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Thursday, March 22, 2012

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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23 comments:

  1. >> 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.

    You had better read the Florida statutes again, buddy. If Zimmerman was the initial aggressor (whether it be a push, or shove), then 776.041 comes in to play.

    ***

    There IS a slim possibility that we all have this wrong -- and that Martin was indeed the aggressor and that Zimmerman was fighting for his life.

    But the circumstantial evidence, which -- if true -- really makes the above scanario unlikely.

    * Zimmerman was clearly stalking Martin, tracking him even after the police told him not to.

    * Zimmerman's suspicion of Martin was race-based. Even setting aside the possible "coon" epithet, the other 911 tapes show prejudice. Being a black kid with a hoodie isn't a crime.

    * Zimmerman had 80 pounds on Martin. Are we to believe that Martin somehow overtook a much bigger armed man?

    * If Zimmerman was the one on the 911 tape screaming for help, then his screams would have continued AFTER the gunshot (or at least overlapped a little), rather than being cut off abruptly BY the gunshot.

    Ultimately, I think it hangs on who is heard crying in the background (of the neighbor's 911 call) when the shot went off.

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  2. By the way, this Slate article raises the question that *I've* been thinking for a couple of days: "What If Trayson Martin Was The One Acting in Self-Defense?"

    Given the evidence, that seems a much more likely scenario. Or as the article suggests:

    "Trayvon saw someone following him, felt threatened, retreated,
    was still followed, and then was approached by an armed man who had 100 lbs on him. … Because Zimmerman was acting as an aggressor, Trayvon had the right to defend himself by punching, kicking, tackling, etc. Because Zimmerman was acting as the aggressor, his actions cannot be considered self-defense: you can't initiate and then claim self-defense. The evidence for initiation is there on the 911 tape. ... Why is it that a black man cannot be afraid of a white man who follows and approaches him on a street at night?"

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  3. Ken

    What you are doing is exactly the wrong thing. We weren’t there and all your tea leaves don’t amount to sh-t.

    > Zimmerman was clearly stalking Martin, tracking him even after the police told him not to.

    They didn’t tell him not to, they told him it was not necessary. http://www.sanfordfl.gov/investigation/docs/Zimmerman_Martin_shooting.pdf

    And he is allowed to follow him. That is the law.

    > the other 911 tapes show prejudice.

    Which ones? And with what words?

    > Zimmerman had 80 pounds on Martin. Are we to believe that Martin somehow overtook a much bigger armed man?

    What are you imagining? That Zimmerman was running away from him at top speed?

    And if you are, yes a lighter man 11 years younger probably could. Heavier people can be faster, but they can be slower, too.

    Somehow Zimmerman had cuts on the front and back of his head. Maybe Martin fought back and that is all, or maybe not.

    > If Zimmerman was the one on the 911 tape screaming for help, then his screams would have continued AFTER the gunshot (or at least overlapped a little), rather than being cut off abruptly BY the gunshot.

    Ah, the oliver stone school of logic, where you think that people react the second they are shot. *rolls eyes*

    This is exactly why we should not be turning this into a frickin national issue. Because people who don’t know and weren’t there can’t resist the urge to pretend to know. And it is sick for people to march and say “I am trayvon.”

    Somewhere out there, is a real human being named George Zimmerman and he is watching his reputation be absolutely trashed by people who don't have cause to do so. You just joined the ranks of those people, pretending you know who was right and who was wrong, when you have no cause for this.

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  4. I'm looking at this from a slightly different point of view. Let's completely forget about the possible racism angle for a moment. I want to see George Zimmerman prosecuted because (in my opinion, at least) he is a f***ing stupid jackass who can't or won't follow simple instructions. From what I've heard of the 911 recording of his call, the dispatcher asked Zimmerman if he was following Martin. When Zimmerman said that he was, the dispatcher told him not to do so.

    If Zimmerman had just followed instructions, Trayvon Martin would still be alive.

