Reasonable Beliefs: Prejudice, Myth and Reality in the Trayvon Martin Shooting (Or “Why Han Solo Had the Right to Shoot Greedo First”)

Strap yourself in because this is a long one.

So here we go again, a local criminal incident becomes national news, for some reason and thus all of the world pretends to know something that it cannot know.

We saw this before in the Duke non-rape case.  Those Duke lacrosse players were accused of raping that woman and somehow people just knew that they were guilty.  I remembered wondering immediately why they were so sure.  Hopefully they at least read a few newspaper accounts, but they didn’t look in the alleged victim’s eyes as she described what happened to her, or in the eyes of the accused as they denied it.  So for me the only logical position was to be agnostic—maybe they did, maybe they didn’t, we’ll have to wait and see.  But these people were somehow sure.  There was no word for it but prejudice.  As I wrote in a different context:

To pre-judge a person is to literally “judge before.”  Before what?  Before it is appropriate, before you have all the facts.  Of course normally we think of prejudice as being based on specific traits.  Racial prejudice is to judge a man by his skin color, rather than getting enough facts to judge him as an individual.  But it can be based on anything.

And there was definitely some kind of premature judgment in that case because eventually it was revealed that one of the accused was on video at an ATM at the time he was supposedly committing rape.  And after that the entire case fell apart.

What was the prejudice there?  Well, besides the Hatfield and McCoy feud between alumni of Duke and Carolina, you have to think there was leftover jock resentment, and also part of the calculus is that it fit the sad historical pattern of black women being victimized by white men, and the historical concern that her rights would not be vindicated because she was black.  These are valid to an extent, but just because historically African American women have been victimized by white men, didn’t mean that those particular white men did so; and not only did the local authorities take her claims of rape seriously, but Nifong was so zealous in his prosecution that he ended up violating ethical rules and being disbarred.

And we see this in other instances, where reporters sitting there with the bare text of transcripts decide that a person convicted by a jury of their peers twenty years ago was absolutely definitely innocent, even though an appropriately skeptical person standing from afar wonders how they can be so sure when they never looked the witnesses in the eye.  And certainly the chronic failure by reporters to understand the law itself only compounds the error.

So we have another case of a racially charged incident and everyone pretends to know what happened.  I have looked at the news reports and at this point in time, if you cut through all the clutter one simple truth emerges: at the crucial moment where the law decides whether George Zimmerman committed unlawful murder or justifiable homicide under the principle of self-defense, there is only one living witness: George Zimmerman.

For instance, there are numerous 911 recordings aggregated at this post over at Mother Jones.  It and the reportage generally puts certain facts beyond dispute.  George Zimmerman was doing some unofficial “neighborhood watch” work when he became concerned that Trayvon Martin might have been engaged in criminal conduct.  I will assume his family is correct in insisting that he wasn’t engaged in criminal conduct—and to do so would be out of his character.  And there is certainly no dispute that Martin was unarmed, although he had a bag of skittles and an Ice Tea on him.  So Mr. Zimmerman called the police and as he called them pursued Mr. Martin.  Then at some point the call ended and... some kind of confrontation happened and Mr. Martin ended up dead.  So it seems an innocent man died.  And thus we get this push across the country for Zimmerman to be prosecuted.

But let’s clear out some myths, first.  First, people always seem to take it as a given that it is self-evidently murder to kill an unarmed man.  That is not the case.  The lawfulness of your conduct is not determined by whether the defendant is actually in danger, but whether the defendant is in reasonable fear.

[Please note this is not legal advice.  This is only a discussion of the law for the purpose of discussing the merits of the law so we as citizens can decide whether to change the law.  For legal advice, you need to hire your own lawyer.  I am a lawyer but I am not your lawyer.]

Imagine you for instance that you are in your home and a person breaks in and points a gun at you.  But you are armed too, so you draw your gun and shoot first.  Then the police arrive and they examine the gun and discover that it is unloaded.   Or actually it is just a realistic toy.  In either case, is that murder?

Or let’s rewind for a moment.  This intruder has a gun pointed at you and you have the means and ability to shoot him down first.  Can the law expect you at that moment to hold your fire?  To place your very life on the line, based on the possibility that the gun pointed toward you might be unloaded or a realistic looking toy?  While that action might be admirably brave (or stupid, depending on your disposition), you can’t expect a person to put their life on the line like that.

And bear in mind, the rule that applies to self-defense applies equally to the defense of others.  So if a man has a gun pointed at your spouse’s head (or insert anyone you love), and you have the ability to kill the guy before he can pull the trigger, can the law expect you to risk the life of your loved one?  Whatever argument there is for risking your own life becomes far less compelling when risking another person’s life.

