Thursday, April 26, 2012

Standing Your Ground

Like all of you, I’m sure, I’ve spent time the course of these last weeks pondering the case of poor Trayvon Martin, the unarmed teenager who was shot and killed at the end of February by the community watch coordinator in a gated community near Orlando, Florida. How this will all play itself out in the courts, who knows? Whether George Zimmerman, the shooter, will eventually be convicted of second-degree murder remains to be seen. If this will turn out to be a precedent-setting trial with far-reaching implications or merely a case of someone being made to pay the price for behaving recklessly in public can also not yet be known. From every vantage point, in fact, there are far more questions so far than there are answers. As the arraignment of the shooter is only scheduled for the end of May, it seems clear that this is going to remain a raw, upsetting issue for Americans to contemplate well into the summer and probably long after the summer as well. And it also goes without saying that the specific way Florida’s bizarre “Stand Your Ground” law will be interpreted in the context of the incident at hand—an interpretation that has yet to become obvious to anyone, including, it seems, our most senior jurists—will be at the heart of the matter.

Yet, for all the lack of clarity regarding all the issues mentioned above, there are also many aspects to the story regarding which all Americans can surely agree. The death of a child is a tragedy for us all regardless of the circumstances that bring it about, an unspeakable horror for that child’s family, a disaster for any society that wishes to think of itself as civilized and secure. Trayvon leaves behind parents and an older brother, and we can surely all agree that their grief does not need to be explained or justified with reference to what the boy may or may not have done in the minutes prior to his death. And, of course, none of us can dispute that whatever good Trayvon might have done in the world had he lived will now be left undone. (Whether the same will eventually have to be said of George Zimmerman will depend on the outcome of his trial.) Nor do I think this national paroxysm of emotion we have been experiencing over the last month and a half has been unhealthy or unwarranted. Indeed, I am proud to be part of a nation that grieves for the loss of a single child regardless of its circumstances and regardless of whether that child’s death does or does not turn out eventually to be a legally punishable offense. And the recently re-opened investigation into the 1979 disappearance of little Etan Patz leaves me feeling the same way: horrified and dismayed by the story itself, but also proud to be part of a nation that considers it entirely reasonable to pursue the disappearance of a single child this long after the fact even if the only truly plausible outcome to the renewed interest in the case seems now to be the possibility of bringing some belated closure to his parents.

Today, however, I would like to write specifically about the “Stand Your Ground” law that is at the heart of the Trayvon Martin case and which is similar to laws on the books in sixteen other states as well, New York State not included. To understand those laws, however, it is necessary first to understand the legal principle called the Castle Doctrine, which is defined the most simply as the right any home owner has—because a persons’ home is his “castle”—to use force, including deadly force, against an unwanted intruder when, as the New Jersey version of the law reads, “the actor reasonably fears imminent peril of death or serious bodily harm to himself or another." The idea is simple, then: if someone invades your house and you feel reasonably that your life or anyone’s life, or your or anyone else’s physical wellbeing, is in serious danger, you have the right to attack that person without becoming liable to subsequent prosecution. The concept of the “Stand Your Ground” law is simply the same concept applied to wherever an individual might be when he or she reasonably fears imminent peril, and not just one’s home or (in some versions of the Castle Doctrine) one’s car or workplace.

As noted, there are sixteen states along with Florida that have expanded laws based on the Castle Doctrine into laws loosely called "Stand Your Ground" laws. (These laws have also been called “Line in the Sand” laws or “No Duty to Retreat” laws, but in the wake of the Trayvon Martin affair it seems the “Stand Your Ground” label will be the one that sticks.) Nor is this a specifically Floridian issue: all together there are thirty-two states, not including New York, that have or are currently considering enacting some version of Castle Doctrine or “Stand Your Ground” laws on the books.

From a Jewish point of view, the most interesting part of the issue has to do with the concept of self-definition: the right to self-defend using deadly force without needing to fear subsequent prosecution becomes operative when an individual, to cite the Arizona version of the law, “reasonably believes himself or another person to be in imminent peril of death or serious physical injury.” In other words, the laws grants an individual the right to act on how he or she feels at any given moment regardless of how an uninvolved bystander might understand the situation and also regardless of any details regarding the situation that come out afterwards, for example as part of a police investigation, but which the individual applying the deadly force has no way of knowing at the moment. It’s all about how you feel, about whether you self-define as an individual in imminent peril of death or physical injury.

