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What Was Common Law Self-Defense?

Lots of people are bandying “common law” around in regards to self-defense, especially suggesting that Florida’s laws are a departure from common law. Anyone who is suggesting this is ignorant of what the common law on self-defense really was. First, a brief history of what common law is. Common law is essentially judge made law, or customary law, that is built up by precedent over time. For many years, much of the laws of England were done this way. The Romans brought us the idea of civil law, where everything is written down by statute. Self-defense traditionally was a common law justification for certain crimes such as murder, manslaughter, and assault. These justifications were, for a long time, not codified in most states. Codification didn’t generally begin until fairly recently, and some states, such as Virginia, still use common law self-defense. So what was common law self-defense? To understand that, we go back to the authority on the common law, which is William Blackstone, who wrote Commentaries on the Laws of England. But to summarize:

  • Under common law, it was legal to use deadly force against a person who was committing a felony. Not only was it legal, it was considered a civic duty to do so.
  • It was legal to use deadly force against anyone breaking into a house at night. It was not considered acceptable to do this during the day, unless robbery was a motive.
  • Duty to retreat only applied, under common law, to someone who was defending himself against an assault in an “affray” or “brawl,” and with the exception that there was no duty to retreat “in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law.”

As the common law evolved in the United States, Americans never had a particularly liking for the duty to retreat, and it worked its way out of the common law in many states, including New York, who included no such requirement from common law when they codified their self-defense statutes. Many states, when they codified their self-defense statutes, ignored common law and essentially created this duty even when presented with someone committing a felony. Pennsylvania, for instance, does not allow for deadly force to prevent commission of a felony. That was dropped during codification. But the idea that the common law created a duty to retreat in all circumstances is just plain false. Many of the “stand your ground” or “castle doctrine” laws more closely match common law practices than do statutes of states that require retreat even when faced with a felonious attack.

One can see that even with the recent Zimmerman case, that whether a duty to retreat would apply under common law would hinge on whether “certain and immediate suffering would be the consequence of waiting for the assistance of the law,” rather than some absolute duty, as some have made it out to be. Also worth noting that in Blackstone’s time, law enforcement was considered a duty of every citizen, and people were more civically minded back then. With the advent of professional policing in the 19th century, individual citizens have become more removed from looking out for the safety and well-being of their own communities.

George Zimmerman, a lone, self-appointed neighborhood watch captain, would not have been in the tradition of Blackstone’s time. But neither would a neighborhood full of people who hear someone screaming for help, and don’t bother to act until a shot is fired.

19 Responses to “What Was Common Law Self-Defense?”

  1. A minor addition. Excusable homicide (self-defense or accidental, non-negligent killing) remains unlawful until 1532. While it was common for the king to pardon those convicted, it was usually at the cost of confiscation of all your property. See here

  2. “George Zimmerman, a lone, self-appointed neighborhood watch captain, would not have been in the tradition of Blackstone’s time.

    I actually doubt that. The tradition of Blackstone’s time was a citizen watch and thieftakers. Robert Peel wasn’t even born until 8 years after Blackstone’s death, let alone organize the first modern police force.

    • SPQR says:

      Yeah, that was where Sebastien got off track.

      • Sebastian says:

        But such a watch had the authorization and support of the community as a whole. The key think that takes Zimmerman out of the tradition of the time was his self-appointed nature, and the fact that he acted without endorsement or support of the community. I think that’s an important distinction.

        • Sage Thrasher says:

          It’s more than that. Zimmerman appears to have directly ignored a police order to stay in his car and not to follow. I think that’s where his self-defense claims get thin, unless there’s something not being reported. If Zimmerman goes before a jury, that’s the thing he’ll have the toughest time justifying: why he got out of his car in the first place. Combined with his comments on the 911 calls, it suggests he should enjoy his remaining days of freedom while he can.

  3. Sebastian,

    While I support Florida’s self-defense laws, such as the Castle Doctrine and the Stand Your Ground Law, I am finding it hard to apply it to Mr. Zimmerman. While there is no duty to retreat in Florida and force may be met with force, I do not see where Martin used forced against Zimmerman. Against the advise of police, Zimmerman pursued Martin and shot him. While none of us were there and we did not experience the event, Martin was unarmed, wearing headphones, and there was no evidence that he was committing a forcible felony. You cannot act in self-defense if you are not be threatened.

    As a criminal lawyer in Jacksonville, Florida, I feel like Zimmerman’s actions have caused Florida’s self-defense law to be placed under investigation, instead of the man that deserves to be investigated. He is hiding behind a perfectly good law and causing the national media to discredit Florida’s Stand Your Ground Law.