And Florida law says you don’t have to risk either.  Indeed I don’t believe there is a single jurisdiction in America that says otherwise.  Here, for example, is what the Model Penal Code says on the subject (at least as of 2009):

(b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnaping or sexual intercourse compelled by force or threat;  nor is it justifiable if...

And for those honing in on the retreat doctrine, it goes on to endorse that doctrine.  We’ll talk more about that in a moment.  So this is not the most extreme concept of self-defense, this is, we will learn in a moment the softer “minority view.”  And it still supports a robust right of self-defense.

But the key word in that sentence is “believes.”  It’s not about whether your life is in actual danger.  It is if you believe it is.  For instance, imagine two men, John and Bill, are speaking in a restaurant, both of whom are armed.  As they are talking, John is slowly unholstering his weapon under the table, Han-Solo-style, with intent to shoot Bill.  But the evidence later proves that Bill doesn’t know this—he thinks they are just talking.  But then Bill pulls out his gun and straight up shoots John.  Is that self-defense?

No.  Because as I said, Bill didn’t know that John was getting ready to shoot him.  So since he didn’t believe his life was in danger, what he did in that hypothetical was murder (barring some other defense, such as insanity).

So it relevant, but not determinative, that Mr. Martin was unarmed.  I mean obviously if they found Martin with a gun in his hand, Zimmerman’s defense would be simpler.  But Zimmerman doesn’t have to have actually been in danger—he only has to reasonably believe it to be the case.

And the word “reasonably” is important, too.  The law in virtually every state is that it is not enough to believe you are in danger, but that belief must be reasonable, too.  For instance, suppose you fervently believed in voodoo and a person had a voodoo doll of you and threatened to put a needle through the doll’s head killing you.*  Can you use deadly force to prevent that from happening?

Heck no!  Or to take a scenario that has wound its way into the courts more frequently.  As you might remember you can invoke this doctrine equally to prevent the death of others.  So several people who have used violence to stop abortions, have argued that they were justified in the defense of the life of the fetuses.  And I don’t believe a single court has allowed that defense, because under the law they are not persons, so tough.

(On the other hand, several states do allow the use of deadly force to protect the life of the fetus from injury that the mother doesn’t consent to.  In other words, if the mother is trying to get an abortion, you can’t invoke the right to defend others.  But if a man is coming at a pregnant woman’s belly with a baseball bat, her husband can act to defend the life of her fetus, in several jurisdictions.  And I think that makes sense.)

So that shoots down myth #1: it is not self-evidently murder to shoot an unarmed man.

Another myth is that this has anything to do with the “no retreat laws” in that state.  The doctrine and the range of laws are somewhat complex.

First, I don’t believe there is a single jurisdiction that requires you to retreat when a trespasser attacks you in your house.  As the Florida Supreme Court said in 1982—at a time when there was a retreat doctrine in that state, apparently:

It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.

State v. Bobbitt, 415 So.2d 724 (Fl. S. Ct. 1982).  Again, that is back when Florida recognized a duty to retreat.

Things do get more complicated if both people are legally allowed to be there.  That was indeed the case in Bobbitt, and the facts in that case should trouble even fairly liberal readers, given that it was a domestic violence situation.  That is, the defendant, Elsie Bobbitt was attacked by her husband and she shot him.  There is something indeed perverse in the law when you read this line in a similar case, State v. Gartland:

The Public Defender argues that it is ironic that Ellen Gartland could have used the shotgun against a burglar who intended to do her no serious harm but was precluded from using the same force against the true threat in her life, her husband. Instead, the law requires her to flee from her [separate] bedroom, which she had described as the only sanctuary in her chaos-filled home.

694 A.2d 564 (1997).  So my liberal readers, are you still sure it is a bad idea to abolish the retreat doctrine?

Outside the home, the more common rule is that the duty to retreat is only imposed on the “aggressor.”  “Aha!” Martin’s advocates might say, “Zimmerman was clearly the aggressor, because he pursued Martin!”

Well, not so fast.  Consider, for instance the case of People v. Toler, 9 P.3d 341 (Colo. S. Ct. 2000).  In that case, Tristan Toler was a member of a gang that served as a lookout as two of his fellow gang members stole a car radio.  The problem was that the owner, Christy Martinez saw them fleeing the scene and chased them down.  (“Christy” is a man.  Go figure.)  Toler then shot Martinez, claiming that 1) he thought that Martinez was just a rival gang member and 2) he thought Martinez had a gun.

