The Marissa Alexander Case is Much More Than a Stand Your Ground Case Joseph R.

Gosz I've had interest in this case from before the hearing on Alexander's motion to dismiss. My good friend from law school, Kevin Cobbin, was her trial attorney, and I discussed the case with him a few times. Without getting into anything I discussed with him, I have some thoughts on the case and on the news coverage of the case. Every bit of news I've read about the Marissa Alexander case has essentially beaten the reader over the head with talk of the case as a "stand your ground" case. While it's true that the case involved the "stand your ground" law, it involved the law in a VERY limited manner (which I will explain below). My point in mentioning this is that the repeated trumpeting of stand your ground in the coverage of this case is misleading and has probably caused negative perceptions of her defense. Many people seem to have a huge problem with Floridas stand your ground law on a moral/philosophical level. There appear to be numerous opponents of the law. Theres nothing wrong with that. However, the repeated mentioning of the law in reference to Alexanders defense weakens her defense because it makes it that much easier for those who are against the law to dismiss her claim of self defense. The ONLY manner in which the stand your ground law applied to Alexanders case (and made it different from any identical case that arose before the stand your ground law was enacted) was that it gave her the ability to file a motion to dismiss on the basis of immunity from prosecution. That right was created in 776.032, Florida Statutes (2005). The motion was based on her claim of self-defense, which she also used at trial after her motion to dismiss was denied. Had the stand your ground law never come into existence, she would have been able

to use the same claim of self-defense that she did in fact use in her trial she merely would have been unable to file the motion to dismiss that she filed. Before Section 776.013, Florida Statutes (2005) became effective on October 1, 2005, people in Florida had a common law duty (the duty was not statutory) to attempt to retreat prior to using deadly force. The state of the law at that time can be seen in reading a prior version of the relevant jury instruction: The fact that the defendant was wrongfully attacked cannot justify her use of force likely to cause death or great bodily harm if by retreating she could have avoided the need to use that force. Fla. Std. Jury Instr. (Crim.), "Justifiable Use of Deadly Force," 3.04(d), at 48, as stated in Weiand v. State , 732 So.2d 1044, 1048 (Fla., 1999). The stand your ground law eliminated that duty. See 776.012, Florida Statutes (2005) (a person is justified in the use of deadly force and does not have a duty to retreat if). Even though the law at that time required retreat if retreat was feasible, there was an exception for any defendant who was in his or her own home at the time of the alleged act of self-defense. This exception has been known as the castle doctrine for many years. The castle doctrine jury instruction from the same time period as the instruction above was as follows: If the defendant was attacked in [his][her] own home or on [his][her] own premises, [he][she] had no duty to retreat and had the lawful right to stand [his][her] ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent either death or great bodily harm. Fla. Std. Jury Instr. (Crim.), "Justifiable Use of Deadly Force," 3.04(d), at 49, as stated in Weiand v. State , 732 So.2d 1044, 1048 (Fla., 1999).

The case from which I pulled the old jury instructions gives an explanation of the castle doctrine exception to the law requiring retreat: Under Florida statutory and common law, a person may use deadly force in self-defense if he or she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm. See 776.012, Fla. Stat. (1995); Wilson v. State , 30 Fla. 234, 255, 11 So. 556, 561 (1892); DeLuge v. State , 710 So.2d 83, 84 (Fla. 5th DCA 1998); Fla. Std. Jury Instr. (Crim.) 3.04(d), at 46. Even under those circumstances, however, a person may not resort to deadly force without first using every reasonable means within his or her power to avoid the danger, including retreat. See Bobbitt , 415 So.2d at 725; Hedges v. State , 172 So.2d 824, 827 (Fla.1965). The duty to retreat emanates from common law, rather than from our statutes.See Hedges , 172 So.2d at 827.4 There is an exception to this common law duty to retreat "to the wall," which applies when an individual claims selfdefense in his or her own residence. See id . at 827; Pell v. State , 97 Fla. 650, 665, 122 So. 110, 116 (1929); Danford v. State , 53 Fla. 4, 13, 43 So. 593, 597 (1907). An individual is not required to retreat from the residence before resorting to deadly force in selfdefense, so long as the deadly force is necessary to prevent death or great bodily harm. See Hedges , 172 So.2d at 827; Pell , 97 Fla. at 665, 122 So. at 116; Danford , 53 Fla. at 13, 43 So. at 597. Weiand v. State , 732 So.2d 1044, 1049 (Fla., 1999): One of the things that bothered me about this case was the judges remarks in denying Alexanders motion to dismiss. The Judge denied it in part because she believed Alexander could have easily escaped out one of 2 doors, or through the garage (even though there was testimony that the garage door was not working at the time and no evidence to contradict that testimony). That reasoning is completely contrary to established law. There were other rulings by the trial court that I believe were erroneous as well - perhaps Ill address others in a future post. I believe there is a decent chance of a reversal on appeal, and thats something I wouldnt say about many cases. I just wish that people would not be so quick to designate this a stand

your ground case. It is much more than that, and to call it a stand your ground case makes it that much easier for people to dislike the defense and to dislike Marissa Alexander.