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Standing Our Ground on “Bad Laws”

April 23, 2012 1 comment

Reader JJM sent along a New York Times editorial entitled “Embarrassed by Bad Laws,” which argues that Florida’s now-infamous “‘Stand Your Ground’ self-defense law[]” is a) a “bad law”; b) the result of a nationwide, state-level lobbying by the American Legislative Exchange Council (“ALEC”) and the National Rifle Association; and c) the real reason why many of ALEC’s corporate supporters are distancing themselves from the policy group.

“Bad facts make bad law” is a common utterance of dissenting judges who believe that the majority has reached the wrong legal conclusion because the case before the court involves unusual or extreme facts atypical of the situations to which the law or legal conclusion is most likely to apply.

Bad facts may also make “bad law”; in other words, bad facts like the tragic circumstances surrounding the death of Trayvon Martin may lead the court of public opinion’s multitude of judges to declare a law bad. In the Martin case, Florida’s “stand your ground” law is “bad” because it created an incentive for George Zimmerman to kill Martin (assuming Zimmerman knew of the law, which isn’t an unreasonable assumption given Zimmerman’s status as a neighborhood watch person, whatever that means) or it created a legal situation in which Zimmerman is unlikely to be punished for his actions. (The judges of the court of public opinion rarely are as precise as we might like them to be, but these seem to be the two main reasons why someone might decide the Florida law is bad.)

It’s easy to imagine a factual situation in which an aggressive self-defense law would not be “bad,” and even might be considered praiseworthy. For example, if such a law saved from prosecution an older woman who defended herself from a home invader by striking him with a hammer she happened to grab when the invader later died as a result of the strike, it likely would be considered “good,” or at least “just” or “fair” if it received any attention at all.

What these examples highlight is that our popular opinion of a law is likely to be a mere reflection of our opinion about the actors in the underlying fact situation to which the law is applied, and for the most part in Martin’s case, the good and bad roles in the underlying fact situation set up pretty starkly and uncontroversially.

This isn’t to say that there aren’t actually bad laws, but it is interesting that no one seems to have examined the text of the law in question. It is available here, and the applicable provision appears to be subsection (3), which reads:

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.

Exploring all of the different and competing policy factors internal and external to this penal statute to decide whether it is a good law or a bad one is beyond the scope of this post. For now, I think it’s enough to note that the provision doesn’t appear to be a bad one on its face and recognize that our popular opinion of the law as a “bad law” likely has more to do with a narrow consideration of its application to one set of facts (and indeed, one telling of those facts). Had the stronger, armed Zimmerman attacked the weaker, unarmed Martin unprovoked, as many assume, but then suffered a fatal injury at the hands of Martin in a scuffle following the initial attack, it seems unlikely that this law would have come under such sudden public scrutiny. Moreover, if the popular telling of the actual encounter between Zimmerman and Martin is accurate, this provision probably doesn’t apply. According to that narrative, Martin never attacked Zimmerman, and without a predicate attack, Zimmerman’s right to stand his ground never arises, and his reasonable belief as to the necessity of his use of defensive force is irrelevant.

Categories: Current, Discourse, Law