Martin/Zimmerman. Lose/Lose?

[usernamenumber]

I've been following Trayvon Martin case for a while, and have been reading a lot of news articles, blogs, and comments on the subject (Google Alerts are great, btw).

There's a good summary at Mother Jones.

This is a shitty situation, make no mistake. But the thing is it's a complicated shitty situation. The shit is in layers, and popular opinion, as it is wont to do, seems to be boiling it down to something simple. Too simple. There's an aspect of this story that, at least as I understand it, I don't think has been put forward as clearly as it should be, so I'm going to put my take on it out here, in part because I would love to be shown that I'm the one who's got it wrong, and that the simpler, easier version of the problem is the most accurate.



I'm referring specifically to the calls for George Zimmerman to be arrested. Don't get me wrong, from everything I can tell, if things were right in the world he would be in jail pending his arraignment, but the reason he's not is what makes this so complicated, and why even if the local cops weren't the racists-who-don't-give-a-fuck that everyone has decided they are, it still might not have changed the outcome.

I'm sure this isn't the first time anyone who has been following this story has heard about Florida's now-infamous "stand your ground" law, but I wonder how many have read it. Here it is. Go on, give it a look. At least skim it. Seriously, it's short. Don't rely on the news to filter out the big words for you. If I sound pushy and frustrated, it's from reading way too many comments from, and even articles by, people who don't seem to have bothered.

Ok, short version: the law lays out three circumstances and describes the requirements for different levels of force, including deadly force, to be legally justified in each. These are "776.012 Use of force in defense of person", "776.013 Home protection", "776.031 Use of force in defense of others". 776.012 would be the most relevant starting point here, as Zimmerman claims he was defending himself.

"But wait", everyone cries, "that's bullshit! He almost certainly started the fight!", and a lot of the articles and discussions I've read seem to stop there. Indeed, the legislators who wrote the law hasten to agree, saying it doesn't protect people who are "out pursuing and confronting people", but here's the thing: I think what they mean to say is "we didn't intend our vaguely-written, ill-conceived, stupid, stupid law to protect vigilantes". My response: Duh. Also, said lawmakers are negligent idiots.

IANAL, but here's what it actually says (and again, I would love to be wrong here, so actual lawyers please have at!):

776.041 Use of force by aggressor.—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;
...


So the law could at least be interpreted to say that, actually, you can go around confronting people and if, in the fight you start, you end up on the ground getting your ass handed to you such that you are in imminent danger of great bodily harm and can't escape (and/or, as some reports say Zimmerman is claiming, he had the gun in the waistband of his pants when his shirt got pulled up and they both went for it (and really, if you were in Martin's position, wouldn't you at least think about doing that, if only to disarm the scary dude who just accosted you?)-- cue Chicago Soundtrack), deadly force can be legal, even when the results aren't politically convenient for the bill's authors.

But wait, it gets worse.

Did you notice the "Immunity from prosecution" bit? The bill also says exactly what is required to arrest someone under this law, and it doesn't make it easy for the police to do the right thing:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, . . . As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

Zimmerman was bleeding from his face and the back of his head, consistent with being on the ground in a fight, and he claims he yelled for help but no one came (someone doing so is clearly heard on some of the 911 calls, but while Zimmerman says it was him, the Martin family says it was Trayvon).

And the thing is, at least the way I'm reading this, it doesn't really matter if he might be lying in terms of whether the cops could arrest him or not. "Wait, you ended up on the ground while fighting a 17 year old who weighs 100 lbs less than you??" is suspicious, but is it "probable cause"? I'll leave strong opinons on that to those with more knowledge than I have, but in light of the rest of the law it at least makes the cops' assertion that they didn't have enough to book him sound less absurd, and if that's the case...

Well, that brings me to why thinking about this case and the popular reaction to it drives me nuts. We are presented with a dilemma: we can either have a man who killed an unarmed boy walk free, at least until his arraignment, assuming he can even be arraigned, or we can essentially tell the police, "this person didn't break the law, but we feel very strongly about it and we want him arrested anyway!". At least for me, this is really difficult because, while I wholeheartedly get the latter sentiment in this instance, the broader implication of it is fucking scary: If enough people are pissed off by something you've done, you should be arrested for whatever people think you should have been arrested for, even if you haven't broken the law. Think about what that means. Isn't exacting self-defined justice when the system fails to do so... vigilantism?

But then, what are people left with? We can ensure that the people responsible for this law never get within a mile of any legislature ever again because their stupid-ass law might let a man who is at best an irresponsible vigilante and at worst a murderer go un-punished, and we can remember this lest future laws make the same mistakes, but what kind of consolation is that against the loss of a kid? That's what makes this shit so shitty to me: maybe there just isn't any consolation, at least not without playing a dangerous, dangerous game.