Although Toler did not testify at trial, the prosecution introduced into evidence the videotape of an interview he conducted with the police after he shot Martinez. During this interview, Toler stated that he had consumed alcohol and LSD that afternoon and that he and his companions were on the way to their friend's house when they noticed Martinez's Tracker following them. Toler said that he had "no idea" why Martinez and the others were after him and his friends, and that he and his friends were afraid and ran from the Tracker. Toler said that as Martinez and Galvan pursued him and Baca into the yard, Toler was "afraid for his life" and thought he saw Martinez reaching into his coat for what Toler assumed was a gun. According to Toler, because he thought Martinez was in a rival gang and was going to harm or kill him, Toler closed his eyes and started shooting at Martinez and Galvan, intending only to scare the pursuers, not to shoot them.

Notice that the court unequivocally contradicts this account in one important respect: the court states as a fact that Toler had in fact helped steal the radio from the Geo Tracker.

Now there is a lot of legal ins and outs going on in that case, but I want to focus on one part, where it says the following:

The question of whether Toler was the "initial aggressor" in the encounter with Martinez and Galvan was submitted to the jury as a factual issue for their determination. If the jury determined that Toler was the initial aggressor as the prosecution argued, then, since there was no evidence that Toler withdrew from the encounter with Martinez or communicated his intent to withdraw from the encounter, Toler would not have been entitled to claim self-defense.

Now despite the fact that Martinez undeniably tracked Toler down and confronted him about the theft, Martinez was not automatically the aggressor.  In other words, Martinez had the legal right to confront Toler, at least non-violently.  If he used force first, the law gets dicier, although I don’t believe any jurisdiction allows you to use deadly force merely to protect personal property (your home maybe, but not a car stereo).

Instead, in the Toler case, the question of who was the aggressor depended on who put whom in reasonable fear for their lives first.

So the issue of retreat doesn’t apply to Zimmerman’s decision to pursue and confront Martin, but to the moment where Zimmerman allegedly felt threatened by Martin.  That is the moment, in situations when the law imposes a duty to retreat, is when Zimmerman should have tried to run away.

And the purpose of citing the Toler case was not to say that we had to figure out who was the aggressor, but to illustrate when the duty to retreat arises, because unlike in Colorado, in Florida, at least in 1982, the duty to retreat applied to everyone—even the non-aggressor.  After all, as the Bobbitt court succinctly put it: “Her husband, who was legally residing with her, attacked her in their home without provocation, and she shot him.”  And yet still the Bobbitt court imposed a duty on the wife to retreat from her own home. To borrow from the court’s own language, she must “take to the fields and the highways, a fugitive from [her] own home” even if she was not the aggressor.

But at the same time, the duty to retreat is not as robust as one might think.  For instance, here is the instruction given to the jury in the Bobbitt case:

If attacked by another, even though the attack is wrongful, he has the legal duty to retreat if by doing so he can avoid the necessity of using deadly force without increasing his own danger, but a person placed in a position of imminent danger of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm.

It’s not that you absolutely have to run away no matter what, but only if it is reasonably safe.  So imagine you are Han Solo, and Greedo has a blaster pointed at you.  He has stated a clear intent to kidnap you at gunpoint and was merely gloating for a few seconds while you were both seated.  Virtually every state recognizes the right to employ deadly force to protect you from kidnapping, so self-defense might be available.  So, under those circumstances, even in states that would impose a duty to retreat, you are only required to if you can do so reasonably safely.  So what if you tried to run?  You would face a very real danger of being shot in the back as you did.  So in fact even in “retreat” states, Solo had every right to shoot the guy, contrary to George Lucas’ disapproval of the act.

Now, what we do see in the reportage is that some kind of physical encounter occurred.  According to released police reports, Zimmerman said they wrestled on the ground, and there is evidence that at one point Zimmerman was on his back in the grass.  Zimmerman was also bleeding from the back of the head and nose, so it’s not like as if the guy just shot the guy in cold blood.  Some kind of fight more than likely occurred.

Who started the fight didn’t matter.  This is true under the current law, and under the law as it existed in 1982 in the Bobbitt case.  The only way it would matter is if they adopted a rule more like the Colorado law, which says that you only have a duty to retreat if you are the aggressor.

But does that even make sense?  It’s a tough question.  For instance, suppose two men have a fist fight and suddenly one pulls out a gun.  In terms of the second man’s right to defend his life, what difference does it make who started the fight—the issue is who escalated it to a life or death situation.  On the other hand, in theory an absolute no retreat rule also means that a man can beat his wife, and then if she pulls a gun on him, he can draw faster and shoot her.  But remember, even a retreat rule would still allow him to kill her if it was more dangerous to retreat, so it’s not even clear practically speaking how much of a difference a retreat rule makes.  So it’s a tougher question of whether who starts the fight should matter.

