צֶדֶק צֶדֶק תִּרְדּף לְמַעַן תִּחְיֶה וְיָרַשְׁתָּ אֶת־הָאָרֶץ
אֲשֶׁר־יהוה אֱלהֶיךָ נתֵן לָךְ
“Justice, justice shall you pursue, that you may thrive and occupy the land that the LORD your G-d is giving you.” (Deut 16:20)
Months ago, it became apparent to me that the state of Florida, the federal government and the media had begun a tyrannical scapegoating campaign against George Zimmerman. I knew that I was watching a modern day version of the Deryfus affair, or countless other scapegoating campaigns we Jews have suffered for centuries. Scapegoating in the Torah is the concept of projecting society’s sins upon the goat, then casting the goat away to symbolically wash away the sins. So what sins did society try to pawn off on Zimmerman? Deep down, those most outraged by the verdict must know that it is certainly possible that Trayvon Martin engaged in inappropriate violence against Zimmerman. Whether Martin was a violent young man or not, those outraged by the verdict are simply unwilling to accept responsibility for American society’s sin of producing violent young men, of all races, by our failing public schools, families, and other institutions we are all responsible for maintaining. It is so much easier to deny that a violent “gangsta” culture has infiltrated American youth, and blame George Zimmerman for the crisis. How many times did we see the media show the pictures of Trayvon Martin as a young child, but refuse to show the photos of him exhibiting behaviors advanced by the youth “gangsta” culture? That is simply unfair and unjust to George Zimmerman. No, George Zimmerman is not Jewish, but Hashem commands us to seek truth and justice for all. Although I have voiced criticism of star attorney Alan Dershowitz in the past on this blog, even he agrees that the government’s actions here were unjust. I made a modest donation to Zimmerman’s defense fund, and he was kind enough to send me personalized thank you note you see above.
The fiasco surrounding George Zimmerman’s shooting of Trayvon Martin has severely tried my patience with the media, and the public generally. In the mainstream media and social media, innumerable ignoramuses have blathered on about Florida’s self-defense statutes, plainly without any legal training whatsoever, and in many cases, without even bothering to read the laws. Despite being characterized as “complex,” Florida’s self-defense laws are simple and straightforward to those who bother to read them. There are some technical aspects regarding judicial procedure that lawyers may bicker over, but the general principles that citizens need to know are very straightforward. Here I try and help. To the intellectually honest who understand the law and objectively examine the facts, it will be obvious that the case against George Zimmerman was doomed from the beginning.
With respect to deadly force in defense of self, Florida statute 776.012 states that a person may use deadly force if that person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” Re-read that 10 times if necessary, and think about each and every word. Understanding that sentence is critical to understanding Florida law. Florida law is not “crazy,” to the contrary, it is sane, fair and just.
1. It is critical to understand that under Florida law, self-defenders are allowed to make reasonable mistakes. Florida law examines what the defendant could have reasonably believed at the time she used deadly force, not whether deadly force was reasonable had all the facts been known. This may seem odd at first, but after analysis it is clearly fair and just. For example, if someone pulls an unloaded gun on you in a threatening manner, in truth they are not a threat to you, but you cannot know that at the time. Suppose you shoot this person with the unloaded gun, using your loaded gun. In fact, you have made a very unfortunate mistake as to the reality of the threat. But, any sane person would agree that under those circumstances, the question is not whether your life was really in danger (it never was, remember–the gun was unloaded), instead, the question is whether you had a reasonable belief that death or great bodily harm was imminent. In other words, you are allowed to make a reasonable mistake. On the other hand, suppose a child points a clear plastic squirt gun at you. You can tell it is only a water pistol, but have some unreasonable belief that the squirt gun is filled with deadly acid. If you shoot the child, no matter how real the fear was to you subjectively, because the mistake was objectively unreasonable under the circumstances you would be acting unlawfully.
So for example, let’s consider the State’s allegations that after the fight, the wounds to the back of Zimmerman’s head did not look so bad, and a medical professional determined that he did not have a concussion. It does not matter that these wounds were not “serious bodily harm” after the fact. What matters is what Zimmerman reasonably believed at the time it was happening. Notwithstanding that the blows didn’t cause any permanent brain damage or death, I think it was reasonable for Zimmerman to fear that at the time, and the six members of the jury obviously agreed. I know the State tried to argue that the wounds were so light, that at the time Zimmerman was receiving them, he should have known they weren’t serious. I think that argument is ridiculous, and obviously the jurors did too.
