Savage Idiocy in the Air in the Zimmerman Case (Update: Links!)

Update: thanks for the Aceolanche!  And a Pirates Coveanalnche!  Always cool, and always appreciated.

So the prosecution has rested in the Zimmerman case. I have long said words to the effect that unless the prosecution produces some surprising evidence I had not heard of before, that Zimmerman should be acquitted.  Well, the time for that evidence to be presented has passed, and it hasn’t manifested itself.  So my original provisional conclusion is now my near-final conclusion.  At this point, it would take nothing less than a confession by Zimmerman to get us to proof of guilt beyond a reasonable doubt, or something equally spectacularly surprising.  And I don’t think that is very likely.

But in fact I wanted to take a moment to discuss one idiot’s comments: Michael Savage.  And in case you are wondering, I have packed at least one more pun into that title as you will see in a moment.  Now truthfully I am not an aficionado of radio, but the little contact I had with his show suggested he was a blowhard and beyond that I paid little attention to him.  But the Savage Weiner* managed to be especially dumb in this commentary, via Mediaite:

He starts by arguing that George Zimmerman’s injuries were not so bad.  All he needed was a bandaid...

Enlarge as you see fit.  What are you going to believe?  The state's witness or your lying eyes?

Then Savage announces that he is going to “break an analysis” that you haven’t heard anywhere else.  Not facts, mind you, just that he has a view no one else has.

And he is right.  I have not heard this completely idiotic view anywhere else before.

First he says that Zimmerman is guilty of what he is being charged with: manslaughter.  Well, in fact, he is also being charged with second degree “depraved heart” murder.

In the next line he says, “he didn’t intend to kill him, but he may as well have intended to kill him.”  Um, no, he shot Trayvon Martin through the heart.  He didn’t accidentally shoot him.  In law that is ordinarily intentional murder, unless some defense applies.  If no defense applies, it’s intentional murder.  That is beyond reasonable dispute.

So we are already off to a rough start.  Alas he goes on.  And on.  He goes on and on telling us how much more brilliant he is than the rest of us.  “I know more than they do” he declares.

“Zimmerman was carrying a Kal-Tec semi-automatic 9 mm handgun” he goes on.  He then explains why supposedly this fact is the nail in Zimmerman’s coffin: “he had a bullet chambered in the gun and he had the safety off.”

Well, first off, there is no safety to turn off on that gun.

If you go to the manufacturer’s website you will see a reference to a “hammer block safety” and if you don't know guns, you might be excused for thinking that it was a safety like what the Savage Weiner was describing.  But it isn’t.  What it is, is this.  The hammer in the gun is always in a semi-cocked position.  So if by some accident the hammer was released it could theoretically strike the round and fire the gun.  So to prevent that, a mechanism, called simply a “hammer block safety” is put in the gun.  It is removed automatically every time you pull the trigger and reinserted, also automatically, when setting up the next shot.  And there is no way for you, the user, to turn this safety on or off (except maybe by physically taking the gun apart).  I mean to be blunt, this mechanism is there in significant part to prevent liability suits, so they don’t want any idiots out there disabling it (and it really is a necessary safety precaution you shouldn't be disabling).

No, this Savage Weiner thinks this is like, is a manual safety, in essence a button or a lever some guns have that prevent the gun from being fired unless you turn it off.  But Mr. Zimmerman’s gun doesn’t have that kind of a safety.

Alas he goes on (my transcription combined with Mediaite’s):

Had he not chambered a round prior to meeting Trayvon, and had he not taken the safety off — even if Trayvon, during the altercation even if Trayvon had tried to grab the gun away from Zimmerman — had that gun not been chambered with a round and safety off, Trayvon Martin would have had to use two hands. You can’t do it with one hand, many of you don’t own guns.  He would have had to let go of Zimmerman, he would have had to stop punching him, he would have had to take both hands on the gun, hold the pistol grip with one, pull the top back, to chamber a round and then he would have had to unlock the safety, during which time the mixed martial artist in training, Mr. Zimmerman, would have had time to throw him off and pound the hell out of him.  Because Zimmerman carried a loaded weapon with the safety off, Trayvon Martin is dead.  Therefore, the responsibility is in the hands of Zimmerman.

