Drowning in Death: In Florida, There’s No Duty to Save a Life in Peril, But We Make Killing Easy

It would have been distressing enough that five teenagers would record the death of a drowning man while doing nothing to save him; it’s downright shocking that they would laugh at and taunt him while he screamed for help. Maybe it shouldn’t be. For years, politicians and mega-church types have been bloviating about “the sanctity of life” while cultivating a culture of death.  Let’s take a look at the state of the law in Florida and ask what kind of values it reflects.

Isn’t it a crime to stand by and watch a person die without trying to help?

No. As I’ve written elsewhere, crimes have elements that fall into two categories: actus reus (the acts required for the commission of the crime) and mens rea (the mental state required, like intent, recklessness, or negligence). As to the actus reus elements (the acts), the general rule throughout the United States is that an omission — or failure to act — cannot constitute the actus reus of a crime.

There is one exception to that rule: failure to act may constitute the actus reus of a crime if there is a duty to act. But the law never presumes such a duty: a duty only arises if a) there is some special relationship — like parent-child or doctor-patient — involved, or b) a statute (typically a state law) creates a duty.

In the case of the five Florida teenagers, those teenagers did not have any special relationship with the drowning victim, and as prosecutors have explained, there is no statutory duty in Florida to come to the aid of a soul in peril.

Would a state be allowed to create a duty to help?

Yes. Legally speaking, the only thing that can stop a state from acting is a constitution — either its own state constitution or the US Constitution. As to the US Constitution, the Tenth Amendment is understood to be a grant to states of what lawyers call the police power, which is defined as the authority to regulate for the health, safety, morals, and general welfare of society. (The US Supreme Court has called into question that morals part, but certainly a state may act to promote the health, safety, and general welfare of its people.)

And certainly there is no constitutional bar against a state creating a statutory duty to help a fellow citizen (or at least call for help). There is no constitutional right to live in isolation from one’s community, to behave in whatever way one pleases, or, to put it bluntly, to be a jackass.

So our legal isolation one from the other is not a matter of some constitutional restraint, but rather a matter of policy and choice.

What has Florida’s Legislature been doing?

Florida legislators are not the sort to concern themselves with fostering the gentle nature that might cause citizens to develop some sense of grace. When the right-wing pols who run Florida are not preoccupied with the most pressing issue facing American society — the plague of our transgendered neighbors using publicly available lavatory facilities — they’re busy enacting the NRA agenda to make it as easy as possible for us to kill one another.

Florida has been at the vanguard in our national project to turn what was once known as “self defense” into something more like to an invitation to fire at will. Once upon a time, Americans had something called a “duty to retreat” — the rule was that, if you were going to use deadly force against another human being (even if that human being happened to be the aggressor), you first had to exhaust reasonable alternatives to doing so. The idea was to encourage deescalation; to require that people behave in ways that were reasonable and rational rather than hot-headed and hysterical; and, oh, to preserve human life.

This approach, however, was not agreeable to a population increasingly consumed by mindless machismo and a fetishistic obsession with cold hard steel. So the duty to retreat has been largely wiped out by a national wave of state statutes called “stand-your-ground” laws. And we have moved from a reasonable-person standard to a more subjective standard, meaning that one needn’t concern oneself with how a normal and civilized human being might behave under the circumstances.

But even that wasn’t enough for the NRA, so Florida recently changed its stand-your-ground law yet again; it used to be that a defendant who raised the stand-your-ground defense had to show by a preponderance of the evidence that he feared death or great bodily harm and was therefore entitled to use deadly force against an aggressor. Under Florida’s new law, a prosecutor now has the burden to show by clear and convincing evidence that the defendant was not entitled to use deadly force.

Is it any wonder, in this culture of death, that Florida’s teenagers think that a drowning man in desperate need of the compassion and decency of his fellow man is a spectacle to be enjoyed rather than a horror requiring urgent action?

Is there any legal recourse in this case?

Maybe. Criminally, prosecutors are talking about charging the teens under a law that requires a person to report a known death. That’s a minor charge with limp penalties.

There is a possible civil (non-criminal) remedy. The question here would be whether anyone exists who might have standing to sue on behalf of the drowning victim. If there is such a person, there would be a potential cause of action for intentional infliction of emotional distress. (Of course, there’s also the question whether they — the teens — are “collectable,” but it could be worth suing regardless.) The elements of this rarely used cause of action are as follows:

(1) the wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous and is to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe.

If ever those elements were met, they were met in this case.

Conclusion

It’s hard to imagine the terror that would accompany drowning to a symphony of laughter and jeers — to know that the last face you will see in this realm is the face of evil.

But as we value more and more the impulse to violence that diminishes sensitivity and empathy for others, we might expect that wanton disregard for human life will be the result.

-bb