Continuing Fallout From the Zimmerman Acquittal

Update: Thanks to Ace for the link.

So it has been over twenty-four hours since Zimmerman was found to be not guilty beyond a reasonable doubt in the killing of Trayvon Martin and sadly, out of ignorance, anger, racism or just plain evil, there are people still stirring hate over the verdict.  I asked Saturday that “if [Zimmerman] should be set free, will the public accept that it cannot exact by private violence hallucinated ‘justice’ on the streets?”  There are lots of people documenting how thugs on twitter and facebook and other social media are making idiotic threats and uninformed condemnation.  That is to be expected.  But what is more serious is when people make unfounded comments on the official websites of major newspapers.

A case in point we come to the Guardian, where Gary Younge entitles his piece Open Season on Black Boys After a Verdict Like This.  Do I have to tell you that he includes a photograph of Martin from several years ago, rather than something that might actually make him look like the near-adult he had become on the night of his encounter with George Zimmerman?

So let’s fisk this mess of a piece.  Younge’s text will be in red:

Let it be noted that on this day, Saturday 13 July 2013, it was still deemed legal in the US to chase and then shoot dead an unarmed young black man on his way home from the store because you didn't like the look of him.

Except that is not what the jury held.  They held that it is legal to shoot a person, armed or not, if the shooter reasonably believes it is necessary to prevent death, great bodily injury (among other harms that are not relevant in this case).  Naturally the color of the victim had nothing to do with it.  As for chasing, it has not been, nor will it ever be, illegal merely to follow without more.  There are some statutes involving stalking, but that requires the creation of—or the intention to create—reasonable fear of death or serious bodily injury.  That requires more than just following.

For the salient facts in this case were not in dispute. On 26 February 2012 Martin was on his way home, minding his own business armed only with a can of iced tea and a bag of Skittles. Zimmerman pursued him, armed with a 9mm handgun, believing him to be a criminal. Martin resisted. They fought. Zimmerman shot him dead.

Actually many of those facts were actually disputed.  I have refrained from tarring Martin, but we are not certain he was “minding his own business.”  Zimmerman thought he looked like a person scoping out the neighborhood to commit a burglary and was acting like he was on drugs.  We cannot know how reasonable that belief was, but given he had marijuana in his blood and was caught at school with burglary tools, we can’t be certain that Martin was just minding his own business.  I have long said it is not necessary to trash Martin’s memory in order to defend Zimmerman, but cancel the canonization, okay?

Second, the defense very much disputed that Martin was only armed with ice tea and skittles.  The concrete of the ground, they argued, was his weapon, though I doubt it would be considered a weapon under Florida law.  And so what if he was unarmed.  You can kill a man and inflict great bodily harm on someone with your bare hands.  Indeed Martin arguably had already inflicted such harm when Zimmerman shot him.  And of course Zimmerman disputes that there was pursuit.

But the most amazing thing is that these supposedly undisputed facts are not generally salient.  Of course the fact that Zimmerman shot him is highly relevant, but the rest of it?  Not relevant.  Here are the relevant questions.

1) Who threw the first punch?

2) If Zimmerman did, just before he shot, did Zimmerman have a reasonable ability to retreat?

3) Was Trayvon Martin pinning Zimmerman down?

4) When Zimmerman shot, did he reasonably believe it was necessary to prevent death or great bodily harm?

Mr. Young doesn’t address any of those questions in that paragraph.  Instead he skirts around what is actually the heart of the issue.

Who screamed. Who was stronger. Who called whom what and when and why are all details to warm the heart of a cable news producer with 24 hours to fill. Strip them all away and the truth remains that Martin's heart would still be beating if Zimmerman had not chased him down and shot him.

Which is a great point if people thought Zimmerman didn’t actually cause Martin’s death.  But in fact there was no doubt on that issue, only whether Zimmerman had a right to shoot.

There is no doubt about who the aggressor was here.

Well, Mr. Younge is going too far.  I won’t say there is no doubt, but all of the evidence points toward Martin.  But it is big of him to admit that...

