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The Construction of Legal Standards


Fortunately, it seems now that there will at a minimum be a serious investigation into the killing of Trayvon Martin. Should Zimmerman not be prosecuted (assuming no additional facts exonerating him emerge), however, I argue that it’s not as simple as saying that the Florida self-defense law did it:

Still, it is important to note that this is not quite a case where a bad statute has compelled a tragically unjust result. To be sure, the Florida self-defense law is terrible. But, nonetheless, the language of the law requires that a perceived threat be “reasonable.” To put it mildly, it is far from self-evident that Zimmerman’s perception of threat of “death or great bodily harm” was reasonable. Given that 1) Martin was armed only with Skittles, 2) Zimmerman outweighed Martin by about 100 pounds, 3) when Zimmerman encountered Martin the former was in an SUV while the latter was on foot, 4) that Martin was not engaged in any criminal activity when Zimmerman stopped to accost him, and 5) the police specifically told Zimmerman not to engage with Martin, it seems clear that Zimmerman’s alleged fear for his life was presumptively unreasonable. Certainly, the police have the discretion to charge him under the language of the statute unless they know something they aren’t revealing. Some, but not all Florida judges have held that the statute grants immunity to killers like Zimmerman.

If Zimmerman gets away with killing Martin, it’s not just the statute that bears responsibility. It’s how Florida’s policemen, prosecutors, judges, and juries have constructed its ambiguous language.

Don’t get me wrong: the law is really terrible, and the bad consequences were entirely predictable. But, still, if George Zimmerman’s actions are construed as “reasonable” that’s a construction of various actors, not a requirement of the law itself.

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  • SEK

    If you listen to the 911 tape, it’s clear that Zimmerman wasn’t fearing for his life. Moreover, the racist bit? I’m sure he was just accurately describing the behavior of some lascivious native wildlife. It’s not his fault they were doing that while he was hunting a black person!

    • DrDick

      As I have said before, these open carry laws in Florida and elsewhere are just hunting licenses for white (or half or near white) folks who want to shoot people of color. That is exactly what they were intended to be (revealed by the ways the debate in favor of them is framed). Judges that let folks like Zimmerman are just following through on legislative intent.

      • I doubt that our legislators in FL were quite this cynical: I think a genuinely-felt 2nd Amendment maximalism is more plausible in this case. The potential for this law to lead to Yet More impunity killings of young black men is one of those “who could possibly have anticipated that” consequences, which would have been laughed out of the house had it been brought up before it was enacted.

  • Craigo

    I think you might be misreading the situation. It seems clear that a scuffle broke out at some point, and that Zimmerman shot Martin.

    The danger here is that a jury could reasonably find that Martin feared for his life during the altercation, regardless of what occurred before it. The 5 points that you listed do not necessarily invalidate Zimmerman’s immunity under any of the statute’s provisions.

    In other words, it essentially rolls back the initial aggressor exception to self-defense – as long as you are legally entitled to be where you are standing, you have no duty to retreat before using deadly force if you reasonably fear deadly force, even if you caused the altercation. In most states, Zimmerman would not have a self-defense claim (or at the very least, there would be a jury instruction regarding initial aggressors).

    • Craigo

      In the 2nd graf, Zimmerman, not Martin.

    • Karate Bearfighter

      The media coverage hasn’t been very clear about this, but Florida does still have an initial aggressor exception on the books:

      776.041  …. The justification described in the preceding sections of this chapter is not available to a person who:
      (2) Initially provokes the use of force against himself or herself, unless:
      (a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
      (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

      In short, Zimmerman still has a duty to retreat if he provoked Martin to use force against him. Instead of rolling back the initial aggressor exception, the 2005 law eliminates the duty to retreat for non-aggressors outside the home. I think the questions here are:

      — what constitutes a “provocation” under FL law?
      — what test does FL use for reasonableness? Must it be an objectively reasonable belief, or the subjectively reasonable belief for someone of Zimmerman’s mindset, characteristics, etc.?

      • Katya

        I wasn’t aware of that provision. Since Zimmerman almost certainly provoked the fight, and since his car was a readily available means of retreat, it would seem that he doesn’t have a self-defense claim. But of course, the police were clearly not interested in poking holes in his claim of self-defense.

        • Holden Pattern

          Yeah, after the killing of a young man, that’s the appalling part of this whole thing — well, this fella here chased that young fella there with car and then shot and killed him, but let’s just chalk it up to suicide-by-self-defense, since dead men tell no tales and boy, howdy I’m not in the mood for all the paperwork today.

    • Jim Lynch

      Pick a fight, shoot. Rinse, repeat…

      • DrDick

        As I said upthread.

  • mpowell

    This is a very good point. The law frequently comes down to issues like whether this: whether the perceived threat is ‘reasonable’. And it just depends on how you want to bend the use of that word.

