REVISED: If you read this article before April 11, 2012, you may want to read it again as it has been edited to resolve some lack of clarity in the original.Most readers know the salient facts: On February 26, 2012, while returning from an errand to a local convenience store, Trayvon Martin, a 6' 3" 140 lb., 17-year-old Florida high school student nicknamed “Slim” was found shot and killed, in Sanford, Fla., a community north of Orlando.
Several eyewitnesses reported to police that they heard a scuffle, then a cry for help, and then a gunshot. According to news reports the Sanford police report states that George Zimmerman, 28 year old neighborhood watch captain (and self-anointed judge, jury and executioner) was found armed with a handgun, standing over Martin. Zimmerman is a buffed Latino who stands 5' 9" and weighs-in at 240 lbs. It’s reported that he shot and killed Trayvon with concealed black Kel Tec 9 mm PF9 semi-automatic hand gun which holds 8 rounds ready for rapid fire. The semi-automatic pistol chambered for the 9MM Luger cartridge was developed with maximum concealability in mind and is touted as the lightest and flattest 9MM ever made.Zimmerman claims Trayvon “broke” his nose (police just stated he had a bloody nose) and caused wounds to the back of his head. Martin, unresponsive, was pronounced dead at the scene. He was unarmed and in possession of no more than pack of Skittles, a bottle of iced tea, and a cell phone. The nation has broken to justifiable outrage.
Zimmerman claims he killed Martin in self defense and is shielded from liability under Florida's "Stand your Ground" law . The police took him at his word, did not arrest him, failed to administer drug or alcohol tests, and further failed to run a background check. He was apparently well-known to local law enforcement as an “habitual” caller to cops who called the police 46 times since Jan. 1, 2011Understand this: unlike those who blame this law, I defend it as against Zimmerman and a vindication of Trayvon Martin at least under the facts we have thus far. That is, Zimmerman’s perceived shield may well be Trayvon’s best sword.
Reading the mandates and provisos of Florida’s SYG law I have seen no facts suggesting Zimmerman can assert this defense. Indeed, every necessary element of this defense is missing as to Zimmerman. Moreover, there is reason to suspect the authorities may have caused the destruction or spoilation of evidence.I make no attempt to practice law here. This is purely an academic exercise in reading comprehension skills for it’s hard to imagine anyone could read this law and conclude it’s a sound defense for Zimmerman. The facts required to support a presumption of justified deadly force are, thus far, absent on Zimmerman’s side. Conversely, the facts do suggest Trayvon was the only one who could reasonably presume he was in danger of great bodily harm or death. This makes the failure to arrest even more troubling.
The three essential elements of a credible opinion are the law, and the facts supported by credible evidence.Like it or not George Zimmerman, has a ‘fundamental’ right to a presumption of innocence so, unless we admit to prejudice or bigotry, cooler heads should prevail. Yes, like Charles M. Blow, writing in the New York Times we all ask “was the boy with the candy accorded the same presumption of innocence as the man with the gun?” His answer is “there is no right in aligning yourself with wrong.” So we should be circumspect and not rush to judgment until all evidence is presented and all facts revealed in a court of law. As as the evidence is presented many of us may change our opinions.
But here is the problem: the law is easy enough to understand here and certain facts are virtually admitted or beyond refute.The Florida legislature knew how to draft a statute and it’s easy enough for reasonable people to compare the known facts to the law. Reading the statute’s plain language it appears doubtful Zimmerman can hide behind this defense. Given the facts we do know the only one who had a right to stand his ground and use deadly force was none other than Trayvon Martin.
Zimmerman can, and presumably will, say whatever he wants in his own self-interest; but so far we haven’t seen any facts supporting his defense as this law requires. If you think his being bloodied and bruised will suffice then you haven’t read the statute or considered the facts very well. Mr. Zimmerman is in deep-shit trouble and we can rightly worry he possess a threat to society. Given the facts shown just by the 911 tapes it’s an outrage that Zimmerman walks free.But caveat: if you seek truth then beware the media and point-scoring politicians or agenda pushing preacher/activists who shout fire in crowded theaters . This tragedy is a perfect teaching opportunity but the media has done little else but fuel legal ignorance, confuse apples with oranges, pour napalm over presumptive guilt or float spurious defenses. For instance the media coverage of police using of stop and frisk laws in places like New York is irrelevant spin as far as this case goes since Zimmerman is not a law enforcement officer acting under color of law but a wannabe cop and a vigilante allegedly (perhaps admittedly) out to get the “fucking coons.”