It appears that the only reason the two interacted at all, physically or otherwise, is that Zimmerman believed it was his civic duty to apprehend an innocent teenager who caused suspicion by his existence alone.

...oh, he means Zimmerman is the aggressor.  Because apparently he thinks merely following a person—without more—is like punching them or something.  And as a point of fact, there is no suggestion whatsoever that Zimmerman was trying to apprehend Martin.  He was only trying to help the police catch him, which is not a crime.

Then next he flirts with calling for racist violence.  I thought that wasn’t legal in the U.K?  (Not that I support England’s viewpoint based restrictions on speech.  This is meant as a joke.)

Appeals for calm in the wake of such a verdict raise the question of what calm there can possibly be in a place where such a verdict is possible. Parents of black boys are not likely to feel calm. Partners of black men are not likely to feel calm. Children with black fathers are not likely to feel calm. Those who now fear violent social disorder must ask themselves whose interests are served by a violent social order in which young black men can be thus slain and discarded.

Yes, how dare Zimmerman believe that Martin is not allowed to inflict great bodily injury upon him?  What does he think, that he is allowed to value his own life or health?  And I wonder why precisely it is that Mr. Younge doesn’t think Zimmerman is allowed to protect his own life and health?

But while the acquittal was shameful it was not a shock.

Which is big of him to admit.  Clearly he is about to point out that just how weak the state’s case is and that in fact Zimmerman should not have even been charged and...

It took more than six weeks after Martin's death for Zimmerman to be arrested and only then after massive pressure both nationally and locally.

...ah damnit, he means that somehow this is the greatest of injustices in the history of injustices or something.  Funny, a part-black, part-Hispanic man is set free, and he cries “racism.”  Sigh.

Those who dismissed this as a political trial (a peculiar accusation in the summer of Bradley Manning and Edward Snowden) should bear in mind that it was politics that made this case controversial.

Actually, “political” isn’t the word so much as “racist.”  As in, if the police refused to prosecute a black man for killing a white man, no one would have batted an eye.  Indeed, if George Zimmerman just had a more “Hispanic” sounding name, such as Jorge Zapata, and they said they were not going to arrest him for Trayvon’s murder, no one would have batted an eye.  But the template was set early on, “a redneck white guy hunted down and murdered an innocent black man and was let off the hook by the ‘good old boys’ in the police.”  And the media was not going to be robbed of his racial strife and its racial morality play, even as the facts didn’t support this claim.

Charging Zimmerman should have been a no-brainer.

Yes, charging him would have required no brains.  As in, you would have to actually be stupid to believe that a man with a broken nose probably didn’t act in self-defense.

Then, amazingly, Mr. Younge tries to talk about the law...

He was not initially charged because Florida has a "stand your ground" law whereby deadly force is permitted if the person "reasonably believes" it is necessary to protect their own life, the life of another or to prevent a forcible felony.

Oh, those crazy Floridians with their evil stand your ground laws!  Presumably Mr. Younge believes the law is more civilized in... where is he from?  Oh, Chicago, Illinois.  Well, let’s examine how much more advanced those laws are in Illinois.  For instance, this is what they say about the use of force to defend the person:

(720 ILCS 5/Art. 7 heading)

ARTICLE 7. JUSTIFIABLE USE OF FORCE; EXONERATION

(720 ILCS 5/7-1) (from Ch. 38, par. 7-1)

Sec. 7-1. Use of force in defense of person.

(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

Of course I am cutting out subsection (b) because it deals with civil liability.  But there is something oddly familiar about that language.  What does Florida’s statutes say about the use of force in defense of person again?

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

Hey, wait a minute... that looks almost the same!  I would say the most significant difference is that Florida’s statute specifically says that there is no duty to retreat, ordinarily.  But in fact because Illinois, like Florida, has a statute specifically imposing a duty to retreat before using deadly force on the “aggressor” the Illinois courts have read the statutory language quoted above as not requiring a duty to retreat: they just aren’t as explicit about it as Florida’s statutes.

