Stand Your Ground and the History of Self-Defense

By: Spencer McAvoy

On the night of February 28th in a gated community in Sanford, Florida known as the Retreat , George Zimmerman, a neighborhood watch member, shot and killed the unarmed 17-year-old Trayvon Martin. This incident and the Sanford police department’s subsequent failure to arrest Zimmerman sparked a heated national dialogue regarding racial profiling and Florida’s Stand Your Ground law, a piece of self-defense legislation that may yet allow Zimmerman to avoid jail-time. Criticism of Stand Your Ground and similar pieces of legislation has been fierce in the wake of the shooting of Trayvon Martin, prompting a national debate about the ethics and practicality of such laws.

An article in the New York Times recently referred to Florida’s law as “expansive,” mirroring a widespread sentiment that the protections offered by Stand Your Ground give too much leeway to average people making life or death decisions.[1] However, the extensive legal protection of self-defense has a history that dates back to a series of Supreme Court cases in the late 19th and early 20th centuries, and thirty-two states currently have similar legislation on the books. Florida’s law, which was adopted in 2011, does not represent a departure from previous standards for self-defense. In fact, the phrase “stand your ground,” is a direct reference to both Beard v. United States (1895) and Brown v. United States (1921), two cases in which the Court rejected the notion of a “duty to retreat.”[2] Throughout the 1890’s, the Court aggressively defended the right of an individual to protect himself in the face of an attack, even when the endemic racism of both the Court and the nation might have induced them to do otherwise. In the majority of the important self-defense cases of the 1890’s, the Court reversed the conviction of a young, male minority. It is possible that the Sanford police department’s failure to arrest Zimmerman after he killed Trayvon Martin reflects persistent, endemic racism in America’s legal system. The precedent for the Stand Your Ground legislation, however, was set in a series of cases in which the same justices who ruled on the Insular Cases and in Plessy v. Ferguson transcended their obvious racial prejudice to uphold the right to self-defense.

The interpretation of self-defense represented in Florida’s Stand Your Ground law did not develop all at once. Throughout the 1890’s, the court gradually built and upheld extensive protections for individuals who killed in the course of protecting themselves. In Gourko v. U.S. (1894), the Court reversed the conviction of a nineteen-year-old Polish immigrant, John Gourko. Peter Carbo, who was described as a two-hundred pound, physically strong, and aggressive man in his forties, repeatedly verbally abused and threatened Gourko in a dispute involving six missing cars of coal. Carbo accused Gourko and his brother of stealing the coal, and according to witnesses, attempted to initiate physical confrontation. “You want to fight this morning. Come on here,” he said, to which Gourko replied “I don’t want to fight. I am a sick man. I am going to arrest you. I don’t feel well.” During this conversation, which occurred about half an hour before Gourko killed Carbo, the latter repeatedly insulted the young man, “applying to him epithets of the most degrading kind.” Shortly afterwards, the two engaged in another confrontation in a billiards hall, and, after a brief exchange, went outside to talk. While outside, Gourko felt threatened by Carbo’s demeanor, and drawing a small pistol, shot and killed him. The Court was not called upon to determine whether or not Gourko truly acted in self-defense. Instead, the Court voted to reverse Gourko’s conviction of murder on the grounds that the jury had been given improper instructions. The presiding Judge Parker had instructed the jury that Gourko’s decision to arm himself constituted premeditation, since he was aware of a possible confrontation with Carbo. Writing for a unanimous Court, Justice Harlan stated that “the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided that he rightfully so armed himself for purposes of self-defense.” Gourko was granted a new trial, pled guilty to manslaughter, and served four years in prison. While there may be evidence in Zimmerman’s case that indicates that his actions were premeditated, or that he initiated the confrontation, his possession of a firearm cannot be used as grounds for a murder conviction.[3]