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  5. I don't know what happened here any more than y'all do. My view is that a firearm... especially one you take out in public... that is a massive responsibility. There are no excuses if you screw it up. If you accidentally shoot someone... if you shoot someone in anger... if you get into a road rage incident... if you get into incident where you could have used a little common sense and deescalated...

    Some folks do not agree. They go out and act braver. They see someone they have a problem with... they go ahead and follow them around and demand to know what they are up to.

    Zimmerman's gun can protect him and his property, but if he is investigating a suspicious person, he should not escalate that situation just because he has a gun. Zimmerman easily could have watched to see if the kid broke into a house and still just called the cops unless it looked like the kid was escaping. If Zimmerman had seen Martin put someone in harm's way, only then he could have intervened.

    I don't think folks carrying guns should behave like they don't have one and then just whip it out when a problem occurs. Just as they should avoid drinking, they should use a lot of common sense. An armed society is a polite society not just because of fear of the armed, but partly because armed and responsible adults are weighing the consequences.

    I'm glad people have a right to self defense, do not need to retreat, and can even fight to protect mere property. But as a gun carrying fella, I resent that this jackass didn't have the sense to back off the kid he was chasing around.

    And I'm not sure why the kid shouldn't defend himself. Does he had a duty to retreat from his stalker?

    ---

    "If Zimmerman was the one on the 911 tape screaming for help, then his screams would have continued AFTER the gunshot (or at least overlapped a little), rather than being cut off abruptly BY the gunshot."

    That is definitely how the reports make it sound, but I suppose if Zimmerman were screaming he would no longer need help after he shot the guy... it's possible he stopped shouting for help when he killed the kid.

    "Zimmerman had 80 pounds on Martin. Are we to believe that Martin somehow overtook a much bigger armed man?"

    Are these pounds of muscle or pounds of flab? These days ya never know.

    Anyhow, I wouldn't be surprised if Martin reacted to Zimmerman's aggression (that's how it would feel to me if I were in Martin's shoes) with some kind of force. In fact, I think he should have. If someone was stalking me like that, I would be thinking about it. One reason I wouldn't would be because I often carry a handgun and I know the most prudent thing to do is proactively avoid physical conflicts and their especially severe consequences when a gun is involved.

    However, it's striking to me how Martin's situation is exactly when a concealed handgun is so helpful, and Zimmerman's was exactly when the police are more helpful.

    Ultimately I guess I agree with Aaron that it's better for ten guilty to go free than for one innocent to be falsely convicted. So despite how bad this looks to me, if they cannot prove a case, then Zimmerman should go free. Even though I am already convinced on a moral level that he had a responsibility when he carried that gun, and he failed to a reckless extent that is totally responsible for this fight and this death.

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  6. Dustin

    In case i am not clear on this point, i think it is very likely that Trayvon Martin attacked Zimmerman... reasonably and legally. who knows what he thought with Zimmerman after him.

    It could just be a case of cascading miscalculations. Zimmerman (apparently wrongly) thought Martin was up to no good, so he followed him. Martin got creeped out by being followed so he attacked Zimmerman. As they fought, Zimmerman might have thought Martin was pulling out a guy or another deadly weapon and shot him. Nobody wanted any of this to happen, but there you go.

    Which is being wildly hypothetical and possibly wrong. But the law makes it very possible, and i really don't see another alternative.

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    Replies
    1. "i think it is very likely that Trayvon Martin attacked Zimmerman... reasonably and legally. who knows what he thought with Zimmerman after him.

      It could just be a case of cascading miscalculations."

      That's a good guess.

      "the law makes it very possible, and i really don't see another alternative."

      It's difficult to come up with something that doesn't offer some kind of problem. A stalking law?

      I think the fact they already enhance most of these crimes if you're carrying a deadly weapon is a good approach.

      I do think Zimmerman should have some kind of responsibility (a breach, a tort, a civil law issue) when carrying to reasonably avoid this situation. I'm not sure I can articulate a standard that makes this work with the limited information about this situation.

