All Rise

Office Hours: Joshua Dressler explains the long-lasting effects of some of the summer 2013 court rulings

By Monica DemeglioThe Ohio State University Law School Magazine | Winter 2014


The summer of 2013 was full of blockbuster cases for those who follow criminal law. Joshua Dressler, the Frank R. Strong Chair in Law at The Ohio State University Moritz College of Law, explains the long-lasting effects of some of those rulings.


QThe George Zimmerman verdict was bound to be controversial with strong opinions on both sides, but what does it mean for the so-called “Stand Your Ground” laws nationwide?

AI am very sorry to see the “Stand Your Ground” laws become so popular. Perhaps the Zimmerman/Trayvon Martin case will result in some reflection, and reconsideration of these laws.

Self-defense law historically – in England and early on in our country – was based on the principle that even “bad guys” (including aggressors) shouldn’t be killed if there was some way for the innocent person to avoid harm to himself without killing the aggressor. Indeed, the traditional rule was that, except in the sanctuary of our home, it was better that a person retreat than that he kill an aggressor, if he could do so in complete safety. I admire this old common law value.

As one scholar long ago put it, albeit in male-terms: “A really honorable man, a man of truly refined and elevated feeling, would perhaps regret the apparent cowardice of retreat, but he would regret 10 times more, after the excitement of a contest was past, the thought that he had the blood of a fellow-being on his hands. It is undoubtedly distasteful to retreat; but it is 10 times more disgraceful to kill.”

Florida’s “Stand My Ground” law (which some of its backers also unofficially called the “Make My Day” law) has resulted in a significant expansion in the scope of self-defense rules in a number of states. It provides a person with the right to use deadly force outside the home — to meet force with force — in any public place where the person has a right to be (as well as in one’s automobile), as long as the individual reasonably believes (even incorrectly) that deadly force is necessary to prevent death or great bodily harm or prevent the commission of a forcible felony on himself or another.

More strikingly, it provides the defender legal immunity from criminal prosecution and civil suit if he can satisfy the “reasonable belief” test, prior to trial, to a judge, by preponderance of the evidence. Thus, the home-as-my-castle doctrine has come to the public streets, bars, Starbucks, and every other public area.

Shoot now, ask questions later. It is a message that I think we ought not be sending.

The message ought to be: Taking a human life is a big deal, and should not be done lightly, and if you kill another person you ought to expect that you will be obligated, in a criminal trial, to prove that you reasonably believed you could not have protected yourself short of


QDo you feel the Zimmerman team met that threshold?

AIt is noteworthy that the trial court did send the case to trial. Zimmerman did not get the immunity that the “Stand Your Ground” law had in mind. To me, that is a good sign.

Once it went to trial, however, I think the Zimmerman team met its burden. I think that a reasonable juror could conclude that Zimmerman reasonably believed, even if incorrectly, that he needed to use deadly force to avoid death.

Put differently, the prosecutor did not prove beyond a reasonable doubt that Zimmerman was not acting within his rights under Florida law. This doesn’t preclude a civil action by the Martin family, but the burden of proof to convict is much more demanding in a criminal case, as it should be.


QWhat’s your take on New York’s stop-and-frisk approach to fighting crime? Did the U.S. District Court ruling – that their practice was unconstitutional and that the police force needed to adopt a written policy outlining when such stops are authorized – go far enough?

AThe stop-and-frisk debate raises many conflicting and troubling issues inherent in police practices. We all want to reduce crime and want to give police the tools needed to do so, but we also want to be comfortable that the methods the government uses to combat crime are reasonable, and that their methods of crime control are not disproportionately and improperly borne by a small segment of our society.

The Supreme Court long ago held that the police may, consistent with the Constitution, forcibly detain a person briefly and frisk the outside of that person’s clothing for weapons if – but only if – the officer can point to specific, articulable (and articulated!) facts, and not just a hunch, supporting the officer’s belief that crime is afoot and that the person detained is armed and presently dangerous.

This so-called “reasonable suspicion” standard is a low standard, well below “probable cause,” and astronomically below “proof beyond a reasonable doubt.” Thus, as the Supreme Court has said, the stop-and-frisk doctrine necessarily means that many innocent people will be forcibly detained and their bodies touched bypolice officers feeling for weapons, and that this unfortunate fact does not render stop-and-frisk unconstitutional.

The issues in New York are three-fold: Is stop-and-frisk actually helping to reduce crime? Are there less intrusive ways the police could combat crime? And, whatever the answers to those questions, are the police singling out racial minorities for detention and frisking?

Are they assuming that, for example, young black males are dangerous simply because they are young black males? The court that ruled the stop-and-frisk policy unconstitutional answered the third question, at least, against the police.

What remains — a very difficult question — is the remedy. It is one thing to have a written policy dealing with it, it is another to enforce it in a practical real-world way.

Countless stops-and-frisks occur every day in New York, Columbus, and every major city, in an almost invisible manner. To ask the police, for example, to keep records of each and every stop, and provide a written justification for each stop-and-frisk, seems hopelessly impractical. Alternatively, there has been a suggestion that the police be required to videotape every stop-and-frisk so there is a record of it for future litigation. Even if this is technologically feasible, will it do the job? Or, will it cause police officers to over-compensate and not conduct legitimate stops out of fear that they will be accused of racial profiling?

As always, it is easier to spot the problem than it is to develop a cure.