So in fact this crazy Florida law is identical to the law in the supposedly more civilized state Younge hails from.

Since it was Zimmerman who stalked Martin, the question remains: what ground is a young black man entitled to and on what grounds may he defend himself?

I have long said that Martin might have been acting in lawful self-defense himself when he evidently struck the first blow.  What we have to get out of our heads is the idea that self-defense is about blame.  It isn’t.  It’s about danger and the reasonableness of using force to address it.  The danger could be created through no wrongful action, but it still gives a person a right to defend their lives.

What version of events is there for that night in which Martin gets away with his life?

Well, if he went home or called the police, he probably would be alive today.  I mean there is that.

Or is it open season on black boys after dark?

Of course not.  I mean let’s imagine that George Zimmerman had the worst intent possible.  This is fantasy, of course, but let’s imagine that this is the case.  Let’s imagine that Zimmerman just hates black teenagers to the point of murder.  So he chased Martin down and murdered him in cold blood for no other reason than because he was black.  Then I guess he went and bashed his own head on the pavement and also broke his own nose.

Well, ordinarily he would be unlikely to get away with that.  There might be witnesses, cameras he wasn’t aware of, not to mention blood splatter evidence.  So it is only when 1) it is at night, 2) when others aren’t around, and 3) when it is raining and it will wash away a great deal of forensic evidence, that Zimmerman will get away with his evil, evil killing.

And really, does anyone seriously believe that is what happened?  For instance, unless someone actually proves to me that Zimmerman is a sociopath, I am not going to believe he injured himself, because that is the sort of thing only a true loon would do.

Zimmerman's not guilty verdict will be contested for years to come. But he passed judgement on Trayvon that night summarily.

Making it sound like he just executed Martin because he felt like it, rather than shooting him after his nose was broken and his head was bashed into the concrete.  I know that those bashing Zimmerman today want to ignore those inconvenient facts, but facts are stubborn things:

And that is about it for this racist column.  And yes, I said racist.  Can you doubt for a minute if the man accused was black and the man killed was some other killer that Mr. Younge would be overjoyed by an acquittal?  That he would be angry he was even charged?

Meanwhile it is just plain silly over at the Washington Post, where Susan Brooks Thistlethwaite writs For Trayvon Martin, is there no justice?  Her comments in red as well:

George Zimmerman, the Florida ‘neighborhood watch’ volunteer armed with a gun, has been acquitted of charges of second-degree murder and manslaughter in the shooting death of unarmed African American teenager, Trayvon Martin.

This verdict is at once so shocking and so expected to me that without a doubt it exposes the lie at the heart of the American ‘criminal justice’ system. We do not have, especially where African Americans are concerned, a “justice” system.  It is often an injustice system that results in unequal treatment.

Yes, a Hispanic man with black blood is set free, proving our system to be raaaaacist!

Perversely, in fact, it seems that 17-year old Trayvon Martin was just found guilty of his own shooting death.  Is this justice? Is this right?

Again, this has nothing to do with the guilt or innocence of Martin, only the danger that Zimmerman faced.  So Martin was not found guilty.  She goes on a bit and then we get to this meme:

Consider another Florida case, this time of an African American woman: in 2012, Marissa Alexander of Jacksonville, Fla., received a 20-years prison sentence for firing warning shots against her allegedly abusive husband. The judge rejected a defense under Florida’s “Stand Your Ground” law. She told police it was to escape a brutal beating by her husband, against whom she had already taken out a protective order. Alexander had never been in trouble with the law before.

Marissa Alexander, an African American woman, fired warning shots at her abusive husband, and got 20 years.  George Zimmerman shot and killed an unarmed African American teenager and was acquitted.

This is getting to be a popular meme.  See?  This black woman wasn’t allowed to invoke self-defense!  This proves that acquitting Zimmerman is racist!