      Delete
  7. >> But the law makes it very possible, and i really don't see another alternative.

    I think why this case is drawing so much attention is not only what happened between these two people, but the law itself. It sets up a situation where a private citizen can kill someone in a situation where, if an on-duty police officer had done the same thing, he would have been suspended (at minimum).

    Most people have come to the conclusion that Zimmerman acted as judge, jury and executioner. And even if Aaron is correct that Zimmerman wasn't those things (or, we don't KNOW)... it still doesn't address the problem: a Florida state law which permits one person to transcend what the police and courts cannot do.

    One thing is for certain: Trayvon Martin was denied due process. That should be the starting point. If Zimmerman broke some law, then he is to blame, and the system works. If Zimmerman didn't break some law, then the law needs to be changed, so that these kinds of things don't happen.

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  8. By the way, I'll make a prediction so that when it happens, y'all can be impressed with me.

    Zimmerman kills himself.

    ReplyDelete
  9. Ken

    > One thing is for certain: Trayvon Martin was denied due process. That should be the starting point. If Zimmerman broke some law, then he is to blame, and the system works. If Zimmerman didn't break some law, then the law needs to be changed, so that these kinds of things don't happen.

    with all due respect, that is stupid. There is no such thing as a zero failure situation. So pointing at one tragic situation doesn't mean the law is bad.

    > Zimmerman kills himself.

    what the frak?

    Are you completely incapable of recognizing that somewhere in the world, there is a real person named George Zimmerman facing this lynch mob?

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  10. > So pointing at one tragic situation doesn't mean the law is bad.

    This "tragic situation" was predictable. In fact, when these self-defense laws were being debated in the Florida legislature in 2005, several local congresscritters pre-saged exactly what has happened. So don't doubt it won't happen again.

    > Are you completely incapable of recognizing that somewhere in the world, there is a real person named George Zimmerman facing this lynch mob?

    Well, he made his bed. Like Dustin says, he took on this responsibility. He could have let the police handle it. He had plenty of time to spare himself (not to mention Trayvon Martin) the consequences.

    I'm not advocating lynch mob justice (that would be contradictory). But I do think that the evidence that we know of so far comes down heavily against him, and if it gets worse, the pressure will be on him big time. And that's why I predict that he will save himself and the citizens of Florida a long and expensive trial.

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  11. Ken

    > This "tragic situation" was predictable.

    Yes, that’s what it means when you say that there can’t be a zero failure law.

    And its amazing that you are predicting a situation, given that YOU DON’T KNOW THE FACTS.

    But yes, it is utterly predictable that innocent people will get shot. Because the law of self defense goes by the reasonable perception of danger, rather than the reality of it. It recognizes that now and then people will be wrong. Duh.

    For instance, you say the no-retreat rule is responsible. Really? What if he couldn’t reasonably retreat anyway? What do you say then? If he reasonably thought the guy had a gun, then reasonably retreating is not very easy, now is it?

    > Well, he made his bed.

    Even if all he did, ultimately, was reasonably defend his life. Its amazing. You live right at ground zero for the Duke lacrosse clusterfark, and you learned nothing from it.

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  12. >> Yes, that’s what it means when you say that there can’t be a zero failure law.

    Well, you say it.

    And there have been other incidences in Florida since the passage of the new law (bar fights), that have escalated and resulted in death, and no culpability for anyone. The Florida laws invite this kind of thing -- it's bad social policy.

    >> And its amazing that you are predicting a situation, given that YOU DON’T KNOW THE FACTS.

    I acknowledge that I don't know ALL the facts. Most people don't WHEN IT COMES TO ALMOST ANY SITUATION, whether it be this or Fluke's sexual habits or whatever. Are you suggesting that opinions be silenced?

    Since when are you squeamish about a person offering an OPINION?

    >> For instance, you say the no-retreat rule is responsible. Really? What if he couldn’t reasonably retreat anyway? What do you say then? If he reasonably thought the guy had a gun, then reasonably retreating is not very easy, now is it?