My brain is hurting there is so much stupidity packed into that.  First, let’s remember that Zimmerman more than likely chambered the round at home, or some other time and place long before he set eyes on Martin.  Most gun owners I know keep a round chambered.

And the Zimmerman case, by the available evidence, makes it obvious why that makes sense.  From the available evidence, it looks like Martin had sucker punched Zimmerman, knocked him down, knelt on top of him and started punching him in a “ground and pound.”

Now let me pause and say something about that.  Martin may have himself been acting in reasonable self-defense when he did so.  He may have felt threatened by Zimmerman following him and because this was a young man on the cusp of manhood he might have felt he had to confront Zimmerman rather than running home or hanging up on his friend and calling the police.  And when he struck the first blow, he might have felt frightened that Zimmerman was about to attack him.  And if he felt that way, that would be valid self-defense.

And it would be irrelevant.  There has been a lot of talk in this case about who struck first and why and so on, but Florida law makes this irrelevant in this case.  Fla. Stat. §776.041 deals with the use of force by an 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

(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.

So the only thing being the aggressor changes is that you have a duty to retreat... which is not relevant when a person is sitting on top of you pounding the hell out of you.  This is why indeed this entire “stand your ground” debate is irrelevant to the case.  Stand Your Ground laws are about a duty to attempt retreat and, again, a duty to retreat is not relevant when you can’t actually retreat.

So all available evidence points toward Martin throwing the first punch.  As in there is only one living witness to that moment, Zimmerman, and even if you don’t this he is trustworthy, you have no other evidence.  You can’t just assume he was the bad guy—not in a court of law.  You have to prove it.  And besides, this was plainly an extremely one-sided fight and it is hard to understand how that could be the case unless Martin got the drop on Zimmerman.

And like I said it doesn’t matter, legally.  At most it would have imposed on Zimmerman a duty to attempt to retreat before shooting, and he couldn’t retreat.

So then Martin has Zimmerman on his back and is beating on him.  Now imagine if Zimmerman had not chambered the round?  Then he would have to not only pull out the gun but he would then have to use two hands to pull back the slider to get the gun ready.  In that time period, Martin—who was clearly winning the fight—would most likely have taken it from him.

But that’s okay, Savage assures us, because then when Martin goes to pull back the slider, Zimmerman could have beaten him.  So he thinks Zimmerman’s best play was to use the gun as a distraction, or something.  Does that sound like a good plan to you?  Give your opponent a gun and hope to beat him up with your fists while he is distracted with getting ready to shoot you?  Especially when you were already losing the fight?  Doesn’t that present a very high risk that he will continue to beat you (perhaps now pistol whipping you) and then shoot you?

As he was being beaten, Zimmerman didn’t know Martin. Maybe Martin was a basically good boy and he would have stopped before inflicting serious injuries.  But Zimmerman had no way of knowing that.  All he knew is this kid was beating him even after Good told Martin to stop.  And if Zimmerman reasonably believed that he had to shoot Martin to prevent death or great bodily harm, then that shooting was justified.

Anyway, the idea Savage seems to be peddling is that if you can go back in time and find one thing that Zimmerman did differently that could have avoided this outcome, he should have done that.  Consider how elaborate Zimmerman’s thought process would have to be: “I better not chamber a round, so that if I am following a suspected criminal and he jumps me, and is kneeling on me as he pounds me, that if I draw the gun and he takes it, he will have to take his hands off of me so I can strike at him.” Why should he prepare for that circumstance, rather than, say, a man suddenly drawing a gun at him and he needs to draw fast and shoot?

But I hear that a lot in the debate.  People argue that if Zimmerman did one thing differently Martin would be alive.  If he listened to the dispatcher and stayed in the car, none of this would have happened.  Or, if Zimmerman hadn’t “profiled” Martin, he wouldn’t have followed him, and none of this would have happened.  And so on.

What they are failing to get is the concept of proximate causation.  It is not enough to point at some event in the past and say “if X didn’t happen, Martin would be alive today” or “if Y did happen, Martin would be alive today.”  Anyone familiar with the concept of the “butterfly effect” understands that we could reach back even centuries to find such causation.  For instance, if Zimmerman’s parents had never married and had children Martin would probably be alive today.  So... we arrest his parents?  Indeed, since he comes from a mixed race family, we could say that if the Supreme Court had not ruled at it had in Loving v. Virginia (striking down so-called miscegenation laws) that Martin would be alive today.  While in both cases this is true, we intuitively understand that it is also irrelevant.