Here's where I would love a sanity-check from y'all. Is there some detail I'm misunderstanding, such that the situation isn't what I think it is? If my understanding of the legal situation is right, do my Scales Of Justice seem out of balance for treating "we, as a society, can't make retroactive laws by popular insistence" like it weighs even close to the same as "this shouldn't go un-punished"?

All I know for sure is that this whole thing is a sad and frustrating. Sorry for all the cursing. Needless to say, this is not a subject that makes me very happy.

Edit As part of the investigation pursuant to a no-confidence vote against the sheriff, some documents have come out with more on his side. I haven't digested them yet, but here are some excerpts with commentary, and here's the full doc.

Comments

[kattw.livejournal.com]

I honestly tend to agree with you. I think Zimmerman is a creep. I think he is guilty of murder. But that's a non-legal guilty, because Florida legalized murder. So he quite possibly did something legal.

Two of the bigger possibilities I've seen so far are A) the law in question suggests the person has to be engaged in an otherwise legal activity. Now, Zimmerman essentially kidnapped Martin, you could argue. He pursued, cornered, and harassed. It is questionable if these activities were legal. But as for standing his ground? A lot of folks keep talking about how Zimmerman pursued, and fail to realize that that just means he held a different piece of ground. What matters is when he felt threatened, nearly as I can tell.

Second is that the police have done a TERRIBLE job investigating. They checked Martin for drugs and alcohol, but not the guy who killed him. Really?

There's also the possibility he'll be found guilty of a hate crime. The neighbors claim he's had a special nut against black young men, and keeps trying to pin crimes on them. How accurate that is is certainly in question, but so far, from what I've seen, almost all the eye witnesses (or phone witnesses, or whatnot) disagree with the cops and with Zimmerman and his family about what happened.

It's terrible, in any case, and what's almost worse is that it took something this absurdly terrible to get an uproar. Stuff like this happens too often, and shouldn't. But turning shouldn't into doesn't is a rather big job that nobody who cares really knows how to do.

As to your final graff, I tend to agree there too. I liken this to when GE was being harassed to dredge the Hudson due to the chemicals it had dumped in. But, when it DID that, it was legal. The public was trying to punish it retroactively for following the law at the time. And, as you say, no matter how obviously sane it seems, it's insane, because once you can make ONE law apply retroactively, you can make any. And the next logical step is to just skip the legislation, and go straight to public opinion. And the public has a great record of being more angry than sensible.

[laurion]

I too have been following it to a certain extent. Here's some other peripheral reading material.

23 other states also have 'Stand your Ground' laws. Many modeled after Florida's. Varying degrees of intelligence in their writing. http://www.propublica.org/article/the-23-states-that-have-sweeping-self-defense-laws-just-like-floridas

This is not the only case where SYG has been controvertial (which is probably no surprise). http://www.theatlantic.com/national/archive/2012/03/stand-your-ground-and-vigilante-justice/254900/ And as the article author points out, these laws incentivize gun ownership and the ratcheting of disproportionate response.

Was this at all racial? If so it could go to the federal level. http://www.theatlantic.com/national/archive/2012/03/did-george-zimmerman-use-a-racial-slur/254925/

[marphod.livejournal.com]

See, the key line for me is 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.

Assuming Zimmerman is the aggressor (which he may contest), as soon as he has control of the gun, he must use every reasonable means to escape.

Now, did he have control over the gun and a simultaneous means to escape? I don't know. Given he out-weighted the kid by 100 lbs, if he had control of the gun, he probably could have gotten away. But that seems an open question.

[dot_fennel]

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

Note the "or" at the end there. If (1) is true of someone, it looks like they don't have this law's protection, regardless of whether condition (2) (which you went into detail about) is true.

Was Zimmerman committing a forcible felony? It would be hard to convince me he wasn't.

Also, do police departments regularly decline to arrest someone who *seems* to have committed murder just because, if everything that person said was true, it wasn't actually murder?

[usernamenumber.livejournal.com]

Truly, the world would be a better place if legislators would just use OR and XOR like normal people. ;)

[usernamenumber.livejournal.com]

Also, do police departments regularly decline to arrest someone who *seems* to have committed murder just because, if everything that person said was true, it wasn't actually murder?

Well, define "regularly". In Florida, it sounds like that's exactly what they're required to do. The burden is on them to prove it *wasn't* self-defense, and they're not allowed to arrest the guy while they investigate.

[dot_fennel]

We're now way past the point where I have any confidence... but I had thought "probable cause" (which I believe was the standard given for making an arrest in the face of this law) is a much lower standard than "proof". It's more like, if you have probable cause to think someone committed a crime, you can search their house (or whatever) in the expectation of FINDING proof that they did it. You don't need proof before you can move forward at all.

[beowabbit]

Disclaimer: Haven’t yet followed your links.

Yeah, that was about the impression I had of the impact of the stand-your-ground law on this case. Awful, awful legislation.