    I say the no-retreat rule is irresponsible.

    And this is a bad case to hang your hat on, since Zimmerman had plenty of opportunities to retreat. Hell, he was "advised" to do that by trained 911 officers. He ADMITS that he lost track of Martin, and then kept looking, and found him again.

    If Zimmerman had reasonable probable cause to think that Martin was up to no good, he should have left the matter to PROFESSIONAL law enforcement personnel. They are trained so that this sort of things doesn't happen.

    >> Its amazing. You live right at ground zero for the Duke lacrosse clusterfark, and you learned nothing from it.

    Almost all the evidence in the Duke case was classic he said-she said. We know a lot more in this case. We have a lot more undisputed evidence (911 tapes, his testimony). No, it doesn't mean that we all "know" with 100% certainty what happened, but it doesn't mean that expressed opinions are total guesswork either.

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    1. "I say the no-retreat rule is irresponsible."

      This is just one bad case. There are so many good ones.

      The problem here is not precisely the no-retreat rule. The problem here is that Zimmerman did a lot more than not retreat. He basically created the whole damn altercation by stalking a kid while investigating whether he was a criminal.

      He was a jackass who easily could have done the watch effectively without running around yelling at kids because he had a gun to protect himself with if things went south.

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  13. > [me] Yes, that’s what it means when you say that there can’t be a zero failure law.

    > [you] Well, you say it.

    And you don’t?

    > And there have been other incidences in Florida since the passage of the new law (bar fights), that have escalated and resulted in death, and no culpability for anyone. The Florida laws invite this kind of thing -- it's bad social policy.

    Since the law has been passed, total homicides have gone down. More people have availed themselves of self-defense, but is that getting away with something or just… justice?

    > I acknowledge that I don't know ALL the facts.

    No, its more than that. You don’t know any of the crucial ones. For instance, was Trayvon’s wounds in the front or the back? Who swung first? You don’t know. But you act like you do.

    > Since when are you squeamish about a person offering an OPINION?

    When you don’t have a reasonable basis of information? Always.

    > since Zimmerman had plenty of opportunities to retreat.

    At the moment he was in danger? Because that is the relevant moment, see the case law.

    > Almost all the evidence in the Duke case was classic he said-she said.

    Are you joking? Right now we have “he said” situation. And that is about it. On all the crucial questions, we only have Zimmerman’s word. And you still think he probably wasn’t justified.

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  15. >> Since the law has been passed, total homicides have gone down.

    Homicides gone down *everywhere* since 2005, including states that don't have such a law.

    >> More people have availed themselves of self-defense, but is that getting away with something or just… justice?

    Good question, and it goes to my point about why the new law sucks. Under prior law, a claim of self-defense was something a JURY could consider at some point. Now, we just don't know.

    >> You don’t know any of the crucial ones. For instance, was Trayvon’s wounds in the front or the back? Who swung first? You don’t know.

    You seem to think that the "crucial" inquiry begins when the two came to blows. Those facts are important, but you completely ignore the FACT that prior to physical confrontation, ZIMMERMAN WAS STALKING MARTIN and acting as the aggressor/pursuer. That is relevant.

    >> [me]since Zimmerman had plenty of opportunities to retreat.

    >> [you] At the moment he was in danger? Because that is the relevant moment, see the case law.

    Sure. If Zimmerman believed that Martin was a criminal of some sort, then Zimmerman must have believed that Martin posed a danger of some sort, at least potentially. Zimmerman pursued the danger (as he saw it) when he could have "retreated".

    >> Right now we have “he said” situation. And that is about it. On all the crucial questions, we only have Zimmerman’s word.

    Actually, even on what you call the "crucial questions", Zimmerman is contradicted by Martin's friend, who was on the phone with Martin and heard the beginning of the confrontation.

    >> And you still think he probably wasn’t justified.

    Even taking Zimmerman at his word, you have no evidence of ANY criminality committed by Martin. None.

