You Can Also ‘Stand Your Ground’ in Germany

There's been a lot of banter about 'Stand your Ground' in the German media lately. Many of the legions of lazy German journalists seem to be convinced that it allows Americans to simply begin firing at anybody they consider to be suspicious-looking. In fact it means only that if someone else begins a physical confrontation with you, you are not under an obligation to retreat from it. Instead, you can use force to defend yourself — as long as that force is reasonable in relation to the danger.

Is it different in Germany? Not very, argues GJ commenter Paul:

Germanys self-defense law is very generous to the self-defendant. "Recht muss vor dem Unrecht nicht weichen" is a time tested German legal principle and sounds suspiciously similar to stand your ground. It covers the use of deadly force to prevent the stealing of relatively unvaluable property. Many Germans don't undstand that and are foccussed on snippets from American movies and debates. You are right to point that out.

This piece in Slate makes a similar point:

English common law imposes a duty to retreat whenever it is safe. In continental Europe, the duty applies only when the defender provokes the attack, or when the attacker doesn’t understand the situation. (Europeans must retreat from young children with guns, for example.) Nor is there a general duty to retreat in countries like Japan and Argentina, which derive their criminal-law systems from Europe. Even England, originator of the duty to retreat, repealed the doctrine in 1967 by statute. Defenders of the European system argue that imposing a duty to retreat may prevent the attack on the victim’s life, but it permits an attack on his legal rights—the right to be in a public place, the right to move freely, etc. By passing the “stand your ground” law, Florida brought its laws closer to those of Europe. Otherwise, the U.S. is in the minority in having, within some states, an explicit duty to retreat.

It’s not entirely clear how much this doctrinal division matters in practice, though. There may be a practical duty to retreat under many circumstances in Europe, even if the law doesn’t explicitly say so. That’s because the law also says you can use deadly force only when it’s necessary to avert an attack, and the force must not be grossly disproportional.

To see how the doctrinally distinct English common law and European systems can converge on the same result in practice, consider a classic hypothetical: A disabled man in a wheelchair, carrying only a sword, assails an able-bodied victim, who responds by shooting the attacker to death. Under English common law, the killer could not rely on the self-defense justification, because he used deadly force when retreat was an equally safe option. On a different basis, a court in Germany, Argentina, or Spain would almost certainly convict the killer as well, despite the lack of an explicit duty to retreat. Deadly force was both unnecessary and disproportional. Because any given case is factually distinct, and the laws are subject to human interpretation, it’s impossible to say with certainty when one has a practical duty to retreat in any country.

In practice, the mainstream view of when deadly force should be permissible seems to vary minimally between countries. When a country’s laws produce an outcome that diverges from a standard people are comfortable with, the doctrine ultimately yields to the popular intuition. Here’s an example to illustrate that point. In 1920, a German orchardist was tending to his trees when he happened upon a thief, who immediately fled. To thwart the theft, the orchard owner shot and killed the thief. Arguing that “right need never yield to wrong,” the German court acquitted the shooter. Public questioning of that absolutist doctrine, however, eventually led to the adoption of the proportionality rule.

So, if Zimmerman provoked the attack in the Martin case, he might be under an obligation to retreat. But it's actually not clear who provoked the physical confrontation — Zimmerman claimed that Martin doubled back to confront him and started the physical fight, and there's some evidence that points in that direction.

It's also possible that German law would see the use of a firearm as a disproportionate response to an attack by fists. Commenter Paul believes Zimmerman would have been convicted of manslaughter in Germay for this reason, and the argument is sound. However, it's a bit hard to evaluate, since (1) Germans aren't allowed to carry legal firearms around with them, so the question rarely comes up, and (2) there are quite a number of beating deaths in Germany every year. When someone is actively pummeling you, it's not far-fetched to argue that the next blow could have rendered you unconscious and unable to defend yourself, so you felt a need to stop the beating at all costs, even with the use of a deadly weapon. Much would depend on the individual circumstances of each case — but then again, that's precisely what the jury in the Zimmerman case considered, for 16 hours, before they reached their verdict.

2 thoughts on “You Can Also ‘Stand Your Ground’ in Germany

  1. Hi Andrew,

    Just as an addendum:

    As I understand the specifics of the case, Martin was lying on top of Zimmerman and pummeling him with blows and Zimmerman said he could not physically stop him from attacking him because Martin was stronger? If that is deemed to be the case in Germany his actions (shooting) could very well be seen as not disproportionate because the courts have long determined, that a defender need only use the (mildere Mittel) lesser defense, when it is guaranteed without doubt to end the attack on his rights fully and immidiately. He does not have to resort to defenses that put himself in danger or which are unclear whether they would help. Thats why I am saying you have to look at wether Zimmerman can be proven beyond reasonable doubt to have provoked the attack or what I indeed forgot in my earlier post that perhaps Martin being underage put him under the duty to retreat. What I hear from this case I have strong doubts that a German court would have found Zimmerman to have acted disproportianately in a situation where somebody stronger was lying on him.

    As a last thing a big recommend for you the wonderfull book “Rethinking Criminal Justice” by Columbia Law-Professor George P Fletcher, which helped me immensely understanding American Criminal law from an German perspective. In it he goes through the doctrine of American law constantly comparing to the legal theories of other European and European-influenced systems (including Soviet Union). Although it got to be said that most of the book deals with Germany – USA comparison the other systems are only used when this isn’t fruitfull.

    Particularily in cases like this that deal with General Principles like self-defence (actually necessary defence in the US) it is very insightfull.

    Google-Books has it: the comparative treatise on the duty to retreat and its intelectual founding starts at page 864.


  2. It all depends on how you see provocation, though. After all, Zimmerman was a legal resident of the complex, too, and simply following someone and asking them questions, while probably irritating, is not a crime or a provocation. And as for disproportionate force, here’s a case in which self-defense was allowed when the person being attacked rammed a knife into the attacker’s throat without warning, nearly killing him:


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