Critics say adding duty to retreat would better Florida's 'stand your ground' law

Last week, a jury deadlocked on Michael Dunn’s murder charge in a teen’s shooting.
Last week, a jury deadlocked on Michael Dunn’s murder charge in a teen’s shooting.
Published Feb. 20, 2014

In April 2005, as legislators moved closer to passing a bill that would become known as Florida's "stand your ground" law, then-Rep. Dan Gelber proposed a simple, 54-word amendment.

The gist: If you're attacked and you can safely escape without killing someone or risking death yourself, you should.

"It may be somebody that deserves it," Gelber said Wednesday. "But at the end of the day, if you can walk away safely or resist the impulse to kill, I think you ought to."

The bill passed nearly nine years ago, without his amendment. Instead, the language in the law, and in jury instructions, says a person who is attacked any place 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" if the person "reasonably believes" it's necessary to prevent death or great bodily harm.

And polls suggest it's popular among the public, and it's unlikely to be changed in the legislative session beginning in March. But since then, cases in which the expanded law has played a role have captured the attention — and often the ire — of the nation.

The acquittal of George Zimmerman brought protests and boycotts and sit-ins, but no change.

Criticism erupted again last week when a jury couldn't decide whether Michael Dunn was guilty of murder when he shot and killed 17-year-old Jordan Davis in Jacksonville after a dispute over loud music. A juror who spoke to ABC's Nightline Tuesday pointed to the self-defense law in jury instructions to explain why two of the 12 jurors refused to convict Dunn.

And if history serves, controversy will follow the case of former police officer Curtis Reeves, who says he was defending himself when he shot Chad Oulson in a Wesley Chapel movie theater after an argument over texting.

Gelber isn't surprised.

"We were saying all this back then," he said. "You're going to get the escalating scenario that's a normal occurrence in a parking lot or wherever … and all of the sudden somebody says something and there's a push and somebody gets shot."

"It has opened a very large can of worms," said Stetson Law professor Charlie Rose, "and we're getting results that society at large doesn't think makes sense."

Mark O'Mara, who defended Zimmerman, suggested Gelber's amendment, or one like it, would improve the law.

"The idea of having to try to retreat if you can without putting yourself in danger just makes a lot of sense," said O'Mara, who suggested a similar change last year. "I like that language."

O'Mara said the frequency in which "stand your ground" is being cited suggests more people may be quicker to shoot in self defense without trying to defuse the situation or walk away.

"The reality is, from 2005 to 2012, before the Zimmerman craziness, there were 216 'stand your ground' cases," he said. "I've got to imagine that we are having a significant number more 'stand your ground' arguments, because now every Tom, Dick and Harry says, 'I shot him because I was afraid.' And it's a get out of jail free card."

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The trend will continue, said Dennis Kenney, a professor at John Jay College of Criminal Justice. "Unfortunately, since the state is now heavily armed and has decided to remove the obligation to retreat, I would imagine that you can expect a good deal more of this," he wrote in an email. "For a free society to work, the police have to have a monopoly on legal violence. That requirement is now doubtful in Florida."

Mary Anne Franks, an associate professor of law at the University of Miami, said the issue may be more semantics, or implications, or perceptions, than what the law actually says.

The law's proponents, including the National Rifle Association, "want people to believe that this is an aggressive, manly law that allows you to use deadly force," she said. "It reinforces this misperception that you … don't have to think twice about shooting someone. That's the real danger."

She said the law as written gives killers incentives to invent things to be afraid of after shots are fired.

Dunn testified he thought he saw a shotgun, but police found no gun and no witnesses who saw one. Attorneys for Reeves, the movie theater shooter, have raised questions about an "unknown black object" security cameras show flying toward the man, introducing the possibility of reasonable fear.

"The real tragedy here is that these cases are happening at all," Franks said.

That's what Mary Martell thinks every time she hears about a new "stand your ground" case. "This law is a license to kill," she said. "You can shoot me and kill me and you can walk."

Martell's only son, Joe, was shot dead in 2008 in a crowd after a parade at a Pasco County festival. The man who shot him six times with a .45-caliber pistol said Joe Martell punched him once. The man said he had a heart condition and couldn't have sustained another punch.

The shooter, Max Wesley Horn, was acquitted.

"It's amazing how many people are using this law. It's like a free-for-all for murder out there," said Martell, 60. "The man who killed our son could've called the police if he thought there was a problem." Six years later, Mary Martell thinks about her son every day, especially when she watches her 13-year-old grandson, Joe's son, play baseball. He looks like his father.

Ben Montgomery can be reached at or (727) 893-8650.