Well, this video actually shows us the case is a little more complicated than that:

Now, given that Angela Corey was involved in that case, too, I am open to the possibility that Alexander was the victim of overzealous prosecution.  But it simply isn’t the case that the only difference was Zimmerman was a different color from Alexander.  For one thing, her victim was alive to speak.  Further, additional third parties were risked and so on.  And what did forensic evidence show?  She claims he choked her, but were there any injuries on her neck at the time?  But to Thistlethwaite the only difference is color.  And to pretend the only difference between two people are their race, when it is not, is a form of racism.

And that bigotry is writ large in the next two paragraphs:

Yet, in the up is down, “white is black” world of white racism, an hour after Zimmerman was acquitted, his attorney, Mark O’Mara, reframed the arrest and charging of his client as motivated by racism against George Zimmerman. “Things would have been different for George Zimmerman if he was black for this reason: he would never have been charged with a crime,” O’Mara said.

Really? When arrest and incarceration rates of African Americans in the U.S. are through the roof, even twice as high as  as their population in the U.S.?

Yes, because the only explanation is that the system is racist.

And of course she was hitting all the memes:

With no apparent sense of irony, after the not-guilty verdict, the brother of George Zimmerman, Robert Zimmerman Jr., said on CNN that he was worried about the safety of his brother, George Zimmerman, because there are “people that would want to take the law into their own hands as they perceive it, or be vigilante’s in some sense.”

Yes, it’s terrible when people who are not law enforcement, like, for example, George Zimmerman, ‘take the law into their own hands as they perceive it.’

But bluntly self-defense is not vigilante violence.  If Zimmerman set out to arrest or kill Martin, that would have been taking the law into his own hands.  But merely (allegedly) following and reporting his location?  That is legal.  Even the prosecution admitted it.

“For Trayvon to rest in peace, we should all be peaceful,” said Benjamin Crump, the Martin family lawyer, and he compared the 17-year old to Medgar Evers and Emmet Till and their role in the ongoing struggle for equal civil rights.  Demonstrations around the country were, in fact, by and large peaceful despite fear-mongering that they would not.

Medgar Evers of course was murdered for advocating for civil rights.  Emmet Till was a fourteen year old black boy murdered for flirting with a white girl.  Both were killed by white men driven by racism, probably Klan-connected.

And Trayvon Martin was killed lawfully because he broke a man’s nose and kept beating him even when told to stop.  Again, it is racist to see only their color and ignore their many relevant differences.

And from there her silly piece peters out.

Meanwhile, for hysterics, it’s hard to beat Aura Bogado, who declares that White Supremacy Acquits George Zimmerman.  Previously she argued that the animations Zimmerman wanted to use were racist because the defense in the Rodney King trial tried to use them, too, or something.  Apparently she didn’t know that animations are in fact a mainstay of litigation, though I find them only sporadically useful.  This time she at least does us the favor of not pretending he is white, but the core of her argument is this:

When Zimmerman was acquitted today, it wasn’t because he’s a so-called white Hispanic. He’s not. It’s because he abides by the logic of white supremacy, and was supported by a defense team—and a swath of society—that supports the lingering idea that some black men must occasionally be killed with impunity in order to keep society-at-large safe.

Um, yeah, that is it.  Not because he broke his nose and was bashing his head against the ground, but because black men just have to be shot now and then, or something.

Instead, I suppose, she thinks George Zimmerman should have been beaten to death with impunity instead.

Incidentally, the only confirmed racist there was Trayvon Martin, who reportedly called Zimmerman a “creepy ass cracker.”  Meanwhile there isn’t the slightest suggestion that Zimmerman had any racist thoughts, and indeed he participated in a protest of violence by a white man against a black homeless man.

As if all of this was not fun enough we hear that at the NAACP’s behest the Department of Justice is contemplating charges against him.  Since Zimmerman is and was a private citizen at the time of Martin’s killing, the only possibility is prosecution under 18 U.S.C. §249, which governs hate crimes.  It says in relevant part:

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person...

