Correcting Confusions about Self-Defense Law

Over at the Volokh Conspiracy, Eugene Volokh posts about some of the confusion over self-defense law that is surfacing in news coverage of the Zimmerman verdict.  Volokh notes that various branches of the New York Times seem to be writing that stand your ground laws are an extremely recent phenomenon, something that Volokh notes is not the case since this seemed to be the majority rule for jurisdictions in 1968.

Volokh also criticizes the New York Times Editorial Board for writing that the main reason why Zimmerman was so likely to succeed in his defense was that the stand your ground law required that Zimmerman only needed to prove that he reasonably believed that deadly force was necessary.  Volokh correctly notes that this is a misstatement of the stand your ground law, which addresses duty to retreat.

Where I think Volokh makes a mistake, however, is where he says that the requirement that a defendant reasonably believe that deadly force is necessary to avoid death or grievous bodily harm is the law in all 50 states.  This rule is certainly the law in a majority of jurisdictions, but it is not universal.  

Three states employ a subjective approach, which simply requires that the defendant believe (reasonably or not) that deadly force is necessary to avoid death or grievous bodily harm. These states are: Delaware (Moor v. Licciardello, 463 A.2d 268, 272 (Del. 1983)), Ohio (State v. Sallie, 693 N.E.2d 267, 270 (Ohio 1998)), and Virginia (Yarborough v. Com., 234 S.E.2d 286, 290 (Va. 1977)).

A cluster of other states employ a Model Penal Code approach, where defendants may receive lesser sentences even if they less-than-reasonably believed that they were in danger of death or grievous bodily harm (for instance, a defendant who negligently believes he is in danger when he, in fact, is not, will be convicted of negligent homicide, or whatever crime corresponds to homicide committed when the defendant is negligent). These states do allow for self-defense in the event that a defendant prove he or she had a reasonable belief that deadly force was necessary to prevent death or grievous bodily injury, but the overall schematic seems more complicated than jurisdictions that only allow the reasonable belief option. These states are California, Kentucky, Maryland, Nebraska, North Dakota, and Pennsylvania (If I include citations for all of these, I'll run out of room. I am getting all of this from my paper on this subject).

Volokh’s mistake here is minor, since the vast majority of jurisdictions follow the reasonable belief approach.  The major mistake rests with the New York Times Editorial Board for portraying this approach as 1) uncommon and; 2) lenient, since compared to Model Penal Code and subjective jurisdictions, the reasonable belief formulation of self-defense is the hardest for defendants to prove.

While the general tenor of the Editorial Board’s argument is that conceal and carry laws are to blame for the tragedy, the Board’s focus on this policy argument at the expense of legal accuracy causes them to jettison their credibility.  There are important issues to discuss here, but muddling things together will take the debate nowhere.