Instead in the law we have come to understand the concept of proximate causation.  And while it is not obvious in the term, there is a legal component to this as well.  In other words, this is not merely a matter of figuring out that A caused B, but also that A caused B in a way that the law would recognize.

So first the behavior has to be itself wrong in some way—including the act being wrongful potentially because it is negligent.  That eliminates any blame for the Supreme Court or Zimmerman’s parents for causing him to be born, because striking down racist laws and two people in love having children are not wrongful acts.  Neither is, for that matter, investigating what appears to be potential criminal activity.  Or chambering a round in your gun.  Or even “profiling” as long as it is profiling by conduct and not according to race, religion, etc.

Even if the behavior is wrong, it has to be wrong in a way that is relevant to the situation.  For instance, imagine a vehicle is driving too fast on a street.  That is wrong.  As it passed under a tree, a rotten branch falls and landed on the roof of the vehicle doing serious damage.  Is the driver of the vehicle partially at fault in that accident, then?

This is not a hypothetical.  Lawyers almost immediately recognize the facts, if not the case it comes from: Berry v. Sugar Notch, 191 Pa. 345 (1899).  And the court ruled it did not.

What the court found was that the fact this driver (of a streetcar, in fact) was speeding had nothing to do with the accident.  Remember the branch fell on the roof of the vehicle.  Thus the court wrote that

On the day of the accident the plaintiff was running his car on the borough street in a violent windstorm, and as he passed under the tree it was blown down, crushing the roof of the car, and causing the plaintiff's injury. There is some conflict of testimony as to the speed at which the car was running, but it seems to be fairly well established that it was considerably in excess of the rate permitted by the borough ordinance. We do not think that the fact that the plaintiff was running his car at a higher rate of speed than eight miles an hour affects his right to recover. It may be that in doing so he violated the ordinance by virtue of which the company was permitted to operate its cars in the streets of the borough, but he certainly was not, for that reason, without rights upon the streets. Nor can it be said that the speed was the cause of the accident, or contributed to it. It might have been otherwise if the tree had fallen before the car reached it, for in that case a high rate of speed might have rendered it impossible for the plaintiff to avoid a collision which he either foresaw or should have foreseen. Even in that case the ground for denying him the right to recover would be that he had been guilty of contributory negligence, and not that he had violated a borough ordinance. The testimony, however, shows that the tree fell upon the car as it passed beneath.

In short, because the branch fell on the roof of the car and not in front of it, the speed of the streetcar had nothing to do with the fact they were hit.

Of course in a “butterfly effect” sort of way, speeding did cause the accident.  If he had been going a little slower, or even a little faster, the branch might have missed him.  It was because he went that particular speed that he ended up being in that particular spot when the branch fell.  But the court addressed that as well:

With this phase of the case in view, it was urged on behalf of the appellant that the speed was the immediate cause of the plaintiff's injury, inasmuch as it was the particular speed at which he was running which brought the car to the place of the accident at the moment when the tree blew down. This argument, while we [recognize?] its ingenuity, strikes us, to say the least, as being somewhat sophistical. That his speed brought him to the place of the accident at the moment of the accident was the merest chance, and a thing which no foresight could have predicted. The same thing might as readily have happened to a car running slowly, or it might have been that a high speed alone would have carried him beyond the tree to a place of safety.

The key word in that is “foreseeability.”  We do not put up speed limit signs so as to prevent you from being in a particular place at a particular time so that something might hit you from above.  We put them up so that 1) you can navigate the streets without losing control of your car and 2) you will have sufficient time to respond to dangers should they arise.  The courts have repeatedly said that “proof of negligence in the air, so to speak, will not do.”  Instead the behavior has to be negligent in a way that tends to cause the harm complained of.

And the same can be said about wrongful conduct generally, although when conduct is intentional instead of merely negligent, the courts sometimes stretch causation further.  For instance, take Kimberlin v. DeLong, 637 NE 2d 121 (Ind. 1994).  In that case, Brett Kimberlin (also famous for being my stalker) placed a bomb in a gym bag at a high school football game.  Carl DeLong and his wife Sandra, concerned citizens, saw the bag and not realizing there was a bomb inside, picked it up and carried it away.  The bomb exploded as Mr. DeLong carried it, grievously injuring him and his wife as a result.  Four years and many surgeries later, Mr. DeLong decided to kill himself and in that case Kimberlin was held liable for that death.

