Constitution Check: Has the self-defense idea of justifiable killing gone too far?


Trayvon Martin shooting protest. Wikicommons: David Shankbone

Lyle Denniston looks at the increasing attention given  to “stand your ground laws” in the wake of the George Zimmerman trial.


“My prayers are with all those who have the influence and power to modify the laws that left me with no verdict option other than ‘not guilty’ in order to remain within the instructions. No other family should be forced to endure what the Martin family has endured.”

 – An anonymous Florida woman known publicly only as “Juror B37,” who was on the jury in the trial of George Zimmerman and joined in last week’s verdict of not guilty on charges of killing Trayvon Martin.  She made the comment in a statement released by Cable News Network on Wednesday

“Separate and apart from the case that has drawn the nation’s attention, it’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods.  These laws try to fix something that was never broken.  There has always been a legal defense for using deadly force if — and the ’if’ is important – no safe retreat is available.”

– U.S. Attorney General Eric Holder in a speech on Tuesday at the NAACP’s annual convention in Orlando, Fla., referring to so-called “stand your ground” laws now in effect in Florida and some 30 other states.


The Constitution’s guarantee of “due process” to those accused of killing another person has long been understood to protect a right of self-defense – that is, a claim that the killing was justified by the circumstances at the time.  Back in English history, and for many years in some of the American states, it was the legal duty of the accused person to prove that defense.

The Supreme Court, however, made it absolutely clear in a decision in 1975 (in the case of Mullaney v. Wilbur) that it was the prosecution’s job to prove that the killing was not justified – in other words, once a defense lawyer raised a claim of self-defense, prosecutors had to disprove it.   The court conceded that it would be very difficult for the prosecutors to have to prove a negative, to refute such a claim, but it said that was “the traditional burden which our system of criminal justice deems essential.”

Customarily, prosecutors tried to counter the claim by arguing that the accused person could have evaded the threat by simply acting to defuse the encounter – in other words, by retreating from the scene, if that was an option.   In recent years, however, the spread of so-called “stand your ground” laws has reduced almost to the vanishing point the idea that an individual who truly believes he or she is facing a real threat of death or serious injury must attempt to retreat rather than acting to neutralize the threat.

After the Florida trial of neighborhood watchman George Zimmerman ended with a not-guilty verdict on charges of intentionally killing teenager Trayvon Martin last year, a lively debate has broken out over what role – if any – the “stand your ground” idea might have played in the case.

It is now clear, in the wake of remarks by one of the jurors, that the jury interpreted the judge’s instructions as imposing on them a strong duty to consider self-defense, if not literally to apply the concept of “stand your ground,” and to hold the prosecutors to the task of disproving self-defense.

Juror B37’s comments to the CNN television network suggested that she, for one, felt that there was no choice before the jury about that.   And Attorney General Holder’s reaction indicated that he was persuaded that it had figured in the trial, and that, as he put it, “such laws undermine public safety.”

Holder did not mention it in his Orlando speech, but the FBI does collect statistics on the impact that “stand your ground” laws have on murder trials, and especially on how those laws may influence jury verdicts when there is a difference in race between the killer and the victim.

Those statistics do suggest, at least to some analysts, that those laws do lead very often to findings that a killing was justified in more cases when race appears to be a factor.   When the killer is white and the victim is of a minority race, the data seem to show, the killing has been found to be justified in 29 percent of the cases in states without stand your ground laws, but that outcome rises to 36 percent in states where such laws are in effect.  By contrast, if the killer is of a minority race and the victim is white, the crime is considered justified in fewer than 3 percent of the cases.

Those are the results when the shooter and the victim are strangers, neither of them is a police officer, and the weapon used is a gun – that is, the combination of circumstances like those present in the Zimmerman case.

When that case first arose, the members of the state legislature who had sponsored the stand your ground law said publicly that it probably would not apply because, they said, Zimmerman appeared to have been pursuing the teenager, rather than the other way around.

Even so, something that approaches a national debate is now going on after the verdict, on the premise that the law somehow did get into the mix of that trial and that perception is leading to calls to reconsider whether justifiable killing needs to be redefined more narrowly.   The constitutional question thus arises: does the guarantee of “due process” in the Fifth and 14th Amendments support the right to stand one’s ground?

For now, the fate of such laws depends upon whether legislatures are willing to back away from them, and their apparent popularity may make that difficult.

But should a case arise in which a killing can be shown to have been unjustified except for that defense, then a civil lawsuit by the victim’s family could claim that the defense goes too far.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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