Many people also compare the impending trail to the Casey Anthony case and wonder if Zimmerman or Trayvon can get a fair trial. First of all, Trayvon Martin is not in trial. Zimmerman will be. Remember, Casey Anthony did get a fair trial despite the hysteria fueled by the tabloid press. We all have our opinions but that fact is that our cherished opinions are based solely on the repetitious sound bites and reports from the media circus. In fact twelve reasonable people sat for weeks and examined mountains of evidence, listened to hundreds of hours of testimony, and could not concluded Casey was the killer. This case is different, we know who the killer is. The only question is whether his defense will stick. Indeed, does this defense really only belong to Trayvon Martin?The prosecution, of course, always has the burden of proof. But it seems to me, as a practical matter, the defense will have to produce credible evidence, specific facts, supporting Zimmerman’s claim of self-defense as this particular statute requires. It appears Zimmerman is entitled to no legal presumptions of justified deadly force.
Exactly what does the plain language of this statute require? We must begin there. Any fact-finder (a jury) is duty-bound to apply the law to those facts. One fact can completely turn a case around and utterly destroy a defense. This is why we must be circumspect about any ‘facts’ the media spoon-feeds us. It’s classic hearsay, inherently untrustworthy, and too often just mere hysterical gossip and totally irrelevant. We should be especially suspicious of journalists who, under the guise of objectivity, spoon-feed softball leading questions to biased vigilante friends of the accused and provide them a national forum to peddle self-serving disingenuous defenses. For these reasons the only critical facts I rely on are those admitted to by Zimmerman and corroborated by the 911 tapes or other trustworthy sources.In this case the absence of critical facts is the most damning for both Zimmerman and law enforcement since neither have stated even one of the many facts necessary to assert Florida’s SYG law. Yes, that’s right. Neither Zimmerman nor law enforcement have asserted even one fact that can support Zimmerman’s defense under this law. Not one.
As the evidence comes to light please read this law and then ask whether the facts support the defense as to Zimmerman or Trayvon. Remember, the law cuts both ways. Facts may well prove it was Zimmerman who was engaged in illegal activity and that only Travon had a right to defend against deadly force. Looking at the facts and admissions thus far it appears that Zimmerman had no right to use any force at all let alone deadly force against Trayvon Martin. By both words and acts Zimmerman has arguably damaged his own defense and may have already impeached himself.Florida's "Stand your Ground" law which authorizes “justifiable use of force” is easy enough to comprehend but first understand common law and how we even got here.
At common law we all have a right to use deadly force in self-defense if we have a reasonable belief we are in imminent danger of death or great bodily harm. That applies to defense of ourselves and the defense of others. Deadly force does not apply to defense of property. It only applies if our back is to the wall so-to-speak. Public policy requires civilized people abjure violence, that we back away and retreat to safer ground, so as to preserve life rather than take it. All these ‘stand your ground’ statutes do is abrogate that common law principal by permitting us to stand our ground, to not retreat, and to use deadly force but only where we could reasonably believe failing to do so is likely to result in death or great bodily harm.These SYG laws do not allow us to, ourselves, create that danger, to go out armed and looking for trouble, to create trouble, and then assert a specious defense. Nor are we allowed to presume our mere subjective suspicion is evidence of imminent unlawful activity. Nor does the law permit us to give chase. Most of all we can not create or fabricate the very danger we claim to defend against. On the facts we have been given thus far George Zimmerman will have a hard time sustaining the defense. Still, we don’t have all the facts and the presumption of innocence is the ‘fundamental’ right of every suspect.
This law is simple enough and this legislature knew how to draft a statute. As a threshold matter there are a number of elements anyone must show to assert this defense. If those elements are missing the defense can fall like a house of cards.First, Zimmerman must show that he was engaged in lawful conduct and that he was, in fact, just standing his ground and merely refusing to retreat. Yes, he was licensed to carry a concealed gun but the Neighborhood Watch rules do not authorize carrying a gun. Moreover, is was arguably unlawful for Zimmerman to disobey the 911 police directive to not chase Trayvon. It’s fair to think the officer was referring to this law for the use of force to prevent escape can only be used by “A law enforcement officer or other person who has an arrested person in his or her custody .... [if s/he] reasonably believes to be necessary to prevent the escape. Obviously Zimmerman is not law enforcement officer and Trayvon was not under arrest or in custody. Most important, former Florida Governor Jeb Bush, who signed the legislation into law, stated the obvious when he said,
“Stand your ground means stand your ground. It doesn’t mean chase after somebody who’s turned their back.”When Zimmerman got out of his truck and took after Travon it was Zimmerman who was arguably the illegal aggressor and only Trayvon who had the right to self-defend. On that fact alone it’s hard to see how Zimmerman can assert this statutory defense.
