Legal Commentary

A few days ago I saw this story from Florida about the duty to retreat before using deadly self-defensive force.  Florida is one of a growing number of states that has a "stand your ground" law for all self-defensive force, and permits the use of deadly self-defensive force where the actor "reasonably believes it is necessary to . . . prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony."  A "forcible felony" is defined in Florida as "treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual."

In the story, a man, from inside his house, hears his SUV turn on outside, grabs his gun, heads outside his house, and sees his car pulling out of his barn.  He sees someone's arm reach outside the passenger side, and he believes that the person might have a gun.  The car stops directly in front of the man.  Then things become less clear.  He raises his gun and shouts stop.  He then claims that the car is "moving directly toward him" (did it start moving after it had come to a stop and after he pointed his gun at it?).  "Fearing for his life," the man then fired 6-8 rounds into the front windshield (6 to 8!), whereupon the car backed up and landed in a ditch (no shots seem to have been fired back).  The man's shots killed one of the people in the car.

While some of the facts at least as reported by CNN are a bit mystifying, I want to set that aside because I simply don't know enough about the particulars and confusion often reigns when all one has is a news reports.  Instead I want to ask whether a law like Florida's would have allowed the car owner to shoot to kill if he had only heard the car ignition and run out to see the car driving away.  I think that the answer is yes, and it suggests to me that the 'stand one's ground' statute is, at least in part, not really about self-defense at all.  It's about a certain idea of proper, rightful conduct -- here justification is about conduct that is deemed good, praiseworthy, righteous, and something much more than merely tolerable or non-criminal.

Let's assume that when the thieves broke into the car owner's barn and stole the car, they could be convicted of burglary in Florida (a probable result).  Let's imagine also that there was never any physical danger to the car owner.  What would then be the reason to permit him to use deadly self-defensive force?  The reason cannot be self-protection of any kind, because there is absolutely no danger at all to him.  Why allow the use of deadly self-defensive force when there is no need for self-defense?

The only reason I can conceieve would be that it is good and right for the car owner to shoot.  Here "justified" seems to mean something exactly like "righteous" -- the Florida legislature wants him to shoot (one can make retributivist and utilitarian arguments in all directions) because people living in a civilized society ought to do just that when their property has been stolen.  You owe it to yourself, and to the rest of the civilized world, not to retreat and to act righteously -- bravely, and not like a coward. 

This type of argument is one which may of course be met by the claim that the duty to retreat is worthwhile because taking a life is never justified -- never good and righteous -- if the actor could have retreated to complete safety.  But even those arguments are laced, it seems to me, with notions of righteousness.  You act well -- in a praiseworthy way and not merely in a tolerable way, let alone in a way not of concern to the criminal law -- when you retreat to the extent possible before using deadly force.  That is what right thinking people, not merely non-criminal people, do.

And if it is true that the duty to retreat implicates these notions of righteousness in connection with justified conduct -- if it really is about that which we wish to praise at least as much as that which we do not wish to condemn -- then it makes perfect sense that we would see very different rules in different jurisdictions, reflecting the considerable cultural differences in what people in an increasingly pluralized (fragmented?) country think righteous.