"Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing, not a categorical proof of guilt."
--Oliver Wendell Holmes, Brown v. United States, 1921
Yoshihiro Hattori was a 16-year-old boy, almost 17, at the time of his death in Baton Rouge. Hattori—we will call him Yoshi—was a Japanese exchange student; the date of his death was October 17, 1992. Yoshi and his American host had been invited to a Halloween party, and Yoshi was wearing a tuxedo as a costume representing John Travolta from Saturday Night Fever. His American exchange brother may have been wearing some more aggressive Halloween costume; this is unclear from the reports. In any case they went to the wrong house; they went to the house of a man named Rodney Peairs. They rang the doorbell, but no one answered. Mrs. Peairs, looking out through the blinds, saw the teenagers and was alarmed. "Rodney," she said, "get your gun." Rodney got his gun, a .44 Magnum, and opened the door of the carport, apparently not the door on which the teenagers had knocked. The boys were walking away by the time Peairs opened the door, but Peairs barked at them to freeze. The American teenager saw the gun and froze, but Yoshi—perhaps thinking that Peairs had yelled "Please"—began walking rapidly toward the armed man, saying "We’re here for the party." Peairs shot him at close range.
Peairs retreated into his house. Yoshi’s American host ran to a neighboring house and asked for help. The neighbors called the police and an ambulance. It took almost 40 minutes for police to arrive, which seems like rather a long time; Peairs and his wife stayed locked in their house, a dying boy lying at their door.
Police interviewed Peairs, who told them that he had "messed up". He was not arrested, and no charges were filed in the next few days. Louisiana—like Florida—had a controversial law which explicitly gave homeowners the right to defend their property with deadly force. A firestorm of criticism arose. The governor of Louisiana and the Japanese consulate, among others, demanded that Peairs be arrested, and eventually he was. He was charged with manslaughter.
Peairs was remorseful, cried repeatedly on the witness stand, and apologized to Yoshi’s parents, saying that he was "sorry for everything." He told reporters that he would never own a gun again. He was acquitted. The jury felt that he was within his rights to defend his home if he reasonably felt that he was under attack.
Peairs’ acquittal outraged Japan, the hysteria increasing in volume after three more young Japanese men (two more exchange students) were killed in other incidents. Two Japanese youths were killed in a carjacking in San Pedro, California, and a third in a shooting in Compton, California. Yoshi’s family sued Peairs, and won a civil judgment of $650,000, about half of which was donated to organizations which lobby for gun laws. One million Americans and 1.6 million Japanese signed a petition asking for tighter gun laws. This contributed significantly toward the passage of the Brady Bill in late 1993. In December, 1993, the American ambassador to Japan, Walter Mondale, presented a signed copy of the Brady Bill to Yoshi’s parents.
On May 7, 1917, a man named Robert B. Brown shot and killed one J. P. Hermis in Beeville, Texas. There had been trouble between Brown and Hermis for a long time. Hermis had twice assaulted Brown with a knife, on previous occasions, and had stated in the presence of witnesses that the next time the two men met, one of them would be carried off in a black box. Because of Hermis’ threats, Brown had gotten into the habit of carrying a gun.
On May 7, Brown was supervising the construction of a new post office in Beeville; I believe that the post office building still stands. Brown’s gun was in the pocket of his coat, which was lying on the ground. There were piles of dirt all around, as there often are at a construction site. Hermis approached the construction site in a cart driven by another man, and began to load some dirt from one of the piles into the cart. Brown told him to stop it, to leave the pile of dirt alone. Hermis pulled a knife and advanced on Brown. Brown ran to his coat, pulled the gun from his pocket, and ordered Hermis off the property. Hermis refused to leave, and continued to wave the knife menacingly at Brown until Brown shot him.
Of particular interest. …Brown shot him four times. By the time of the fourth shot Hermis was lying on the ground and was no immediate threat to anyone. In British common law a person has a legal duty to retreat in the face of danger if he or she can, rather than to use deadly force. This had been subsumed into American law. It has been established law in England since the 17th century that a person who uses deadly force is criminally liable for the death if he could have avoided the use of force.
