance is misplaced.
Common Law Duty to Retreat
While the common law uniformly recognizes a person's right of self-defense, it also requires retreat to avoid killing whenever possible. Accordingly, under the common law, a person may not resort to the use of deadly force in self-defense unless and until he or she has exhausted every reasonable means for avoiding the threatened danger in a non-deadly manner. As far as the law is concerned, all lives are equal. Thus, the use of deadly force in self-defense must be a last resort.
Florida's "Stand Your Ground" Law
In 2005, the Florida legislature enacted the "Stand Your Ground" law that is the source of much of the controversy surrounding the Trayvon Martin case. Pursuant to that statute, a person who is not engaged in an unlawful activity and who is attacked in any 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. Fla. Stat. § 776.013. Thus, Florida's Stand Your Ground law explicitly abrogates the common law duty to retreat and expressly provides for a legal right to employ force against an assailant.
Any Change to "Stand Your Ground" Law Must Be Done Legislatively, Not Judicially
Obviously, reasonable people could disagree as to the wisdom of Florida's "Stand Your Ground" policy. And I agree that this tragic case is cause for Florida to reevaluate the proprietary of this law. But the public reliance on the court system to do this is misplaced. Any amendment or repeal of the "Stand Your Ground" law must be done in a legislative capacity. A judicial ruling on the wisdom of this statute would constitute judicial activism which would be in sharp contravention of well-established separation of powers principles. Moreover, any legislative change to the law must be prospective rather than retroactive. Thus, the court cannot allow the perceived shortcomings of this "stand your ground" policy to change the law for purposes of adjudicating this case.
The future of Florida's "stand your ground" law may be unclear, but one thing remains clear: George Zimmerman must be given the benefit of the law which was in effect at the time of the event.