Similarly, in Starr v. United States (1894) Henry Starr, a Cherokee with an outstanding warrant for forfeiting a bond, found himself pursued by two men, Deputy U.S. Marshall Henry E. Dickey and Floyd Wilson, a civilian who was called on by Dickey to join his posse. In the course of their attempt to arrest Starr, Dickey and Wilson both fired upon him. He fought back, killing Wilson and then escaping on his horse. The Court left the question of whether the officers had properly identified themselves to the jury, but granted Starr a new trial once again as a result of erroneous instructions from Judge Parker. Parker instructed the jury that as a bond-jumper, Starr had no right to claim self-defense. The Court disagreed strongly with Chief Justice Melville Fuller writing for a unanimous Court “the possession of a conscience void of offense towards God and man is not an indispensable prerequisite to justification of action in the face of imminent and deadly peril…” Although the rejection of a preexisting criminal condition as counteracting one’s right to self-defense does not directly concern the Trayvon Martin case, the Court’s decision clearly represents a firm commitment to the right to protect oneself. Although Henry Starr was a Cherokee and a criminal who killed a white representative of the law, the Court granted him another trial and upheld his right to self-defense in the face of potentially racially motivated instructions clearly meant to procure his conviction.[4]

The phrase from which the name for Florida’s law is derived first appeared in case-law in Beard v. United States (1895). Beard was a poor white farmer from the Cherokee Territory whose three nephews came to his farm with the intention of retrieving a cow that they claimed belonged to them. The young men had previously made threats, of which Beard was aware, to the effect that they would either get the cow or kill Beard in the attempt. Judge Parker essentially instructed the jury that Beard forfeited his right to self-defense by arming himself and going out to confront his nephews, and that, furthermore, he had an obligation to retreat if he could do so safely. Beard, as Justice Harlan wrote for a unanimous Court, “was entitled to stand his ground and meet any attack made upon him with a deadly weapon in such way and with such force as, under all the circumstances, he at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life or protect himself from great bodily injury.” Beard, therefore, was within his rights not only to go out, while armed, and challenge the trespassers, but also to retaliate with deadly force when attacked without considering the possibility of retreat. Note the specific use of the phrase “stand his ground,” which appeared with small variations several times in Harlan’s opinion. This case, however, took place on private property, and it wasn’t until Brown v. U.S. that the court addressed the question of whether there is a duty to retreat in public space. It is unclear if Zimmerman had the right to challenge Martin based on his suspicion that he was trespassing because although the gated community was private property the road did not belong to Zimmerman. Nevertheless, the ruling in Beard was crucial to the Brown decision, which in turn set the precedent for Stand Your Ground as we know it.[5]

Rowe v. U.S. (1896) is perhaps the best example of the Court siding with a minority in a racially fueled conflict, and also has implications for the specifics of Trayvon and Zimmerman’s confrontation. David Rowe, another Cherokee, interacted with a white man, Frank Bozeman at a dinner table in a hotel. Bozeman refused to speak to Rowe, to the latter’s vexation. After dinner Bozeman continued to ignore Rowe, at one point commenting within Rowe’s earshot that Rowe had “got too damn much nigger blood in him to talk anything with any sense.” Rowe then kicked Bozeman in the leg, before moving quickly away to lean against a nearby counter. Bozeman attacked Rowe, cutting him twice in the face, at which point Rowe drew a pistol and killed him. Judge Parker instructed the jury that Rowe had started the fight by striking Bozeman on the leg, and thus had forfeited his right to self-defense. He also stated that Rowe had a duty to attempt to avert conflict by moving out of the way, or to try to disable Bozeman before using deadly force.

Writing for the majority, Justice Harlan rejected both of these instructions, quoting the Supreme Court of Iowa in State v. Dillon, “if one ’actually and in good faith withdraws from the combat, he ceases to be a wrongdoer, and, if his adversary have reasonable ground for holding that he has so withdrawn, it is sufficient, even though the fact is not clearly evinced.”[6] As for the second set of instructions, the Court reaffirmed its verdict from Beard v. U.S., writing that “the accused was where he had the right to be, and the law did not require him to step aside when his assailant was rapidly advancing upon him with a deadly weapon.”[7] Once again, Judge Parker’s lengthy instructions were clearly designed to procure a conviction, possibly because the defendant was Cherokee and the deceased a white male. Furthermore, the conflict itself began as a result of racism on the part of Bozeman. In the case of Trayvon Martin, many have cited the fact that Zimmerman followed him, and appears to have initiated the confrontation, at least verbally. This case-law suggests, however, that even if Zimmerman initiated conflict with Martin, his right to self-defense could have been restored by a retreat, or an attempt to retreat in good faith.[8]