But the concept of a duty to retreat is basically unworkable in a frontier environment in which you have a heavily armed population and very sparse law enforcement, law enforcement that is often a day’s ride away. For this reason, in the era of the American frontier, state after state passed legislation explicitly stating that there was no duty to retreat in the face of a threat. Under Texas law, Brown would have been within his rights to defend himself.
The shooting, however, had taken place on land owned by the United States, a post office being constructed. That made it a federal case. Under federal law, Brown was still bound by the duty to retreat. A recent case, Battle v. United States (1908) had reiterated that there was a duty to retreat. The judge instructed the jury that "it is necessary to remember, in considering the question of self-defense, that the party assaulted is always under the obligation to retreat so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm." The judge—reminding you now that the Florida law is called the "Stand Your Ground" law—the judge also specifically instructed the jury that Brown was not entitled to stand his ground; those specific words were used.
Brown was convicted of murder in the second degree. He appealed; the conviction was upheld on appeal. He appealed again, and again; the conviction was upheld all along the line, until the case reached the Supreme Court. The Supreme Court, in a 7-2 decision written by Oliver Wendell Holmes, reversed the ruling, and held that Brown had the right to defend himself against a knife-wielding man who had made numerous threats against him in the past.
My research on this case started with a memory of Holmes saying "the law cannot compel a man to be a coward." I tried researching that phrase but came up empty; I did, however, find numerous citations of Holmes writing "a man is not born to run away."
But that phrase—like the phrase "corporations are people" in Citizens United, or "baseball is a sport, not a business" in the Federal League case, also written by Holmes in 1922—the phrase is often quoted from the decision, but does not in fact appear there (in fact, the Federal League decision stated explicitly and at length that professional baseball is a business, but concluded that the federal government had no legitimate reason to regulate it.)
The Brown case is sometimes cited—again inaccurately--as the death knell of the duty to retreat in the United States; the duty to retreat had been chipped away by state laws, and some would say that it was destroyed by the Brown decision. Having read the decision, 90 years after the fact, it does not appear to me that this was the intention of the court. What Brown does say is not that man is not born to run away, but that it was unreasonable for the government to apply the law in this manner. The problem, stated by Holmes, was that "concrete cases have a tendency to ossify into specific rules without much regard for reason." This I take to be the essence of the decision: "Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing, not a categorical proof of guilt."
Not a categorical proof of guilt for Brown; not a categorical proof of innocence for Zimmerman. "There was evidence," wrote Holmes, "that the last shot was fired after Hermis was down. The jury might not believe the defendant's testimony that it was an accidental discharge, but the suggestion of the government that this Court may disregard the considerable body of evidence that the shooting was in self-defense is based upon a misunderstanding of what was meant by some language in Battle v. United States. Moreover, if the last shot was intentional and may seem to have been unnecessary when considered in cold blood, the defendant would not necessarily lose his immunity if it followed close upon the others while the heat of the conflict was on, and if the defendant believed that he was fighting for his life." The lower courts had drawn a line in the law where no line could be seen in nature, between the third and the fourth shots.
Since the Supreme Court had not explicitly thrown out the duty to retreat, supporters of that duty—what we might call "The Left"—began gradually nursing it back to health.
The case of Yoshi Hattori was, I think you would agree, very much like the case of Trayvon Martin. In both cases a skinny, unarmed teenager weighing less than 150 pounds was shot by an older, larger man who thought that he was defending his property against what turned out to be an imaginary threat. In both cases the issue of race was quickly raised, and became central to the case.
The Hattori case was, in the end, a victory for The Left; they were able to use the Hattori case as a part of a package of pressure tactics to win passage of the Brady Bill, which had been kicking around Congress for several years. The Left now is trying to use the Trayvon Martin shooting to repeat and build upon their success of 20 years ago.
The battle lines in this area could be packaged as the Duty to Retreat against the Right to Stand Your Ground. The battle between Duty to Retreat and Right to Stand Your Ground is much older than the United States, and has been actively contested in the United States since about 1840.