I think what we have to ask is what we can expect out of a citizen.  In my mind the law of self-defense is an extension of the Lockean idea of our natural right to life, liberty and the pursuit of happiness.  Civil Society exists for the purpose of protecting our rights.  Where the government then violates our rights, either by actively breaching them or by failing to protect them, we are then granted the right to protect our rights ourselves.

In America I believe generally that our government tries and mainly succeeds in protecting our rights, neither actively breaching them or failing to protect them.  But there is a gap that simply cannot be closed in any society.  As they say, when seconds count the police are minutes away.  And what that means that if you are suddenly faced with a life or death situation, until civil society arrives to sort things out—in the form of the police—you are on your own.  Whether you are a battered wife facing down her husband, or two men fighting in a dark alley, until the cops get there, you are on your own.

So when we reject the doctrine of retreat, what is the reasoning?  Legal academics hit on a number of theories, but I think the Toler court put its finger on why the people like no retreat laws, albeit in a roundabout way, when they wrote this:

In contrast to the "retreat to the wall" doctrine, many jurisdictions developed a "no duty to retreat" rule, or "true man" doctrine for the use of physical force in self-defense.  The "true man" doctrine stands for the proposition that a "true person," or someone who is without fault, does not have to retreat from an actual or threatened attack even if he could safely do so before the person may use physical force in self-defense

Now I want you to ignore the doctrinal discussion and focus on two words: “true man.”  Or maybe the better term is “real man.”  Like or hate it, there is the attitude that a real man doesn’t run from a fight.  And the question is whether or not you want to send a person to prison for a number of years because his (or indeed her) personal code says that they will not be bullied or run off.

Another question you might have is whether this makes it easier for a person to fabricate a self-defense claim in this circumstance.  Bluntly, I don’t see how it does.  The only thing it does affect is situations where the actual conduct can be proven—either by confession or by other evidence—and in that circumstance, you have to confront the question of whether the conduct is something you think should be punished, not the fear that they really did something worse.

Still, taking this away from general principles and back to the instant case, the fact is only one man alive knows precisely what happened between Zimmerman and Martin on the evening of February 26, and he says it is self-defense.  Unless his statements amount to a confession that it was not self-defense—that the facts he admits to makes it undisputed that his legal conclusion was wrong—I don’t see how the State of Florida could even be justified in indicting him.

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One final thing.  I see where ABC news is claiming that supposedly you can hear Zimmerman saying “f--king coons” under his breath in his 911 call.  I think it is particularly tawdry of them not to provide an audio clip to listen for yourself.  I have already provided the link but go here and listen starting at about the 2:15 mark.  He definitely says the f-word, but personally I can’t tell what he says after that, and it sounds more like a word starting with the letter P than a C.  But judge for yourself.

But if you think he said “coons” and we assume that there were no raccoons in his line of vision that he was complaining about then that means he is a racist and deserves to be federally prosecuted for it being a hate crime, or so the argument goes.

But that is only true if it is a crime.  I don’t care if a guy is a Grand Wizard of the KKK, if a black person points a gun at him, unprovoked, he is allowed to defend his own life.  We do not strip a person of their right to life--which includes the right to defend one's life--just because they hold an odious view.

The only question it bears on is whether Zimmerman reasonably feared for his life.  If it could be shown that if Martin had been a different race or ethnicity (Zimmerman is half Hispanic, for what it is worth), that he wouldn’t have shot, then yes, it would seem that he didn’t reasonably fear for his life.  But short of a confession on this point, I don’t see how they could ever prove that.

And remember folks, the standard of proof is beyond a reasonable doubt.  Bearing some surprising evidence (such as entry wounds in Martin’s back) or a confession, I don’t see how they can get there.

People can rightfully be concerned that Zimmerman committed murder but will get away with it.  I am agnostic on the question myself, but I understand the fear.  I mean after all, I fully believe that is exactly what did happen with OJ Simpson.  But that is the price we pay for our system—that we would rather let ten guilty persons go free than imprison a single innocent man.  It means occasionally a person commits a crime and gets away with it—an unfortunate event, but what is the alternative?

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* I wrote that strongly suspecting that this “Hollywood” understanding of voodoo is likely to be B.S.  But the purpose of that passage is to illustrate a point by hypothetical, not to accurately report on the beliefs and practices of this religion, of which I remain ignorant, frankly.

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