Tuesday, October 15, 2013
Elizabeth Berenguer Megale (Savannah Law School) has posted Disaster Unaverted: Reconciling the Desire for a Safe and Secure State with the Grim Realities of Stand Your Ground (American Journl of Trial Advocacy, Forthcoming) on SSRN. Here is the abstract:
“On February 26, 2012, heavy pressures collided in a tempest resulting in Trayvon Martin’s death. On one side, an eager neighborhood watchman desperate to curtail the rising vandalism and crime in his gated community. On the other, a teenage boy walking from a nearby store through this same neighborhood toward the townhome where he was temporarily staying while visiting his father. In the background, a galvanizing law seven years looming, burrowing into societal norms, making it okay to shoot first and ask questions later.” Florida’s Stand Your Ground statutory scheme has dominated the media since the calamitous encounter between George Zimmerman and Trayvon Martin. This Article follows up on this Author’s 2010 article, Deadly Combinations: How Self-Defense Laws Pairing Immunity with a Presumption of Fear Allow Criminals to “Get Away with Murder, 34 Am. J. Trial Advoc. 105 (2010). In 2010, this Author predicted the law would promote a rise in vigilante justice in that it “creates a mindset to ‘shoot first, ask later.’” This Article takes that prediction a step further and boldly states that the legislature has fundamentally changed the nature of self-defense. Rather than recognizing an affirmative defense to arguably justifiable uses of force, it has legalized many forms of homicide. Additionally, this Article analyzes the law through a lens of embodied rationality to identify the culture-law-culture cycle and the competing narratives that (1) gave rise to the law, (2) impacted the actions of both Zimmerman and Martin, and (3) affected prosecution, defense, and judicial legal strategies and choices related to the shooting and resultant trial. This article concludes by asserting Florida’s Stand Your Ground law does not reflect collectively-held norms and values as evidenced by the media narratives surrounding Martin’s death. As such, this Article calls for legislative change to retreat from legalized homicide returning to the maxim of self-defense as an affirmative defense.