2. It is critical to understand that a perception of an armed attacker is not a prerequisite to responding with deadly force. Nothing in Florida law states that a defendant’s reasonable belief of imminent death or great bodily harm needs to be based on the perceived use of a weapon by the attacker. Plenty of people have had their skulls bashed in, been strangled, paralyzed, and otherwise brutalized by nothing more than another person’s hands. People who keep repeating the mantra that “Trayvon only had a pack of Skittles” are being intellectually and morally dishonest. Bare hands can kill, and the real question is to ask exactly what Trayvon was doing with his hands. Far too many refuse to ask that simple question, and refuse to accept the fact that Martin was indeed engaged in violence with his hands.
2. Florida’s “Stand Your Ground” (SYG) probably had nothing to do with the verdict. (The so-called SYG law includes some procedural rules, but most Floridians understand it only as abrogation of the common law duty to retreat before responding with deadly force). Under the aforementioned statute, a person “does not have a duty to retreat” in the face of a reasonable belief that death or great bodily harm is imminent. This is repeated in 776.013(3). Under the old English common law, a person had a duty to “retreat to the wall” before defending with deadly force, i.e. exploit all reasonably possible means of escape. This may have sounded good in theory, but in practice the courts found it unworkable, and the second guessing by prosecutors and juries was incredibly unfair to citizens that had otherwise justly defended themselves. So Florida and some other States did away with the common law, and explicitly removed a duty to retreat. In most states, within your home you have no duty to retreat. Florida extends the doctrine to the public square.
Rather than debate the wisdom of SYG, consider that it likely had no bearing on the Zimmerman verdict. The evidence was clear that Martin had mounted Zimmerman, and thus, retreat was not reasonably possible for Zimmerman. In other words, even if you think SYG is a terrible law and Zimmerman should have been required to retreat, that is a moot point because Zimmerman couldn’t have retreated from under Martin even if he had tried. SYG was included in the jury instructions, so we’ll never know if the jurors agree with me on this point, but I strongly suspect they would, i.e. Zimmerman was trapped under Martin and couldn’t have retreated.
3. Zimmerman’s following or “profiling” of Martin is legally irrelevant. Frankly, I am baffled by the idea that somehow, because Zimmerman followed Martin or was concerned he might be a burglar, Zimmerman was not entitled to defend himself. Even for those that think Zimmerman started some kind of fist fight or shoving match, under Florida law Zimmerman was still entitled to defend himself. Specifically, 776.041(2)(a) states that even if Zimmerman “provokes” Martin’s use of force by following him, Zimmerman is entitled to defend himself with deadly force if he first tries to escape or defend himself by other means. Again, the facts show that retreat was impossible at the time Martin began causing Zimmerman to imminently fear for his life (banging his head into the concrete). So long as Zimmerman did not commit any actual forcible felonies (defined under 776.08) to provoke Martin, Zimmerman was entitled to defend himself. Shoving, restraining, or taking a single swing is at most, a misdemeanor. Following someone is not a crime at all (Florida does have a crime of stalking 784.048, but Zimmerman’s acts were unlikely stalking by definition, and one-time stalking is only a misdemeanor, and while aggravated stalking is a forcible felony, it occurs only in violation of a restraining order).
Thus, even if you somehow think Martin’s acts of violence towards Zimmerman were reasonable (albeit possibly mistaken under the circumstances) because Zimmerman somehow “provoked” Martin, unless Zimmerman actually committed a forcible felony in the first instance, Zimmerman was entitled to defend himself with deadly force from reasonably perceived deadly force from which he cannot retreat. Again, this makes sense to reasonable people. If a person starts a simple fistfight in a bar, she should, with few conditions, be allowed to use deadly force against the defender who responds by jumping on top of her and pulling out a knife. Even if you believe Zimmerman started a “scuffle,” to argue that once Martin escalated the violence and left Zimmerman no opportunity to retreat, Zimmerman should not have been allowed to take action to stop his fear of imminent death or serious bodily harm is unreasonable.
As far as I can tell, nobody who paid attention to the evidence seriously believes that Zimmerman committed a forcible felony to “provoke” Martin. However, it is not entirely clear to me why no instructions relating to 776.041(2)(a) were included in the jury instructions. Perhaps nobody thought of it, or perhaps the defense did not want to plant any seed with the jury that Zimmerman may have provoked Martin, despite the fact that the State seemed to go with that theory.