Kimberlin argued that as a matter of law, he was not responsible for this suicide but the Indiana Supreme Court quite reasonably felt otherwise.  They said that if the explosion was caused by merely negligent conduct—like if Kimberlin had improperly stored explosives resulting in an explosion, instead of deliberately setting a bomb at a football game as he had—that DeLong’s suicide would be seen as an “intervening act” breaking the chain of causation.  But since DeLong’s suicide was caused by injuries that were the result of a deliberate and malicious act, Kimberlin was held to be legally responsible.

So Brett Kimberlin was held legally responsible for Carl DeLong’s suicide.  On the other hand, if DeLong had instead gotten incredibly drunk and got behind the wheel and struck a bus full of schoolchildren, Kimberlin would be unlikely to be held responsible for any of that even if we believe that if Kimberlin had not left that bomb, DeLong would have done none of that.

So applied here what you have to show is 1) that but for some act or omission by Zimmerman, Martin would be alive, 2) that the act in question is actually wrong and 3) that it is wrong because it tends to cause people like Martin to be killed.  And even then, that at most gets you negligent homicide which is commonly called “manslaughter.”

Incidentally, that is also what you get if you believe a person was honesty acting to defend themselves but didn’t quite meet the legal standard: manslaughter.

Anyway, Savage goes on to claim that somehow the fact Zimmerman had chambered a round and left the safety off (*facepalm*) that this meant he was hunting for someone to shoot.  Which kind of goes against his claim that Zimmerman didn’t intentionally shoot Martin, and of course is idiotic.

And then he discovers something that no one ever discovered ever in this case: that Zimmerman referred to “f---king coons.”

Folks, we went through this last year.  Even I admitted it sounded like he said “coons” at one point.  And then CNN enhanced the audio and now even the prosecutors admit it was “punks” not “coons.”

And that is it for this dumb segment.

And the larger relevance here is this.  For some time, Savage has been accused of being a fake conservative—that he is really a liberal out to make conservatives look bad (and make some money in the process).  Well, for me this is powerful evidence that this might be the case.

Not every conservative is an expert on guns.  I am not.  I have never hunted, for instance, and I have literally only purchased guns for self-defense.  I learned enough to learn my weapons and that is all.

But I submit that every conservative knows at least one person who knows something about guns.  “Gun nerds” is my preferred term, because it points out that it isn’t much different than being a “law geek” or “history geek” as I readily admit I am, or a sports fanatic as others self-identify.  For some people owning, firing, collecting guns is a hobby akin to playing video games or collecting jazz albums.  I might not understand why guns appeals so much to certain people, but I feel a similar kind of love for American history, to name an example.  And any conservative worth his salt knows at least one “gun nerd.”  Remember when Savage said, “many of you don’t own guns.”  He was trying to set himself up as some kind of expert.

I am not an expert on guns by far, but anyone who merely shops for a pistol will know that most pistols don’t have any kind of safety you can manually turn off.  That didn’t tell me Savage was definitely wrong, but it made me suspect he was.  It should have made him suspect he was wrong, too.  And people who actually own pistols more than likely would know that you don’t talk about the “top” of a semi-automatic, as Savage did, but you talk about the “slider.”

But Savage not only didn’t know what he was talking about when discussing Zimmerman’s gun (while proclaiming he knew something no one else knew), but he apparently didn’t know anyone he could call up and ask.  That says to me he is not a real conservative.

I suppose there is one defense he can offer.  I have argued that he 1) doesn’t know anything at all about guns and 2) doesn’t know anyone who does and therefore, he isn’t a real conservative.  But I suppose it is possible that in fact he is 1) a real conservative 2) who doesn’t know anything at all about guns and 3) is too much of an arrogant prick to actually recognize he needs help and to ask for it.  So if he wants to plead “arrogant prick” that is his prerogative.

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* His real last name is Weiner.  I guess I can’t blame him for changing it.  Can you imagine how much less fun the Weinergate scandal would have been if it was Savagegate?

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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.