    I’d say the biggest problem with this law is that if the prosecution can establish beyond reasonable doubt that you initiated an incident and possess a deadly weapon when you do so, it is absolutely essential that the burden shifts to the defense to prove a self-defense case. As I understand it, the burden continues to rest with the prosecution. This is absurd because it means you can start a fight with the attempt to kill a person and as long as there is no good eyewitness testimony to the fact that you were continuously the agressor, you can murder someone with very little chance of a successful prosecution.

    • Scott Lemieux

      Right. The bootstrapping where you can initiate a conflict and still be effectively immunized is the biggest problem with the statute.

    • rea

      There’s a distinction you are missing between a production burden and a persuasion burden. I won’t even try to figure out this loonie Florida rule, but the way it usually works is that the defense has a production burden for self defense, meaning that self defense isn’t an issue in the case unless the defense produces enough evidence to make out a prima facie case of self defense. Once that production burden is met, however, the prosecution bears the persuasion burden of disproving self defense beyond a reasonable doubt.

    • ema

      …as long as there is no good eyewitness testimony to the fact that you were continuously the agressor…

      And even when there is some evidence…:

      Several witnesses said they heard cries that sounded like a boy wailing — howling silenced by the crack of gunfire — and were shocked to hear police later portray the cries as Zimmerman’s….

      The police chief was accused of telling lies big and small in ways that shielded Zimmerman.

  • Craigo

    It’s also worth noting several cases where a jury could have found that the defendant acted unreasonably, but charges were never filed explicitly due to this law.

    • Karate Bearfighter

      This is the big problem in this case. The Sanford Police and prosecutor appear to believe that the stand your ground law shifts the burden to them to establish probable cause that self-defense does not apply before they can charge. I don’t get that from the statute, but I wouldn’t be surprised if the NRA were promoting that erroneous understanding.

      • L2P

        It shouldn’t matter. They have PLENTY of evidence to make the defendant stand to answer.

        It’s like in Florida, they have a White Guy charging standard where they need to have evidence beyond any possible hint of doubt before they’ll charge with murder.

  • Craigo

    Can someone who knows evidence better than I explain whether Martin’s gf would be permitted testify about what he said on the phone just before he died?

    • Katya

      I don’t know Florida law, but the Federal Rules of evidence would probably permit his statements as present sense impressions, excited utterances, or statements of then-existing mental or emotional conditions.

  • mark f

    When I first read about this and saw that Zimmerman’s refusal to obey the dispatcher’s instruction was accompanied by “They always get away,” I had a hunch that this was not Zimmerman’s first time calling. I imagine that he must be absolutely sure that the police department’s ineptitude has led to any number of perps getting away with all kinds of shit in his neighborhood. Well, last night I heard on the news that he’d called 9/11 on fifty previous occasions, all of which were classified as false alarms.

    Everyone is (justifiably) thinking about the alternate reality where the races are reversed. What about if we just give the gun to Martin (and assume he’s licensed to carrty etc)? He’s walking down the street, an SUV pulls up to him and some much bigger guy gets out and starts charging and yelling at him. Feeling threatened, he shoots the guy. Is there any chance he doesn’t get charged, even though as far as I can tell the statute would apply the exact same way?

    • Joshua

      There really is no doubt, but I would actually say that the statute would not apply in exactly the same way.

      Give Martin the gun in this situation and it is exactly what this law is designed for. At least, what they say this law is designed for. As we have seen, in reality it seems to have been designed for other things.

  • occam’s comic

    If Zimmerman does not go to prison for this what is stopping someone from confronting Zimmerman some night and killing him in “self defense”?

    • Barry

      “If Zimmerman does not go to prison for this what is stopping someone from confronting Zimmerman some night and killing him in “self defense”?”

      The fact that the police would probably kill that person while ‘resisting arrest’. And if they survived that, the police would actually investigate the crime, and the prosecutor would prosecute it.

    • DrDick

      Depends the complexion of the case, or should I say the shooter.

      • Njorl

        Wouldn’t any black person in the presence of Zimmerman have a reasonable fear that he will pull out a gun and shoot them because he fears for his life? That would mean that they would be justified in shooting him on sight.

        It isn’t a stretch to see how this FL law leads to the quickdraw gunfights of the old west.

        I was afraid he’d try to kill me because he would be afraid I’d try to kill him because I’d be afraid he’d try to kill me …

        The quicker draw is innocent, because they’re alive to say so.

  • Steve

    From what I’ve heard and read so far, it doesn’t sound like Zimmerman’s actions were reasonable. Hopefully further investigation will uncover what really happened and help the authorities make the proper decision. I do think it’s very important to not jump to conclusions (either for or against the self-defense defense). I’ve never been a big fan of public opinion, especially when only one side of the case is being presented from what I’ve seen.