Deadly v. Non-Deadly Force.Non-Deadly Force:
Second, this statute distinguishes between deadly and non-deadly Force. Even non-deadly force can only be used “in defense of others” where you reasonably believe it’s necessary to prevent or terminate a trespass on, or other tortious or criminal interference with, either real property (other than a dwelling) or personal property, lawfully your possession or in the possession of another who is a member of your immediate family or household or of a person whose property you have legal duty to protect.There are no facts yet suggesting Trayvon was engaged in any criminal interference as defined by this statute. Ergo even non-deadly force does not appear justified on these facts.
As she pointed out on Democracy Now, Natalie Jackson, attorney for Trayvon Martin’s family, “Trayvon had a right to be where he was.” We have not one fact suggesting he was engaged in any illegal activity as specifically required under this statute. Obviously if one can’t justify non-deadly force one can’t justify deadly force.
Deadly Force:A person is only justified in the use of deadly force and has no duty to retreat if s/he reasonably believes that such force is justified to prevent imminent death or great bodily harm to themselves or another or to prevent the imminent commission of a forcible felony.
(A forcible felony is defined here as “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”)Presuming, purely for sake of argument, Zimmerman was just standing his ground (and it’s apparent he wasn’t) there are only two situations where it’s presumed he held “a reasonable fear of imminent peril of death or great bodily harm.” No facts suggest either of those presumptions exist.
First, Trayvon had to be “in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or he had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.Notice the common law preference for preserving life here and not mere property. We can fairly presume a dwelling or residence is occupied. And even if Trayvon was reaching into the open window of a car or a convertible with the top down that would not suffice unless the vehicle was “occupied.” Absolutely no facts even suggest this prong is satisfied.
Second, Zimmerman had to know or have reason to believe that an “unlawful and forcible entry” or “unlawful and forcible act was occurring or had occurred.” Absolutely no evidence of that here either. In Zimmerman’s own words Trayvon was just walking around and ‘looked suspicious.”A “person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony.
“Imminent” does not mean a reasonable suspicion (we don’t even have that much here). Imminent means an impending, menacingly close at hand, threat, a certainty, that Trayvon was engaged in “imminent use of unlawful force.” Zimmerman’s mere self-serving assertions will not suffice. It’s facts that matter. And the tapes sure don’t sound like a man just standing his ground and refusing to retreat in the face of "imminent use of unlawful force." Far from it.We have been given absolutely no facts suggesting Zimmerman could reasonably believe Trayvon’s behavior suggested “imminent commission of a forcible felony.” No facts suggest Zimmerman is entitled to any statutory presumption warranting deadly or even non-deadly force. Under the facts as we know them, the statute grants no presumption in Zimmerman’s favor. Absent those facts the presumptions fall away and, arguably, the burden of proof shifts to the defense to this regards. Arguably.
But it seems even worse for Zimmerman. Even if he can show he was just standing his ground the presumptions justifying deadly force arguably do not apply if Zimmerman was himself engaged in an unlawful activity. Is it legal for a heavily armed 240 lb man to get out of his truck and confront a skinny 140 child with a right to be there and who was engaged in no illegal? To even ask the question seems to answer it.Nor, according to the statutory language, are theses justifications available if Zimmerman initially provoked the use of force against himself unless he both (a) reasonably believed Trayvon posed an imminent danger of great bodily harm and (b) that Zimmerman “exhausted every reasonable means to escape such danger than use deadly force.”
I am not going to address every angle of this defense for that’s the lawyers’ job. I am only pointing out the more obvious factual problems that stand in the way of this defense.Obviously, Trayvon had no duty to retreat if he had a right to be where he was; however it seems wise for a skinny kid to back away from a 240 lb gorilla advancing on him in the night. Moreover, since Trayvon was exhibiting none of the behavior suggested by the statute and Zimmerman was arguably the only aggressor engaged in the imminent commission of a forcible felony (such as “murder; manslaughter; aggravated assault; aggravated battery; [or] aggravated stalking) it again seems Trayvon and only Trayvon had the legal right to use deadly force against Zimmerman. This is Trayvon’s defense too remember. Equal protection under the law!
