More to self-defense than ‘stand your ground’

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Williamson

The shooting of Trayvon Martin, a 17-year-old African-American boy in Sanford, Fla., has sparked outrage and criticism about Florida’s “stand your ground” law of self-defense that provides that a person lawfully acting in self-defense need not retreat before using force.

Anger about the shooting is understandable as George Zimmerman, the shooter, was unfairly suspicious of the boy and initiated a confrontation with Martin, who had done nothing more than walk through his neighborhood.

Like Florida, Colorado has robust self-defense laws, and there is generally no requirement that a person retreat before using otherwise lawful deadly force in self-defense.

The Colorado Constitution provides that self-defense is an inalienable right, and says that the right to keep and bear arms in defense of a home, person or property shall not be called into question. Physical force may be used to defend property, premises or a person. The degree of force used must be reasonable under the circumstances. In defense of a person, force may be used if it is reasonably believed that the aggressor is using, or will imminently use, unlawful physical force. However, if a person provokes the use of unlawful force by another person and does so with the intent to cause injury or death to the other person, he generally does not have the right to assert self-defense.

Deadly physical force may be used only if it is reasonably believed that a lesser degree of force would be inadequate, and it is reasonably believed that either the aggressor has put a person in imminent danger of being killed or receiving great bodily injury, or the aggressor is committing or about to commit an enumerated serious felony.

Passed in 1985, Colorado’s controversial “make my day” law lowered the threshold for the use of deadly physical force by an occupant of a dwelling. When an occupant of a home has a reasonable belief that a trespasser has committed or intends to commit a crime against a person or property within the dwelling and there is a reasonable belief that the intruder “might use physical force, no matter how slight, against any occupant,” deadly force may be used.

Although Colorado does not require a person to retreat before using force in self-defense, this “stand your ground” law cannot be asserted when a person claiming self-defense was the initial physical aggressor in the encounter. However, if a person initiates physical force, he may still have the right to use force against another if he first withdraws from the encounter and communicates his intention to do so to the other party.

Despite public outcry about Florida’s “stand your ground” law, this provision does not appear to be determinative in the shooting of Martin.

Rather, the essential question is whether Zimmerman was defending himself from a serious assault when he shot the boy.

Witnesses indicated that a physical confrontation took place immediately before the shooting. If, as reported by Zimmerman, Martin assaulted him and he reasonably feared death or great injury, he may have had the right to shoot in self-defense even though he appears to have pursued and verbally harassed the boy.

Zimmerman’s account of the encounter is suspect, but if not contradicted by police investigation, it is a plausible argument of self-defense.

Fortunately, Zimmerman was not held after his arrest. As a result, he has given explanations about the shooting to friends and family.

Upon further investigation, it would not be surprising if these conversations related differing accounts or are riddled with significant omissions.

Now that he has been charged with murder, these statements will likely come back to haunt Zimmerman in the ensuing prosecution of his case.

Although the law of self-defense in Colorado is powerful, residents should not be emboldened in their assertion of this right.

A police investigation of an encounter where self-defense is asserted may not accurately reflect the truth of what occurred because of varying recollections and motives of witnesses, or the absence of relevant physical evidence or eyewitnesses.

Moreover, to validly assert self-defense, a person must act in a “reasonable” manner. The determination of what is “reasonable” by a police officer or prosecutor reviewing an incident may not always be predictable.

Before using force, especially deadly force, it is only sensible to attempt to de-escalate the situation, to disengage or retreat from the threat if possible and to loudly communicate your desire to avoid a fight.

Force, especially involving the use of a deadly weapon, should be used only when there is no alternative.

Thomas R. Williamson has been a criminal defense attorney for 26 years. A former public defender, he is in private practice in Durango. Reach him at tomdgolaw@gmail.com or by phone at 903-1558.