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Standing Your Ground

By Rabbi Yair Hoffman

Halachic Musings

This Tuesday, Attorney General Eric Holder Jr. strongly condemned “Stand Your Ground” laws, saying that the measures “senselessly expand the concept of self-defense” and may encourage “violent situations to escalate.” The same day, entertainer Stevie Wonder announced that he was boycotting the state of Florida by not having concerts there, until they repeal their “Stand Your Ground” legislation.

Currently, these laws are on the books in more than 30 states, and they have become a focal point of both rioting and national debate in the aftermath of the acquittal of George Zimmerman, neighborhood watch volunteer, on murder and manslaughter charges in the shooting death of Trayvon Martin.

What is a stand-your-ground law? It is a law that a person may use force, even deadly force, in self-defense when there is reasonable belief of a threat, without an obligation to retreat first. In some cases, a person may even use deadly force in public areas without a duty to retreat.

This legal principle is certainly not new in this country. As early as 1921, Supreme Court Justice Oliver Wendell Holmes Jr., in Brown v. United States, created the following maxim: “Detached reflection cannot be demanded in the presence of an uplifted knife.”

Our question is, what does Jewish law say about the matter? Should a person be permitted to kill another, even a criminal, if there is an alternative approach to handle the problem? If not, is there a difference between a confrontation in one’s own home and one that takes place elsewhere?

The Rambam in Hilchos Melachim 9:4 writes that if a pursuer is chasing a descendant of Noach, and the one being pursued has an alternative option of removing the threat, it is forbidden for him to kill the pursuer. But if there is a question as to whether this will work and there is danger to his own life, then one must protect one’s own life.

It would seem that this ruling of the Rambam applies to our question concerning stand-your-ground laws. The rationale for the prohibition is provided in the Talmud with the expression “Why is your blood any redder than his?”

The entire chapter nine in the Mishneh Torah provides more insight into this very contemporary legal argument. The alternative choices are to either confuse him with words, hurt one of his limbs, or even leave the confrontation.

If, however, the person is robbing him, there is no obligation to leave and lose one’s money. There is an obligation, though, to minimize what one must do to the pursuer. If one can demonstrably get away without killing him, then one is obliged to do so. The same is true with hurting him. Indeed, if one could have avoided the confrontation and one didn’t, then generally speaking there is no exemption and he would be liable for charges of murder according to the Rambam.

Is there a distinction in one’s own home? It is clear from the Rambam in that section that since someone who has broken into one’s own home is generally after money, there is no obligation to leave the money to the intruder in order to avoid killing him. Therefore, there may be an exception in regard to one’s own home and where the pursuer is after money. Otherwise, the stand-your-ground laws would be wrong.

But should Zimmerman have gotten off scot-free? The Rambam in Hilchos Rotzeiach and Shemiras HaNefesh (1:13) writes: “Whoever could save a person being pursued through just [taking out] one of the limbs of the pursuer, but does not bother to do so and rather kills him, this person has spilled blood and incurs the death penalty, but the court of law does not put him to death.”

Although the Tur (C.M. 425) questions why the death penalty is not enforced in this case, many of the commentators (see Tzitz Eliezer IV #24) explain that it is a lower level of death penalty incursion, and only a goel ha’dam may put him to death, but no one else may—not even a court of law.

But what about the fact that these stand-your-ground laws may help society and even reduce crime? John Lott, in his third edition of More Guns, Less Crime (University of Chicago Press, 2010), writes that research shows that states adopting stand-your-ground laws reduced murder rates by 9 percent and overall violent crime by 11 percent. He writes that this is even after accounting for a range of other factors such as national crime trends, law-enforcement variables (arrest, execution, and imprisonment rates), income and poverty measures (poverty and unemployment rates, per capita real income, as well as income maintenance, retirement, and unemployment payments), demographic changes (broken down by race, gender, and age), and the national average changes in crime rates from year to year, and average differences across states.

Indeed, Florida state representative Dennis Baxley, an author of the Florida law, notes that crime rates in Florida dropped significantly between 2005, when the law was passed, and 2012.

It would seem to this author that even though these statistics may be true, it would certainly be extreme to create such legislation. If, for example, we were to impose the death penalty for drunk driving, even when one has not killed anyone, it is certain that deaths of innocent victims of drunk drivers would be substantially reduced. Nonetheless, it would be very wrong to impose such a draconian penalty—it would be overkill, so to speak.

By the same reasoning, it would seem that the stand-your-ground laws are overkill too, and are not in accordance with the Rambam.

So what should George Zimmerman have done? Initially, he most certainly should have listened to the 911 operator and waited for the police before confronting Trayvon Martin. v

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Posted by on July 18, 2013. Filed under In This Week's Edition. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.