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  16. Ken

    What the hell is wrong with you?

    You are an attorney. You are supposed to believe in due process. You should be appalled by what is happening, the leaping to conclusions, the hopeless contamination of the jury pool. There are two groups that are publicly calling for this man’s lynching, including the head of the Nation of Islam. Instead you are drawing unwarranted conclusions that feed that kind of sentiment.

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  17. >> You are an attorney. You are supposed to believe in due process. You should be appalled by what is happening, the leaping to conclusions, the hopeless contamination of the jury pool.

    It is *because* I believe in due process that I *am* appalled at what is happening.

    Even in a light most favorable to Zimmerman, Trayvon Martin committed no crime (even if Martin attacked Zimmerman, he was entitled to do that under Florida law's stupid self-defense laws). Yet he lies dead.

    YOU'RE the one who doesn't seem to care about due process with your "oh, well, an innocent person dies" attitude and your embrace of a state law that allows armed citizens to deny the life, liberty and happiness of others WITHOUT DUE PROCESS.

    Or does "due process" only apply to SOME people and not others? Zimmerman will get his day in court for whatever crimes he might have committed, if any. That's more than can be said for Martin. So please don't get on a pedestal over the subject of due process.

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  18. Ken

    That’s ignorant.

    First, why is it that only Trayvon Martin gets due process and not George Zimmerman? Due process means you don't prejudge either man. i didn't. you did.

    Second, the law in all 50 states says that your right of self-defense does not depend on whether you are actually in danger but rather that you reasonably believe yourself to be in danger. That means that it inherently builds into that system a possibility of innocent men getting killed, okay? So that “due process” violation is always going to occur now and then. And no, it is not the case that every single one of those claims of self-defense should go to trial--not unless they have evidence refuting it and a reasonable chance of victory.

    Do you want to abolish that rule? Do you want to say that if you are ever wrong about the danger but defend yourself, you go to prison? To say to people that they cannot defend their lives until they are 100% certain the danger is real, by which time it might be too late to defend themselves?

    What this is really about is your ideological belief that no one should ever use force except the state. Well, I am sorry, but that is not realistic. You cannot expect another person to risk their lives for that ideal, period. Indeed outside of military conscription, I don’t believe the government should ever demand that a person put their lives in danger. That is why for instance, I do think that the constitution allows for a right to abort a fetus if the woman’s life is in danger—because otherwise that would be a deprivation of life without due process. And likewise, I think you have a constitutional right to defend your own life against any reasonably apprehended danger.

    The fact is that the state cannot always protect people. Women with abusive husbands know this, and you should too. When seconds count the police are minutes away.

    I would love to live in a world in which the only people who ever die deserve it. But we do not and never will live in that world. Accidents will happen, even ones in which no one is at fault. Be a grown up and live with it.

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  19. >> First, why is it that only Trayvon Martin gets due process and not George Zimmerman?

    Wow, is your head on backwards. Trayvon Martin DOESN'T get due process. He NEVER will get it. That's the POINT.

    If Zimmerman hadn't stalked him and confronted Martin, then Martin would not only be alive, but he could have whatever due process was needed for whatever he supposedly did.

    >> Do you want to abolish that rule?

    Yes. Florida's rule, that is.

    >> Do you want to say that if you are ever wrong about the danger but defend yourself, you go to prison?

    Not "wrong" necessarily, but "unreasonable" AND not retreating when you could -- yes, in that instance, you should go to jail.

    >> To say to people that they cannot defend their lives until they are 100% certain the danger is real, by which time it might be too late to defend themselves?

    I'm saying if they invite the danger by, say, stalking someone that YOU believe is a threat, and then confronting that threat, then you can't avail themselves of the self-defense rule.

    >> What this is really about is your ideological belief that no one should ever use force except the state.

    Except that's not my belief. I'm not opposed to self-defense, but it should only be permitted (and exculpatory) in the most limited of circumstances.

    Why?