Should thoughtful citizens condemn these laws simply because no legal system can function well—or even, perhaps, at all—when accused individuals can simply announce that they felt some specific way at the time of some specific incident, then walk away from the proceedings secure that no prosecutor, no matter how skilled, can prove beyond any sort of reasonable doubt that that person was not feeling that way at the time of the incident? You could argue just that, I think, and reasonably. And yet Scriptural precedent is equivocal. I am thinking specifically of the passage in Deuteronomy that sets forth the various grounds for exemption from military service. (My colleague and my friend, Rabbi Ben Kramer, has just been writing about these laws and I’ve been reading along as he’s worked, so my understanding of this specific passage is based to a certain extent on his interpretive efforts.) The law as set forth in Deuteronomy 20 seems to be based on the rational supposition that the ability of an army to fight effectively will be seriously hampered by having in the ranks individuals whose hearts will be elsewhere and who consequently will possibly be thinking more of their own survival than of playing whatever role necessary to achieve victory.

There are four grounds for exemption, of which three seem to go together. If a soldier, for example, has betrothed a woman but not actually married her, he is deemed exempt from military service because he will be overly focused on the possibility of some other man marrying his betrothed should he die on the battlefield. The same situation pertains for the soldier who recently has built a new home but has not yet moved into it (the Torah talks a bit vaguely about “dedicating” the house, presumably by affixing a m’zuzah to the doorpost and moving in)—he too, it is feared, will be over-focused on his own survival and the concomitant possibility of someone else moving into his new home in his place. And the same too applied to the soldier who recently has planted a vineyard, but who has yet to harvest from it its grapes—his mind too could possibly be elsewhere—and specifically on his own survival instead of the good of the fighting corps—and so he too must be exempted from service. These three exemptions are easy to understand and easy to prove: either a soldier is or is not engaged to be wed, and he should be able easily enough to prove his status, as should the owner of a new home or a new vineyard. But the fourth category is the more interesting one, as it grants an exemption from service to the timorous, faint-hearted soldier, who must be sent home not because of unfinished business elsewhere but simply because, as the Torah says explicitly, his terrified presence will demoralize his fellow soldiers and induce in them the same fearfulness to which he himself has fallen prey.

Interestingly, the Torah itself sets this fourth exemption apart, setting it clearly on its own and in its own category but without saying exactly why. What the ultimate reason is, who can say? (Rashi has the idea, based on a passage in the Talmud, that it has to do with who formally announced the exemptions to the men in the ranks, but that is only one possible explanation.) In my opinion, thinking along with Ben Kramer here, the issue has to do specifically with the question of an individual’s right to self-define.
The sages in ancient times debated whether there needed to be physical evidence of the soldier’s pusillanimousness or if the soldier could simply announce that he feels too terrified of battle—for whatever reasons at all—and needs to be permitted to go home. There are many different opinions regarding how such inner terror could be adequately “proven” (one idea in the Talmud is that the test should be whether a man can keep his bladder closed when he is shown an unsheathed sword), but the law ultimately requires that the soldier’s inner fearfulness be manifested in some demonstrable way: merely saying he feels that way is not to be enough.

I think that line of thinking could be thoughtfully applied to the debate surrounding the “Stand Your Ground” laws. Clearly, there are moments when anyone can prove that his life is in danger. One can imagine many scenarios in which any reasonable onlooker would conclude as much, and the right to defend one’s own life, or the life of another person, against imminent attack is a basic human right. The question worthy of debate has to do with the degree to which one can self-excuse for using deadly force against another person by self-defining as someone who felt his or her life to be in danger. Is it reasonable simply to require a defendant to assert as much under oath? That seems to be the way the laws in many states are written. But even our sages in ancient times understood the perils involved in allowing such an unbridled right to self-define to function as a get-out-of-jail (or, in the Scriptural mode, a get-out-of-the-army) card. It seems to me that a legal system cannot function well if accused individuals are awarded the right to avoid responsibility for their actions merely by saying after the fact how they felt at the time. If a jury of reasonable citizens cannot be convinced that they too would have felt their lives in danger had they been in the defendant’s shoes at the specific moment under consideration, then the mere assertion that one felt oneself to be in danger should not be enough to require a verdict of not guilty.

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