A Correction and Apology Regarding the New York Times Zimmerman Editorial

In a post Monday, I criticized the New York Times editorial that read, in relevant part,

The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of the now-notorious Stand Your Ground provision in Florida’s self-defense law. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.

These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved.

One thing I argued was that there was no reason to think that the jury had relied on the Stand Your Ground instruction, since that’s relevant only when, in “the circumstances by which [the defendant] was surrounded at the time the [deadly] force was used,” the defendant had the opportunity to retreat with safety — something that didn’t seem to be part of either the prosecution’s or defense’s factual theory. It thus struck me that the issues before the jurors were matters, such as whether Zimmerman reasonably feared death or serious bodily injury, on which the law was unaffected by Florida’s Stand Your Ground statute.

Nonetheless, as some commenters noted in the last several hours, one of the jurors said in an Anderson Cooper 360 interview,

JUROR: Exactly, exactly. We looked through pretty much everything. That’s why it took us so long. We’re looking through the evidence, and then at the end we just — we got done, and then we just started looking at the law. What exactly we could find, and how we should vote for this case. And the law became very confusing.

COOPER: Tell me about that.

JUROR: It became very confusing. We had stuff thrown at us. We had the second-degree murder charge, the manslaughter charge, then we had self-defense, stand your ground, and I think there was one other one. But the manslaughter case — we actually had gotten it down to manslaughter, because the second degree, it wasn’t at second degree anymore….

COOPER: Did you feel like you understood the instructions from the judge? Because they were very complex. I mean, reading them, they were tough to follow.

JUROR: Right. And that was our problem. I mean, it was just so confusing what — with what and what we could apply to what. Because I mean, there was a couple of them in there that wanted to find him guilty of something. And after hours and hours and hours of deliberating over the law and reading it over and over and over again, we decided there’s just no way — other place to go.

COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?

JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.

It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the … Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers. (This doesn’t mean that we know the jurors likely would have reached a different result had Florida had a duty to retreat, rather than having a stand your ground law; but the Times simply said “consider[ed] … in light of,” and the juror’s statement supports that.)

Nonetheless, I continue to think the Times editorial was wrong in what it said Stand Your Ground means: “Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she ‘reasonably believes’ it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.” Actually, it is under normal general American self-defense law, which is on the books in every state, a person may generally use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm. “These laws” do “sound intuitive,” which is why they have been universally adopted everywhere in the U.S.

The continuing controversy over “stand your ground” vs. “duty to retreat” is not about these rules. Rather, it is about the separate question whether a person outside the home may use deadly force “if by retreating [at the time the deadly force was used] he could have avoided the need to use that force.”