    Because people are wrong! People are ginned up to follow their pre-conceived notions. A black kid with a hoodie -- he's a menace, a danger to the neighborhood, he must be stopped. Except.... that's not true all the time, or even most of the time.

    This incident proves this.

    >> And likewise, I think you have a constitutional right to defend your own life against any reasonably apprehended danger.

    Not a danger you created of your own free will! I realize there is a lot of dispute about the meaning of the Second Amendment, but even conservatives agree that our forefathers didn't intend it to be used so that we could pick fights with teenagers, and then shoot them when we are losing.

    But...okay, so let's play in your ballpark for a while.

    Suppose no arrest or indictment is handed down, and Zimmerman remains a free man. According to your rationale, a black person, upon seeing Zimmerman could just gun him down in the street. Why? Because Zimmerman reasonably represents a danger to that black person's life. (Maybe that black person is WRONG, but it's a reasonable conclusion).

    Is that the world you want to live in?

    >> The fact is that the state cannot always protect people.

    But your alternative is to throw the baby out with the bathwater. The state can't ALWAYS protect people, so let's go back to the uncivilized days of the OK Corral? Shoot first, ask questions later? That's simply not civilized. I know you conservatives like things "the old way", but that's going back a little TOO far, don't you think? Whatever happened to the law-and-order conservative?

    >> I would love to live in a world in which the only people who ever die deserve it. But we do not and never will live in that world. Accidents will happen, even ones in which no one is at fault.

    Oh, is that what happened? This was an "accident"? If so, I know damn well how it could have been avoided.

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    1. Wow. All kinds of sentence construction problems there. Try instead:

      "I'm saying if you invite the danger by, say, stalking someone that YOU believe is a threat, and then confronting that threat, you can't avail yourself of the self-defense rule."

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  20. Ken

    > Trayvon Martin DOESN'T get due process.

    Fair enough, I said it badly. Let me try to say it better.

    Why is it that you want to compound the lack of DP for Martin by violating Zimmerman’s right to due process?

    > Yes. Florida's rule, that is.

    Its not florida’s rule, it’s the rule in every state that you may defend yourself from reasonably perceived threats. So you want a person to lay down their lives. And then send them to prison when they are not willing to do that.

    I think that is idiotic.

    > Not "wrong" necessarily, but "unreasonable" AND not retreating when you could -- yes, in that instance, you should go to jail.

    So if you don’t act as in your mind a coward would, send the man to prison?

    > I'm saying if they invite the danger by, say, stalking someone that YOU believe is a threat, and then confronting that threat

    You don’t even know that happened.

    > A black kid with a hoodie -- he's a menace, a danger to the neighborhood, he must be stopped.

    And the police don’t get those ideas in their head?

    > This incident proves this.

    It only proves it if the guy is guilty. If the shooting was righteous it proves nothing.

    > Not a danger you created of your own free will!

    Unless the danger is presented by a fetus, right?

    > I realize there is a lot of dispute about the meaning of the Second Amendment, but even conservatives agree that our forefathers didn't intend it to be used so that we could pick fights with teenagers, and then shoot them when we are losing.

    Wow, you are just digging in deeper and deeper. Seriously, you do realize that Zimmerman could sue you for defamation based on what you said.

    > According to your rationale, a black person, upon seeing Zimmerman could just gun him down in the street.

    Not at all. Not unless Zimmerman did something threatening.

    > The state can't ALWAYS protect people, so let's go back to the uncivilized days of the OK Corral?

    Well, in fact back then do you know how many murders occurred in Tombstone Arizona in its bloodiest year?

    Three. http://www.cracked.com/article_18487_6-ridiculous-history-myths-you-probably-think-are-true.html

    > That's simply not civilized.

    Well, then you can be a civilized corpse.

    > Oh, is that what happened? This was an "accident"?

    That is Zimmerman’s version of events, and guess what? You don’t have the evidence to refute it.

    Again, what's wrong with you, jumping to conclusions about this man?

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