Here’s the question I have, though: Is it even constitutional (i.e., valid) legislation, as applied in this way? I mean, if a state passed legislation stating that it was a valid defense against a charge of murder that the alleged victim was a Jew, that would be a clear violation of the Equal Protection clause, and unconstitutional. The facts here are a lot murkier, but it seems very likely that racial bias played a part here.

So here we get into an awful situation: If Zimmerman genuinely believed that he was acting in accordance with the law, but the law the Florida legislature duly passed and he thinks he’s acting in accordance with in murdering this child is in fact unconstitutional, what does the law do with him now? (To make it worse, on the face of it the stand-your-ground law is not racially biased — and thus appalling, but not necessarily obviously unconstitutional —, but in practice it almost always will be. ETA: Come to think of it, that makes it no different from any number of other widely enforced laws commonly accepted as constitutional.)

You can make some very distant and tenuous analogy with the people who were prosecuted for war crimes and crimes against humanity after World War II, despite the fact that their actions were in full compliance with German or Japanese law at the time. But that’s not a very good analogy and this is a really awful legal situation.

I suppose it helps clarify this that there’s federal civil rights legislation that makes it illegal to violate somebody’s civil rights (like, say, the right not to be murdered in cold blood) on the basis of race which trumps any state law purporting to legalize murder.

[breakinglight11.livejournal.com]

Nothing particularly trenchant to add, but I think you hit the nail on the head, Brad. Well stated.

[satyrgrl.livejournal.com]

Thank you so much for the analysis, links, etc. A couple thoughts:

First, on the immunity from prosecution thing - I suspect this may have more to do with protecting witnesses from the risk of prosecution and keeping them clear of the 5th Amendment. It essentially creates a self-defense claim that kicks in before trial, which is actually really handy for a number of reasons. Self-defense law is generally completely screwy and ill-suited for describing the way people actually behave. This law is poorly worded, but I can see why it would be an incredibly useful to have a better written thing like it.

Also, they totally have probable cause to arrest Zimmerman. Probable cause is a very low standard, and as far as I can tell there has been no allegation that Martin and Zimmerman had more than a tussle on the ground, nothing that would justify the use of deadly force. Also, this is the government we're talking about. It isn't as if they have anything to risk by arresting Zimmerman. Were they to err on the side of arresting Zimmerman, and a judge or grand jury later determined that there was no probable cause that he used unreasonable force, the police would just shrug and go home the way they do every day in every jurisdiction after they arrest people without probable cause. The idea that they are somehow meaningfully restricted from making an arrest by this law is kind of incredible to me.

Fundamentally, I think this case looks, walks, and quacks like an incredibly racist duck. I know this analogy has been done to death, but I'm gonna say it anyway: if all the facts were identical except that Martin was a white girl, Zimmerman would have been arrested the night of the killing.

But I'm full of cognitive dissonance on this too. The part of me who deals daily with the racism young black men experience, and who knows how backwards Florida's law enforcement can be, wants blood. The part of me who would rather see a murderer go free than see him executed by my government takes issue with that, as does the part of me who knows that Zimmerman's prosecution would do nothing to improve the social conditions that led to this murder and that satisfaction of my rage is in no way the same things as meaningful justice.

I just hope this turns into what it looks like it might, a national conversation about the threat of violence and persecution young black men face on a daily basis.

[irseri.livejournal.com]

Edge cases are fun aren't they? it's a pity more lawmakers don't consider them when writing laws.

Two points. First, toward yours about being the agressor as per 776.041 sec 2a. I read the *intent* of that section to apply to a situation like a mugging where, when threatened by an assailant, the victim fights back, the assailant brandishes a gun and the victim draws and fires. I don't think it was intended to allow someone to walk up to a guy twice his size, kick him in the balls and, when the larger man moves to attack, be allowed to legally shoot him.
Nor to I think that's the case here, note section 1 which removes the protections of the law if "attempting to commit, committing, or escaping after the commission of, a forcible felony;"
An armed man, accosting another man, after contacting 911 and being told not to interfere strikes me as murder as per Fl code 782.04 sec 2 or aggravated assault (784.021)
Also, interestingly, there is also Fl code 782.11 "Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree" Even if Martin attacked Zimmerman, I think Zimmerman coudl be charged under that last one.
Any of these seems to me to indicate that Zimmerman was committing a felony by confronting Martin.
Second, as an advocate of 2nd Amendment rights, and the right to self defense in the US, I think the actions that Zimmerman took were abhorrent. Once informed that the police were on their way and told my 911 not to confront the suspect, he should have backed off. Without knowing anything else about the situation, I'm willing to say that even if he was confronted, he should have retreated. I can think of no series of events where he would be attacked in such a way that he felt his life was in danger.
The act of confronting someone against 911 advice, in my mind, makes Zimmeman the attacker the one committing a felony, removing any self-defense protections.