4. The initial decision by the local police force not to arrest Zimmerman. In most states, if you shoot someone in lawful self-defense, you will still be arrested nearly 100% of the time. Whether you will be later charged with murder is another story, but initial arrest is almost always certain. The police are not required to consider whether or not you acted in self-defense, and rarely will. In Florida, things are slightly different. 776.032 prohibits Florida police from arresting unless they believe they have probable cause that the shooting was not justifiable by self-defense. They can continue to investigate and gather evidence, but they cannot arrest until they have probable cause. ”Probable cause” is an elusive concept. There is Florida and federal case law discussing the concept at length, but I like to tell people that in layman’s terms it means “reasonably possible.” This is a very low standard, much lower than “beyond reasonable doubt” that is required to convict at trial. So technically, one could say the police should not have arrested Zimmerman until they believed it “reasonably possible” that his claim of self-defense was unsupported. After reviewing the evidence at trial, I believe this decision could have gone either way, and do not fault the Sanford police for their decision. There is no statutory bar against the State for simply bringing charges. However, defendants are entitled to an immunity hearing, which essentially tries the case in front of judge solely to first determine if it will ever go to a jury. Although it would seem that a defendant has nothing to lose by seeking such a hearing, there are complex strategical reasons why some defendants, like Zimmerman, might choose to forego the hearing. We’ll never know if Zimmerman’s defense team made the right choice by forgoing the immunity hearing, but it all worked out in the end.
5. The burden is always on the State to prove guild beyond a reasonable doubt, including that the shooting was not in self defense. An incredible number of Americans seem to refuse to acknowledge that our system functions on the principle that the State must prove its case to the exclusion of all reasonable doubt. This includes proving that Zimmerman’s self-defense claim is unreasonable (technically, a defendant must only make a prima facia case of self-defense, then the State must rebut it to the exclusion of all reasonable doubt). It is not enough that a juror thinks the defendant is probably guilty, rather, the juror’s perception must be that there are no reasonable doubts whatsoever. How any rational person could examine the actual evidence (not the lies and half-truths told by the media) and not have reasonable doubts (and in fact believe Zimmerman is innocent) is beyond me.
6. Potential for Federal case against Zimmerman
Yes, there are federal criminal laws against committing violence against someone solely based on their race. But the FBI investigation conducted at the outset of the case revealed Zimmerman was not racially motivated, nor was he a racist. The news outlet NBC is now the subject of a civil trial because they intentionally edited the 911 tapes to make Zimmerman appear racist. In fact, Zimmerman never used any racial slurs, instead he only identified Martin as black because the 911 operator specifically asked about Martin’s race. Frankly, I am shocked that the American public is not more outraged by NBC’s behavior. Nothing Eric Holder’s DOJ does surprises me, but bringing a federal case against Zimmerman would only make things worse the (misinformed) angry public, because Zimmerman would undoubtedly win that case.
7. Potential for Civil Case against Zimmerman
In theory, Martin’s parents could pursue a wrongful death claim under 768.16-26. The theory would be that Zimmerman was somehow negligent or reckless, and that negligence was the proximate cause of Martin’s death. However, not only would self-defense be a defense to that claim, Florida adopts the concept of comparative negligence, i.e. Martin could be found to also have been negligent (or reckless) and his percentage of negligence would reduce Zimmerman’s liability. But perhaps most importantly, 776.032 actually shifts attorneys fees to Zimmerman if he prevails in a self-defense claim. Normally, plaintiffs attorneys are eager to take wrongful death cases on contingency…they and the plaintiffs have nothing to lose, and would normally not have to pay a defendant’s attorneys fees regardless of the outcome. However, in this case if Martin’s parents lose their claim against Zimmerman, they could be obligated to pay Zimmerman’s attorneys fees! That might make them and any attorney think twice about bringing the case, given that the theory of the case has already failed in front of a jury of six mothers.
I hope this post sheds some light on the laws of Florida that affected the outcome of the case. It is important as Jews that we speak out against persecution of all kinds. Just because the mainstream media and the government have attacked George Zimmerman does not make him guilty in any way, shape, or form. Jews who know their history should know better. Baruch Hashem, George Zimmerman is finally on the path to the justice he deserves.