It now appears a Grand Jury will convene April 10 to consider murder charges against a Florida man who shot and killed Trayvon Martin three weeks ago.
Police say George Zimmerman, who is Hispanic, while acting as a neighborhood “watch captain,” had a 9 mm handgun and followed Martin, a black teenager, past several houses in the neighborhood; Martin was holding a plastic bag and told his girlfriend on his cell phone “some guy’s after me.” Zimmerman shot Martin once in the chest as they reportedly fought on the ground.
Zimmerman claimed the homicide was justified under Florida’s so-called “Stand Your Ground” law. Florida’s law, like Michigan, takes the issue of “self-defense” several steps further than many states, by allowing deadly force “anywhere (you) have a lawful right be,” not just in homes or vehicles.
Could this happen in Michigan? What’s the current state of the law here regarding self-defense, and when can you use deadly force in defending yourself, your home, and others?
Castle doctrine: Generally, in Michigan, the “castle doctrine” (derived from the phrase “Your home is your castle”) provides that someone attacked in his home can use reasonable force, which can include deadly force, to protect his or another's life without any duty to retreat from the attacker.
However in recent years about 15 states, including Michigan, have adopted laws expanding and enlarging the circumstances where a person can use self-defense without retreating and containing provisions such as civil immunity.
In 2006, Michigan enacted the Self Defense Act, which allows an individual to use deadly force anywhere she has a legal right to be, with no duty to retreat. The new law changed the old “duty to retreat before using deadly force” rule, unless a person is inside his home.
The ability to defend oneself against physical attack is a fundamental right recognized by Article 1, Section 6 of the Michigan Constitution. This right is not absolute, however; the key test for determining when the use of deadly force is justified is whether a person "honestly and reasonably" believed he was in danger of imminent death or serious bodily harm. Nevertheless, deadly force is not permissible without a showing that the defendant had done "all which is reasonably in his power to avoid the necessity of extreme resistance."
There are three major exceptions to this rule:
- when one is suddenly, fiercely, and violently attacked;
- when one believes the attacker is about to use a deadly weapon; and
- when a person is assaulted in her own dwelling.
The Self Defense Act: The 2006 Self-Defense Act (MCL 780.971) is similar to Florida’s laws; a person is allowed to use deadly force, without the duty to retreat from any place she has the legal right to be if she honestly and reasonably believes that death, great bodily harm or sexual assault to herself or others may be imminent. In addition, MCL 768.21c was enacted to expand the castle doctrine to include not only a porch or garage, but fenced-in grounds and buildings immediately surrounding a house or dwelling.
Thus, Michigan citizens acting in self-defense now have substantial immunity from both criminal and civil liability under the new laws. When using defensive force against someone, a person is now automatically presumed to have held a reasonable fear of imminent peril of death, great bodily harm or sexual assault, as long as both the following apply:
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will; and
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described above.
This legal presumption must be overcome by the prosecutor, who is required to present evidence at each stage of the criminal proceedings, to rebut the presumption that the individual did not act within the constraints of the Self-Defense Act.
There are, however, exceptions to the presumption cited above. These include the following:
- The person against whom force is used has a legal right to be present in the dwelling or vehicle (such as an owner, lessee or titleholder);
- the person being removed is a child or grandchild or in lawful custody of the person against whom the defensive force was used;
- the person against whom defensive force is used is a police officer engaged in performing official duties; or
- the person using defensive force was engaged in an unlawful activity or using the dwelling or vehicle to further an unlawful activity.
If none of these exceptions apply, then the person is essentially immune from criminal prosecution.
Conclusion: Michigan’s laws of “Self-Defense” are somewhat similar to Florida’s “Stand Your Ground” laws that are the subject of the recent Trayvon Martin shooting. Each case must be individually analyzed for justifying a homicide, however; even though Michigan has done away with the “duty to retreat” rule, a shooter who “followed, chased or went after” – as some reports suggest Zimmerman did in Florida – will be regarded as highly suspicious, and not likely a valid case of self-defense.
(Richard G. Marcil www.MarcilAttorney.com 586-412-0444 is an attorney in Clinton Township practicing in criminal defense, divorce and family law, civil rights, and personal injury cases, as well as juvenile, probate, real estate and business litigation.)