A Postscript

Thursday, 29 March 2012, 13:45 | Category : Racial Justice, Teachable Moments
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By Rev. Arnette L. Georges, Esq.

Rev. Copeland-Tune’s article, Hoodies, Skittles and a Plea for Justice, was complete in every respect, but I thought we could all benefit from a cursory legal analysis of the Trayvon Martin case, thus I offer this postscript.

I am not a parent, but I consider myself to be a guardian to every child that has been left in my care, whether it was during the Sunday school or Children’s Church hours at my local place of worship, in classrooms of higher learning, or in my living room as the children of friends or family came to visit. Thus, it is likely that I know the next Trayvon Martin; he may be my brother, nephew, cousin or even my father. The next Trayvon Martin is the next young Black man who will be murdered, assaulted, or detained not because he committed a crime or was engaging in gang activity, but simply because of the amount of melanin in his skin. Like Rev. Copeland-Tune, I am outraged that George Zimmerman remains a free man and that the Sanford police are hiding behind the cloak of the Stand Your Guard law [1]  to justify their decision not to arrest him. While Rev. Copeland-Tune has addressed the matter from the point-of-view of a mother and a concerned citizen, at the crux of this matter—the reason why we believe justice has not been served—is a legal issue. What is the scope of Florida’s Stand Your Ground law.

As a lawyer, I question whether Zimmerman’s use of deadly force was justified under Florida’s Stand Your Ground law? And, whether the Sanford police are, in fact, legally prohibited from arresting Mr. Zimmerman? In the aftermath of Trayvon Martin’s murder, many have called for the repeal of the Florida’s Stand Your Ground law. I am not convinced that the law needs to be repealed. I believe that it should be re-examined and perhaps amended.

Florida’s Stand Your Ground law was enacted in 2005, in the aftermath of several hurricanes where there was significant looting. The case under consideration at the time involved a property owner, acting in self-defense in his home; he shot and killed a perpetrator. Because this law did not exist, it took several months before a decision was made as to his innocence or guilt [2]. The law is an extension of the Castle Doctrine—we know that theory as a man’s home is his castle and he has a right to protect himself in it without fear of prosecution [3]. Since the Castle Doctrine is not a law, it only has persuasive value. Prior to the Stand Your Ground law, residents of Florida were required to retreat before using deadly force, unless they were in their homes. The Stand Your Ground law had the effect of extending one’s “castle” to include any place where a person has a right to be and of removing the requirement to retreat before using deadly force to prevent imminent death or great bodily harm [4]. Florida’s law was the first of its kind. Today, there are twenty other states that have similar laws, but none is as broad as Florida’s. The person who is covered under Florida’s Stand Your Ground law is justified in using deadly force, i.e. is immune from criminal prosecution and civil action, unless (1) the person against whom force was used is a law enforcement officer, acting in his or her official capacity, w ho identified himself or herself as such, or (2) the person using force knew or reasonably should have known that the person was a law enforcement officer. The law considers criminal prosecution to include arresting, detaining in custody, and charging or prosecuting the person employing deadly force.

I am of the opinion that Zimmerman is not entitled to the protections afforded by Florida’s Stand Your Ground law because his use of deadly force was not justified. The law provides that:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force [5].

Based on the language above, to be justified, the following factors must be present: the person seeking the protection of this law (a) must not have been engaged in an unlawful activity; and (b) must be responding to an aggressor’s use of force, i.e. meet force with force. And, such person is only permitted to use deadly force “if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” The law generally excludes from its coverage, a person who uses deadly force while committing or after committing a felony or a person who initially provokes the use of force against himself or someone else. This section of the law is captioned Home protection; use of deadly force; presumption of fear of death or great bodily harm, suggesting that it was intended to apply to dwelling places, even if that dwelling place is not the person’s actual home. It should not be read broadly, as it appears to have been done in this case, to apply to areas of public ingress and egress where Trayvon Martin had as much of a right to be as did Zimmerman.

I probably could be persuaded that Zimmerman’s use of deadly force was justified if this was simply a case of he said (Zimmerman) vs. he said (Trayvon Martin), where one of the parties is unavailable to give his side of the story because he is dead and the only available evidence was the report provided by Zimmerman. Although I would doubt the accuracy of that report, I would understand that based on the presumptions under the Stand Your Ground Law—that you have a right to defend yourself—law enforcement would be required to give Zimmerman the benefit of the doubt and afford him the immunity he currently enjoys. No doubt, under those facts, we would still be outraged, the traditional activists for social justice would have spoken out, but it is unlikely that the story would have made national news. Thankfully, there are other witnesses, although they were not eyewitnesses. There are the 911 calls, community members who heard both the cries for help and the gunshots, and the testimony of Trayvon Martin’s friend who was speaking to him on his cell phone at the time of the incident. The 911 calls establish that Zimmerman’s use of deadly force was not in response to an attack by Trayvon Martin. Zimmerman informed the 911 dispatcher that he was pursuing Trayvon. Zimmerman provides additional descriptive information, but importantly, he never said that Trayvon Martin was threatening or attacking him. As you listen to the 911 call, it appears that the only reason that Trayvon appears suspicious is because he is wearing a hoodie and is Black. In response to Zimmerman’s report, the 911 dispatcher advises him to stop following Trayvon. Trayvon Martin would be alive today if Zimmerman had only heeded the dispatcher’s instructions.