Thus far we have no facts suggesting Trayvon was engaged in ‘imminent unlawful force’. He posed a danger to no one - especially 240 lb gorilla with a gun who was admittedly chasing him. Indeed, Zimmerman’s own 911 tapes admit that Trayvon was doing nothing more than “walking about” and “looking around... just staring” then “coming towards” Zimmerman with “his hand in his waistband.” He could just be reaching for this cell phone. This is not a reasonable belief the lad was engaged in a felony or ‘imminent unlawful force'. Far from it. Indeed, Zimmerman’s own taped statements seem to prove otherwise. But then Trayvon walked away from Zimmerman who was clearly not standing his ground.
Again, the law cuts both ways. The 140 lb Trayvon did not have a duty to retreat if he had a right to be where he was; but he did back away at the aggressive advance of the 240 lb Zimmerman. What sensible skinny kid wouldn’t? Zimmerman had no right to even approach Trayvon. He only had the right to watch. So far is appears the only one engaged in unlawful activity was Zimmerman and the only one who had the right to stand his ground in self-defense to meet force with force was none other than Trayvon Martin.As to any harm Zimmerman may have suffered he arguably has no defense at all. He forfeited his claim to self-defense the moment he became the aggressor packing a semi-automatic weapon and chased down a skinny defenseless skinny kid. On these facts it’s not reasonable to suggest that Trayvon Martin was wrong to fight back. Again, this defense belongs to Trayvon for he was the only one standing his ground and allowed to resort to deadly force as a last resort.
So was George Zimmerman a racist bully packing a concealed gun and donning vigilante authority so as to stalk in the night as self-anointed watchdog? What facts might support that?Was this all just a subterfuge to go out with a gun and get the "fucking coons" under the pretext of self defense? What facts and evidence support that?
And then there are federal concerns of a hate crime. It has been reported that Zimmerman was fired from his job as a security guard because the was too aggressive and it’s also reported he was a frequent caller to 911. If we see a pattern of singling out blacks that may suffice to draw a reasonable conclusion of racism. We shall see. One fact and one instance of conduct are not enough. We need more. For all we know he may be an equal opportunity megalomaniac.Aside from the law there is the other, perhaps bigger, question of law enforcement. Was the fact of Trayvon’s being black the real reason why the authorities failed to investigate and take Zimmerman into custody which would have required a drug test and background check? We shall see about that too. We must wait for more facts.
Could Zimmerman have reasonably believed 17-year-old Trayvon Martin was engaged in imminent illegal force? What facts support that?Could he have reasonably believed Martin posed a serious threat of serious bodily harm or death? What facts support that?
As you can see, when we look at the plain language of the statute and apply it to the alleged facts, Zimmerman’s statutory defense just can’t pass muster. Under the facts we have (and we must always question them) the defense falls like a flimsy house of cards. The bitter irony is that the statue may not Zimmerman’s defense but his indictment. The law as bed-sheet? So far it appears to be a sleazy subterfuge for racially motivated hate crime. Without more facts the defense appears to be pig-sty beneath a dull, racist, facade.The presumption of innocence may be easy to defeat here but for now that presumption must stand. Zimmerman is presumed innocent until proven guilty and we can hope justice will be done at least as far as the law can achieve it.
Thus far we have not been shown any evidence that George Zimmerman acted within the bounds of the plain language of this law. Indeed, there appears to be evidence he did not act in justifiable self-defense, that he created the very danger he complains of, that he was not just standing his ground, and that he willfully used his vigilantly watchdog status as a bald pretext to pack a concealed gun and go out to perpetuate a racially motivated hate crime against a defenseless child armed only with a pack of Skittles and a bottle of iced tea.I do not say he’s guilty I only say there seems to be probable cause to believe he committed a crime, that he is a grave danger to the community, and that he should be arrested and held without bail until such time he faces a jury of his peers.
Finally, needless to say, criminal liability aside, the owners and managers of this gated community are at risk of devastating civil liability. Think the property values are suffering now? Just wait.If George Zimmerman is found guilty of homicide ‘beyond a reasonable doubt’ the lesser civil standard of a preponderance of the evidence is automatically met and Zimmerman would be civilly liable. The only triable issue of fact would be the amount of damages. Keep in mind there is no insurance coverage for intentional acts (one is only insured for negligence).
However he is arguably the agent of the complex and all it’s owners and managers may be held liable for gross negligence by allowing an untrained but deadly armed vigilante to patrol the premises. They may all be held civilly liable to the Martin family. If it drives all the property owners and managers into bankruptcy that may be the further just reward and no housing complex will ever take such outlandish risks again. Suffice to say, a lot of people may be paying a huge price for George Zimmerman’s bad acts if a jury rejects his defense.Francois Arouete
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