...shall go to prison for up to a life sentence, if death results.  Which means that they have to prove that if Trayvon Martin was not black, Zimmerman would have been willing to endure this...

...without shooting him.  I mean even if you feel that those injuries do not justify Zimmerman shooting his gun, doesn’t it seem logical to think that the reason why he shot was because of those injuries?  Does anyone believe Zimmerman thought, “well, if it was a white guy, I would put up with this, but since this is black guy, I am going to kill him?”

Finally, a conservative meme—this time with some truth to it!—that is going around is that Zimmerman would have some immunity from suit.  More likely this comes from this part of Florida law:

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, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

So basically unless you shoot a cop, you have immunity from prosecution and civil liability for the use of such force.  This has led some people to wonder if this verdict prevents the Martin family from suing Zimmerman.

First, as you can see this doesn’t apply to “stand your ground” situations only.  This applies to all self-defense.  Most likely it is linked with “stand your ground” because it was in the bundle of amendments to the Florida criminal statutes.

Second, checking through Google scholar I have not seen any case law on how it is applied to civil suits, but in the criminal context what it appears to do is give a person the right to a hearing before the case starts.  As noted in Dennis v. State (2010), “a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.”  This is the so-called “stand your ground” hearing that Zimmerman chose not to pursue at the beginning.  Commentators, including myself, presumed it had to do with a duty to retreat but in fact, it was about any form of self-defense.

So why didn’t Zimmerman avail himself of that?  Well, for one the burden was higher.  Second, they might have sensed that the judge was pre-disposed against their client.  And they might have felt it was better strategy not to tip off their hand before the case begins.

I cannot be sure how this would apply in a civil context, but I think these are reasonable predictions.  First, the decision yesterday will not bind the Martin family because it represents a finding that the state could not prove, beyond a reasonable doubt, that it wasn’t self-defense.  Failing to prove something wasn’t something, is not the same as proving that it was that thing.  Instead I think the more likely reading is that if the Martins should sue, Zimmerman would have the right to a hearing on self-defense that could nip the entire thing in the bud.

So, that section is is not likely to prevent them from filing suit, but you know what might?  Subsection 3 of the same immunity law:

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection

Ordinarily in America if you are sued, you have to pay the costs of your own defense.  But in a few cases they create a loser pays approach.  But in all of my life, I have never seen a loser pays approach that is this punitive.  First, it only applies to the defendant.  So if it wasn’t self-defense, the plaintiff still has to pay their own attorney’s fees and court costs.  Second, typically, it applies to attorneys fees and court costs only, not loss of income or any other expenses.  This provision holds out the very real possibility that if the Martin family sues George Zimmerman, they will end up owing him money.  Plus, is it possible that the Martin family has ever defamed Zimmerman, even possibly their lawyers?  I am not sure they want to fire the first shot in such a suit, and risk whatever counter claims Zimmerman might have against them.

Plus, here’s another question.  Zimmerman lost his job because of all of this.  If the Martin family filed suit could he then ask for this hearing, prevail and then argue that the last years’ worth of income was lost due to their pursuit of this case?  I doubt a court would say so, but that is the risk the Martin family would be running.  In all bluntness, if I was the Martin family attorney, I would tell them that a civil suit is a poor idea.

But of course there is one other possibility being raised.  Is it possible that Zimmerman might sue various people for the way his reputation has been trashed.  He is already suing NBC.  And I think there is the distinct possibility of a 42 U.S.C. §1983 civil rights lawsuit.  That statute states in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...

A racist prosecution is a violation of Mr. Zimmerman’s right to the equal protection of the law.  Let us stipulate, for the sake of argument, that the prosecutors were not themselves racist.  I would argue it doesn’t matter.  Even if they were the “cat’s paw” to the racism activists screaming for Zimmerman’s head, as long as it is the case that but for Zimmerman’s skin color—or even perceived skin color—he would not have been arrested or tried, then he has a claim under §1983.  And that ignores that various irregularities that occurred during the trial, which arguably degraded his right to a fair trial.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.