As mentioned previously, in Brown Justice Holmes built upon the precedent set in Beard and Rowe, stating that there was no duty to retreat, even on public property. It was in this opinion for the seven justice majority that Holmes coined the phrase, famous in self-defense law: “Detached reflection cannot be demanded in the presence of an uplifted knife.”[9] And, despite the fact that Martin was unarmed, the description of events provided by Zimmerman, if true, suggest that he was being assaulted in a manner with potential for great bodily harm.[10]

Although none of these cases alone provide protections for self-defense equivalent in extent to those granted in Florida’s Stand Your Ground law, together they provide a strong legal precedent for the law’s provisions. The use of an expansive definition of self-defense to protect individuals, often minorities, from being punished for responding to intimidation and violence by the Supreme Court in the 1890’s, an era notable for its prevalent white-supremacy, also indicates that the concept of Stand Your Ground can be applied in a beneficial manner. Study of these cases also exposes the fallacious nature of the claim made in the New York Times that Stand Your Ground is “the broadest protection of self-defense in the country.”[11] The same article also cited claims made by the Sanford police that Florida’s law “barred [them] from arresting him [Zimmerman].”[12] The lack of complete witness reports, as well as the conflicts and discrepancies between the available testimonies and Zimmerman’s account of his injuries and the Sanford police’s video footage clearly cast enough doubt to warrant an arrest and an investigation. Furthermore, within Florida’s law there is no provision that prohibits the arrest of individuals wherever the possibility of self-defense exists.[13]

The death of Trayvon Martin was a tragedy and it is entirely appropriate that it has been treated as such. Nevertheless, the Self-Defense Cases of the 1890’s reveal a long historical precedent for an expansive right to self-defense while simultaneously demonstrating the possibility of the just application of this right. Neither Florida’s Stand Your Ground law nor the cases discussed here indicate that thorough investigation is unnecessary wherever self-defense is claimed. But neither does one example of misapplication of self-defense legislation necessitate the weakening of an important right that can be exercised just as readily in the resistance of oppression. Self-defense is a right, and we must weigh both sides carefully before discarding it. We can and should take measures to improve the application of legislation such as Stand Your Ground. Perhaps in the future the law will be implemented to protect victims such as Martin and not their attackers.

Spencer McAvoy is a second-year in the College.


  1. Freeman, Joseph, Beth Raymer, Sabrina Tavernise, Timothy Williams, and Jennifer Preston. “Race, Tragedy and Outrage Collide After a Shot in Florida.” New York Times, , sec. U.S., 4 1, 2012. http://www.nytimes.com/2012/04/02/us/trayvon-martin-shooting-prompts-a-review-of-ideals.html?pagewanted=7&_r=2 (accessed April 22, 2012).  ↩

  2. Brown v. United States, 256 U.S. 335 (1921).  ↩

  3. Gourko v. United States, 153 U.S. 183 (1894).  ↩

  4. Starr v. United States, 153 U.S. 614 (1894).  ↩

  5. Beard v. United States, 158 U.S. 550 (1895).  ↩

  6. Rowe v. United States, 164 U.S. 556 (1896).  ↩

  7. Id., at 558.  ↩

  8. *Id., at 546.  ↩

  9. Brown, 256 U.S. at 343.  ↩

  10. Id., at 335.  ↩

  11. Freeman, Joseph, Beth Raymer, Sabrina Tavernise, Timothy Williams, and Jennifer Preston. “Race, Tragedy and Outrage Collide After a Shot in Florida.” New York Times, April 1, 2012, sec. U.S.. http://www.nytimes.com/2012/04/02/us/trayvon-martin-shooting-prompts-a-review-of-ideals.html?pagewanted=7&_r=2 (accessed April 1, 2012).  ↩

  12. Id.  ↩

  13. The Florida Legislature. “Statutes & Constitution: View Statutes: Online Sunshine.” http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.013.html (accessed April 14, 2012).  ↩