In the years 1840 to 1900, the Right to Stand Your Ground won the great majority of the conflicts between these two policies, because, as I said, Duty to Retreat was simply an impractical concept in a vast frontier with grossly inadequate police protection. Between 1900 and 1920, Duty to Retreat made a strong comeback. The frontier was closing up; we were working hard to reduce violence in our culture, and the Duty to Retreat was brought out of the closet as part of that effort. The Brown decision in 1921 was perceived as a victory for Right to Stand Your Ground, and was perceived at the time as a huge setback for Duty to Retreat.
If I could introduce my own bias here. . . .in general I side with the Right to Stand Your Ground crowd. It is my view that much damage is done to the public when courts airily declare rights that the government has no practical ability to enforce. Duty to Retreat is a way of saying to the public that "the government will defend you. Put your weapons away and retreat; the government will protect you." But too often, the government proclaims that it will protect you, and then it wanders away and doesn’t make any real effort to protect you. In this way, what is intended as a policy to reduce violence merely serves to protect the violent.
There have been too many instances, in American history, of the Duty to Retreat being applied haphazardly to the victims of violence—as it was in the Brown case. New York City from 1965 to 1984 made hardly a half-assed effort to protect citizens from violence on the subways—but attacked Bernard Goetz like a hungry lion when he pulled a gun on those who had encircled him and demanded money (and there again the last shot, fired into a victim who was already down, became the lynchpin of the prosecution’s argument.) There have been cases in which people who shot burglars inside their own home were prosecuted for doing so. There have been cases of burglars who filed and won civil lawsuits against those whose homes they were burglarizing. This is absurd. The lack of common sense that the government shows when it does these things provokes states to pass strong and perhaps over-the-top legislation defending the right of citizens to Stand Their Ground.
I defend the right of citizens to Stand Their Ground. But under absolutely no circumstances can the right to Stand Your Ground be taken to suggest that there is a right to gun down an unarmed teenager in a confrontation that you yourself have provoked. The urgency of justice for Trayvon Martin is not merely a reminder of how much work we have in front of us on the issue of race. There is also this: that the principles of justice are tarnished when they are applied without reason. When the Duty to Retreat was applied without reason in the Brown case, that resulted in a black eye for the Duty to Retreat forces. When the Stand Your Ground principle was applied without reason to the death of Yoshi Hattori, that helped to bring about the Brady Bill.
And, as a defender of Stand Your Ground, I will tell you without any hesitation that if you defend George Zimmerman beyond the point of reason, it will result in a serious setback for your side of this debate. . .for our side of this debate.
Look, I don’t know whether there was a fist fight between Zimmerman and Trayvon Martin, and I don’t care. In the Brown case, the government had argued that Hermis had not menaced Brown with a knife on that occasion; he had a knife in his hand, but he had not threatened Brown with it on that day. What Holmes said in response, paraphrasing it but in pretty direct language, was "I don’t care whether he had a knife or not. I don’t believe you, to begin with, but I also don’t care." And that’s what I am saying here: I don’t care whether there was a fight between Zimmerman and Martin or not; I don’t believe Zimmerman’s apologists, but I also don’t care. It doesn’t make any difference.
Someone on this site has speculated that, when a little bit of the dust settles, Zimmerman will be charged with Manslaughter. Well, since we are a’speculatin’. … .my guess would be that when the dust settles, Zimmerman may find himself facing a charge of capital murder, with the death penalty staring through a window of the courtroom.
Why?
First, when you shoot and kill and unarmed person after having been told by a policeman to stand down, that’s not manslaughter, that’s more in the line of murder.
Second, the accounts conjured up by Zimmerman’s defenders out of the wisps of fact available are not credible. It is an insult to our intelligence and it is an affront to the most basic notions of justice to suggest that there is some reason why Trayvon needed to be shot. As a defender of the right of citizens to Stand Their Ground, I don’t want that garbage put out there on our side of the fence.
And if it is murder, and if Zimmerman’s report of what happened is a big lie. . …and I am not saying that it is; I am saying if it is. … but if it is, then when the government finally figures out what really happened, then they are not going to be happy about it. And at that point, George Zimmerman is likely to be charged with everything the government can find to charge him with.