    A few thoughts:
    -I’m not totally familiar with the FL law in question, but it’s very common in the rest of the country to have self-defense go out the window if you are involved in initiating the confrontation. So the (currently unresolved) issue of who hit first could be very important.
    -Eyewitnesses and the victim’s family have described multiple shots, a warning shot and a “kill shot”, to suggest that Zimmerman did not act in self defense. The police have now confirmed that only one shot was fired.
    -It’s entirely possible that nobody will ever know what exactly happened that night (except Zimmerman of course).
    -To the best of my knowledge 911 operators can’t legally tell you what to do. I think the operator gave him excellent advice to not pursue, but it’s legally irrelevant.
    -If a self-defense case does go to trial, the fact that the defendant shot and killed someone are already known. Therefore, from a practical standpoint, it really does shift to the defense to support a self-defense claim, even though technically it’s the prosecution that has to prove it wasn’t.

    • Barry

      “I do think it’s very important to not jump to conclusions ….”

      The concern is strong with this one.

    • Hogan

      If a self-defense case does go to trial, the fact that the defendant shot and killed someone are already known.

      That’ll happen when you call 911, then chase a guy down and shoot him.

      Therefore, from a practical standpoint, it really does shift to the defense to support a self-defense claim, even though technically it’s the prosecution that has to prove it wasn’t.

      In at least some jurisdictions the burden is on the defendant to prove an affirmative defense like this. I don’t know the rules in Florida.

    • Slocum

      Hopefully further investigation will uncover what really happened and help the authorities make the proper decision.

      Oh dear, yes, please, authorities uncover what really happened and make the proper decision. Where would we be without your wise, firm guiding hand?

  • Murc

    You know, back when the Florida self-defense law was first making headlines, I was broadly in favor of it as an abstract legal theory. You SHOULD be able to stand your ground. If you’re someplace where you have a legal right to be, going about your business, you shouldn’t be held liable for defending yourself.

    But in practice, it’s just been insane. The cops are arguing that Florida doesn’t actually have an initial aggressor exemption anymore? That sort of thing is the cornerstone of what makes self-defense legislation at all workable!

    • L2P

      Even in theory, there’s a lot of insanity in it. You’re at a park and a homeless guy starts acting a little crazy – to the point that you are “reasonably” afraid for your safety. So you pull out a gun and tell the guy to go away, with lots of swearing and angry words (because, you know, you’re afraid, right?) But another guy, unafraid of Harry Hobo, is NOW “reasonably” afraid of you, a gun-wielding maniac. This guy pulls a gun on YOU and tells YOU to back off.

      So now you say heck no! I have every right to be there! So both you and the new guy do what? Well, you start firing, defending your right to be there.

      That’s why we have a duty to retreat. We don’t want to live in Tombstone.

      • Murc

        I would, in fact, argue that it isn’t reasonable to be afraid of a clearly unarmed homeless guy who isn’t all there to the extent you whip out a gun and threaten deadly force. Especially since the mere fact of being armed with a deadly weapon ought to carry with it the presumption you have a much higher threshold of fear than an unarmed man.

        My standard of reasonableness would be that if a guy confronts and pulls a knife on you, and you shoot him, you ought to get off even if you could have safely retreated. You have the right not to be threatened and put in fear when going about your lawful business, nor to be forced to surrender your space to those who are trying to take it from you.

        Now, that’s the kind of rhetoric used to sell laws like this. And it works because a lot of people broadly agree with it.

        But in practice it seems to be working out that people aren’t wielding weapons against muggers and armed robbers. They’re constructing excuses to allow them to blow away undesirables on thin pretexts. And that I cannot stand. The right to use violence carries with it some weighty responsibilities, and should have hefty and severe consequences if you fail to live up to them.

  • anniecat45
    • sparks

      I take it once these politicians learned that Zimmerman isn’t exactly racially pure white, their stance on the matter evolved.

    • Slocum

      Too late, assholes.

  • MikeJake

    Even if we were to assume that the prosecutor is not taking action because of some racist motive he has, why not put it before a grand jury? That’s the absolute least they could do.

  • cpinva

    using the “self-defense” standards being claimed by mr. zimmerman and his father (along with the entire sanford police force), germany & japan should be reimbursed for the damage both countries suffered, at the hands of the allies, and the costs borne by them to eliminate the jews, and destroy nanking, during wwII. clearly, both countries were acting in “self-defense”.

    as a general rule, the initial aggressor has a very high bar to hurdle, when claiming self-defense, especially if that initial aggressor is armed, and the dead person wasn’t. in the instant case, both parties had every legal right to be where they were. mr. zimmerman had no legal right to confront mr. martin, at all, to even speak with him, absent mr. martin’s express permission to do so. that he did so, in spite of being told not to by the 911 operator, seems to make his claim of “self-defense” even more patently ludicrous.

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