In Which I Do a Hack Job of Research

So my friend Tyler Brown posed a hypothetical earlier today.  As a law student, I'm legally obligated to take all hypothetical questions as seriously as possible.  Here's what he asked:

"If two people in Florida 'Stand Their Ground' against each other, is it a legally sanctioned duel?"

I jokingly said sure, even though in my heart I knew that the answer was certainly no.  There are bound to be old laws on the books that prevent dueling, and even if not a duel would be unjustified homicide.  Right?  

There has been a lot of news about the Florida's "Stand Your Ground" law lately due to the Trayvon Martin shooting.  There are plenty of people addressing that case very heatedly and I have nothing new to add to that conversation so I'm not going to try.  I'm going to talk about how I obsessively researched what should have been a very silly hypothetical question.  

Let's start with history, which I will provide absolutely no citations for because I'm writing a blog post and not an academic paper and you can just trust me that I got it 95% correct.

American self-defense law descends from English common law, which is no great surprise.  It was codified as a means of ensuring the rule of law and to discourage self-help remedies.  Run away if you can and let the authorities handle it.  A self-defense law that was too lenient, it was thought, might lead people to mistake a right to defense for a right to kill.  From that thought came the "retreat to the wall" requirement, which requires someone being threatened to retreat as far as possible from an opponent before using self-defense.  The idea was that your back had to (literally) be against a wall in order to justify killing another for any excusable reason.  That, at least, is how they did it in England.

America had this general idea on the books for a while, but with the expansion out West in the 1800's more and more courts started saying "meh" to the "retreat to the wall" doctrine.  There were a few other concepts swimming around, including one called the "True Man," test for self-defense.  That one sort of sums up everything we conventionally feel about the Old West.  In the 20th century this general trend continued and most states did away with the duty to retreat.  Florida was actually sort of late to the game in that regard, though they were one of the first to codify it in such an uncompromising way.  Here is the relevant text (It's section 776.012 of their code, if you care) :

"...a person is justified in the use of deadly force and does not have a duty to retreat if:
...He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another..."

The major thing the 2005 "Stand Your Ground" amendment did for this section was to insert the phrase "and does not have a duty to retreat."  

But what does this have to do with dueling?  Imagine that you and a friend (well, someone who used to be your friend) want to have a duel.  It's going to be with guns, because you're classy.  You both have permits for the guns.  You stand twenty paces apart and then have a standoff.  One of you- it's hard to tell who because you're both such excellent gunslingers- pulls his or her gun.  From your point of view, the other has pulled his or her gun and imminent death or great bodily harm to you is certain unless you shoot them with your gun first.  You win.  When the police arrive, it will be clear from the physical evidence that they had a gun and that it was likely pointed at you.  You had no duty to retreat.  You have just fought a legal duel and have complete immunity from any criminal or civil charges relating to the homicide. 


One of the representatives who voted against this bill actually brought up the dueling issue.  No really, he stood up and said "[this bill] legalizes dueling."  


But that's silly, certainly.  The hypothetical, the state representative... it's a hyperbolic joke, right?  As I said up top, there must an old statute on books that makes it illegal to duel and would, as such, trump what, admittedly, looks like an excuse to pull an Aaron Burr on someone.  And there was.  From what I can tell, it was repealed in 1974.  I scoured the Florida code in vain for its replacement.  


I found plenty of anti-dueling statutes still on the books in other states.  Montana, New Mexico, Kentucky.  There are even some extra statutes that make it a crime to belittle someone for being a coward in refusing to fight a duel.  Long story short, in most states if you kill someone in a duel you are going to be charged with first degree murder.  But not in Florida.  I searched Westlaw.  I checked Lexis.  I even went to the Florida legislature's website.  No law against dueling.  That, along with the phrasing of the justifiable homicide section, leads me to my answer to Tyler's hypothetical question from earlier today:

Yes Tyler, a strict  and likely unrealistic reading of all the sources at hand implies that it is theoretically not illegal to duel someone in Florida, with the caveat that you should probably kill them so that they can't claim that you were threatening them as well.

Thanks, Tyler.  That was an enormous waste of my day.