In addition to Zimmerman’s own call to 911, community members also called. They advised the dispatcher that they were hearing screams for help; in fact, those cries for help can be heard as you listen to the calls. The voice heard crying for help was not that of Zimmerman, it was the voice of a terrified young Black man, helpless and in an unfamiliar neighborhood, being pursued by a man who considers being Black to be suspicious. Who, it appears, has a penchant for calling 911 when he sees a Black person in his neighborhood. Finally, the police report [6,7]  indicates that Zimmerman’s shirt was wet and had grass on it and his face and the back of his head were bruised. In recent media accounts, Zimmerman is reported as stating that Trayvon Martin attacked him from the back, they engaged in a tussle of some sort and Trayvon Martin was on top of him when he shot Trayvon. Assuming for the moment that Zimmerman’s statements are true, at best they reflect a fist fight, during which Trayvon produced no weapons or did anything that would lead Zimmerman to develop a fear of imminent death or grave bodily harm. In my view, these facts are not sufficient to warrant the use of deadly force under Florida’s Stand Your Ground law—the use of deadly force must be necessary to prevent one’s death or great bodily harm. The Sanford police would l likely argue there were sufficient facts to invoke the protection of the Stand Your Ground law, based on Zimmerman’s statements and the fact that he needed and received medical attention before being taken to the police station, but to read the law that broadly would mean that anytime two people have a fight in public space, either of them has the right to pull a gun and end the other person’s life without fear of arrest or prosecution. That clearly could not be the intent of the law.

Florida’s Stand Your Ground law recognizes that there are some instances when the use of force is not justified. This law does not protect criminals nor, in most instances, first aggressors. The first aggressor provision has an exception. The first aggressor can get immunity if he or she can establish that his or her use of deadly force or infliction of great bodily harm was a last resort, i.e. the person seeking immunity had exhausted every reasonable means to escape the danger. In this case, the 911 tapes establish that in some respects, Zimmerman was the first aggressor. The law considers the first aggressor to be the one that first uses force. This provision should be amended to consider the first aggressor to be the person who initiated the circumstance that led to the violence—in this case Zimmerman’s decision to follow Trayvon Martin, despite the 911 dispatcher’s instructions to the contrary. If Zimmerman was deemed a first aggressor, the law would have required that he exhaust every reasonable means to escape the danger before brandishing and using his weapon. Alternatively, Section 776.041 of the law should be amended to exclude from immunity a person who employs deadly force in locations outside of the home, without attempting to use non-deadly sources to defend himself or herself, when a deadly weapon is not clearly visible. Some may argue, and rightfully so, that this amendment is not necessary because the law already provides that deadly force is not justified unless the person fears is that his or her death is imminent, which can never be the case if the aggressor is unarmed, but I think the amendment is needed to establish that fear of imminent death is not reasonable unless and until you see a deadly weapon.

Finally, although I am not a gun advocate, I am not opposed to Stand Your Ground laws. I admit that I would prefer that these laws simply mirror the Castle Doctrine, but I understand, given the ever-increasing levels of criminal activity in and around our homes, the need for the expansion to “any other place where he or she has a right to be”. A literal reading of the Florida’s Stand Your Ground law demonstrates that it was not intended to justify every use of force, including deadly force. Section 776.013 of the law limits the use of force to “meet force with force,” which I interpret to mean with the same measure it is inflicted upon you, you have the right to inflict force against your aggressor. It also employs a reasonableness standard—the person employing the deadly force must reasonably believe it is necessary to protect his or her life or prevent great bodily harm. Reasonableness will be determined by a totality of the circumstances. Section 776.013, titled Home Protection; Use of Deadly Force; Presumption of Fear of Death or Great Bodily Harm, uses the phrase “any other place where he or she has a right to be”, which I believe was intended to be applied only to dwelling places as the caption suggests. This is reinforced by the existence of the prior Section of the law (§776.012), titled Use of Force in Defense of Person, which would apply to all other cases, and which authorizes the use of non-deadly force and limits the use of deadly force to when one reasonably believes it is necessary to prevent imminent death or great bodily harm. Thus, if Florida’s law was applied correctly it would only grant immunity when the use of deadly force was clearly warranted. Under that interpretation, George Zimmerman would not have the benefit of immunity from arrest and prosecution.

In sum, Florida’s Stand Your Ground law was not intended to apply to situations where the person seeking immunity was the aggressor, even if the aggression was not violent (following Martin despite the 911 dispatcher’s instructions). The law was not intended to apply in situations where the victim posed no reasonable threat and did not threaten or harm the person seeking immunity. Here, section 776.013 is being read too broadly in order to grant Zimmerman rights he does not deserve—that section should only apply to dwelling spaces. Notwithstanding, regardless of which section of the law you apply to these facts, Zimmerman cannot claim that he feared imminent death or great bodily harm—Trayvon Martin was unarmed; the only things in his possession were a cell phone, a bottle of iced tea and a bag of skittles. He weighed significantly less than Mr. Zimmerman. He was on foot, while Zimmerman was in a vehicle. Trayvon ran to try to escape Zimmerman, but Zimmerman continued to pursue him. Trayvon cried for help, repeatedly, but no one was brave enough to come to his aid. Consequently, Zimmerman’s actions were not precipitated by an imminent fear of death or great bodily harm. Yet, the Florida police would like us to believe that the Stand Your Ground law precludes them from arresting George Zimmerman. I refuse to believe that.

[1] http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html

[2] http://www.nytimes.com/roomfordebate/2012/03/21/do-stand-your-ground-laws-encourage-vigilantes/the-law-is-needed-but-not-in-this-case .

[3] http://en.wikipedia.org/wiki/Castle_doctrine

[4] http://www.avvo.com/legal-guides/ugc/floridas-stand-your-ground-self-defense-law

[5] §776.013(3)

[6] http://www.sanfordfl.gov/investigation/docs/Twin%20Lakes%20Shooting%20Initial%20Report.pdf

[7] Interestingly enough, the officer making this report also admitted that when he arrived on the scene, having notice a boy faced down on the grass, he did not check to see if Trayvon Martin was alive—he was not one of the officers who participated in administering CPR.

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