    I have recently wrote two articles about it:

    Florida Self Defense

    Florida Stand Your Ground

    Cynthia Veintemillas
    Attorney at Law
    20 Miles Law, PLLC

    4540 Southside Blvd., Suite 401
    Jacksonville, Florida 32216
    cynthia@20mileslaw.com
    (904) 564-2525 (telephone)
    http://www.20mileslaw.com

    • SPQR says:

      ” … I do not see where Martin used forced against Zimmerman.”

      Then how was Zimmerman injured?

      • Bob says:

        Zimmerman was the aggressor and he pursued the teen. Self defense doesn’t apply.

        • Sage Thrasher says:

          From what has been reported so far, I think you’re correct, Bob. When I got my first CHL years ago, the class I had to take presented scenarios very similar to the one Zimmerman instigated and the take home message was “don’t do this, you’ll go to jail.”

        • SPQR says:

          Not responsive.

        • SPQR says:

          Pursuit of Martin is not legally “aggressor”. It makes Zimmerman an idiot and responsible for the confrontation itself, but that does not make him an “aggressor”. We seem to lack witnesses to what began the violent part of the interaction.

          • So if I pursued you. How is that not aggressive?

            Now if I follow you and say “Hey sir, you dropped your wallet.” That’s one thing. But if I’m making racial slurs on the phone with cops. That’s is merely confirmation that I was pursuing aggressively.

            Hmm, does that constitute stalking? stalking with a gun?

            Oh, and at the very least it comes across to me as harassment. And I don’t think anyone would agree that I have the right to harass someone, and then shoot them if they respond.

    • Jake says:

      I do not see where Martin used forced against Zimmerman.

      One eyewitness stated he saw Zimmerman on the ground yelling for help with Martin on top beating him. The witness turned away to call 911 and heard (but did not see) the shot. This is, as far as I am aware, the only eyewitness report of the event. All other “witness” reports that I have seen only heard the incident – they did not see it – and their claims that it was Martin calling for help are therefore nothing more than speculation.

      As for who initiated the physical altercation and why, or whether Martin would have been justified in doing so, we’ll probably never know, since there are no known witnesses who saw how it actually started.

      I think Zimmerman is at fault, and Martin’s death is a direct result of his actions, but I think he will get away with it because there does not appear to be enough evidence to disprove self-defense. Stand-your-ground would not seem to apply based on the eyewitness account, because based on his account at that point Zimmerman would not have been reasonably able to retreat anyway.

      I’ve said it before, and I’ll say it again: The whole situation is a mess, and that much, at least, appears to be entirely Zimmerman’s fault.

      • There is one simple piece of evidence that proves Zimmerman’s innocence or not. Where was Martin shot?

        If by Zimmerman’s vehicle as claimed. Than Zimmerman is likely not guilty of murder. But if anywhere else, than we know Zimmerman pursued Martin and that Martin’s use of force was self-defense.

        In which case, Zimmerman is guilty.

    • Agreed…

      There is NO DUTY TO RETREAT, but damn it, there is a DUTY not to chase people who are not involved in any crimes. And that’s where I think Zimmerman stepped out of the protections of castle doctrine.

      When you leave your castle, it’s one thing if you’re chasing a bandit, especially one with your goods or loved ones. It’s another, when you’re chasing an individual who by law has the right to be standing on the ground they’re standing on.

      • SDN says:

        Except, of course, in a gated community, you have to prove you’re not a trespasser. The fence and the gate represent a little concept called a border, which you have to prove you’re entitled to cross. Otherwise you are committing the crime of trespassing.

        Of course, liberals don’t believe in borders either.

  4. I have defended numerous self-defense oriented case, such as aggravated assault with a firearm, battery, and murder. I have seen the state attorney’s office prosecute law abiding citizens that were were obviously defending themselves. In those situations, the “victim” was the original aggressor and there was a legitimate reason to be afraid enough to use a firearm. Still, the police initiate an arrest or get warrant and the person that merely defended himself has to hire a lawyer to fight the charges. This is a shame, and when I see someone like Zimmerman not even being investigated until other organizations get involved, it leaves me with so many unanswered questions.

    I would like to know what kind of investigation was done for Martin/Zimmerman. Did the police take the case to the state attorney seeking a warrant? Did the police decline ever bring it to the state attorney? Did the state attorney decide not to have a warrant issued?

  5. JimB says:

    Martin’s parents are in NY where a rally is bing held demanding “justice”… Zimmerman is being described as a “vigilante” by the local media. Personally, I feel if Zimmerman persued this kid for the the high crime of “being black in his neighborhood” his self-defense claim is going to fall apart. In any case this is not going to just go away.

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  1. What Was The Common Law On Self Defense? | Extrano's Alley, a gun blog - [...] Sebastian at Shall Not Be Questioned has a good discussion of common law self defense. [...]
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