I don’t know why exactly, but Trayvon Martin’s death hit a nerve in me the minute I read the story. Maybe it’s because I have a teenaged son who leaves my house in a hoodie nearly every day — something I never thought twice about until now. Maybe it’s because it immediately seemed irrational to me that someone could confess to taking another human’s life when that human was simply walking down the street and not be arrested right then. I mean, for Pete’s sake, wasn’t the woman who threw flour on Kim Kardashian at least arrested?!
Whatever the reason, the nerve the initial story struck was rubbed raw the past few weeks by the irresponsible media in this country. What’s worse is that the leaders on both sides of this controversy are doing nothing to quell the hysteria. George Zimmerman’s overzealous reaction to Trayvon’s presence in a neighborhood in which Trayvon belonged started this mess, and the media, local and national leaders are role modeling the same behavior. Sanford city officials took the proverbial cake. Responding to an organization offering a bounty for George Zimmerman’s capture (which is itself deplorable), city officials said:
Attempts by civilians to take any person into custody may result in criminal charges or unnecessary violence.
Yep, that kind of irony ought to calm people right down, no?
Of course, these are the dangers of trying cases in the court of public opinion. Misinformation abounds. This victimizes Trayvon Martin and his family all over again. It makes a martyr of a murderer. It causes folks rightly outraged by these events to direct their anger at all the wrong people and issues.
George Zimmerman should have been arrested and charged after shooting Trayvon, because the Sanford police had probable cause to arrest Zimmerman, and it was never clear and still is not clear that the immunity provided by Florida Statutes sections 776.012 and 776.032 applied to Zimmerman’s actions. Here’s why:
First, we all have a right under the Fourth Amendment of the United States Constitution to be free from unlawful searches and seizures of our person or possessions. For the seizure of a person to be lawful, it must be based on “probable cause.” Under both federal and Florida law, probable cause to arrest someone exists when arrest would be the “objectively reasonable” response given the “totality of circumstances.” (Lee v. Ferraro (11th Cir. 2002) 284 F.3d 1188, 1195.) An arrest is “objectively reasonable” if the arresting officer is aware of “facts and circumstances … of which he or she has reasonably trustworthy information [and which] would cause a prudent person to believe … that the suspect has committed, is committing or is about to commit an offense.” (Ibid.) That information must support more than a suspicion of wrongdoing, but it doesn’t need to be convincing proof. (Ibid.) Arguable probable cause (which is all that is required to insulate an officer against a claim for wrongful arrest) exists so long as reasonable police officers, possessed of the same information, could believe probable cause to arrest exists. (Ibid.)
Here, George Zimmerman confessed to the officers on scene to shooting Trayvon Martin. There is not a court anywhere that would find an officer arresting George Zimmerman after that confession acted unreasonably under the circumstances, because the police had information that reasonable allowed for the possibility thatGeorge Zimmerman committed murder. (See, Florida Statutes sections 782.04, subd. (2) and 782.07 (definitions of second degree murder and manslaughter).)
Florida Statutes section 776.012 provides:
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonable believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or to another or to prevent the commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to section 776.013.
Additionally, section 776.032 provides:
(1) A person who uses the force permitted in section 776.012 … is justified in using such force and is immune from criminal prosecution … for use of such force … As used in this subsection, the term ‘criminal prosecution’ includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.
In combination, these two statutes compel a police officer to determine whether the person acting in self-defense is immune from arrest. (See also, Velasquez v. State (Fla. 4th DCA 2009) 9 So.3d 22, 24, abrogated on other grounds in Dennis v. State (Fla. 2010) 51 So.3d 456.) In making this determination, the arresting officer(s) may reject a suspect’s self-defense claim where the suspect’s use of deadly force against the victim is the product of an “impulsive overreaction” to the victim’s attack precipitating the use of deadly force. (Dorsey v. State (Fla. 4th DCA 2011) 74 So.3d 521, 524.)
The law requires the arresting officer to sign an affidavit stating that there was probable cause to believe that George Zimmerman’s use of force was unlawful. Florida law also says that the use of deadly force as an impulsive overreaction to a victim’s attack is not lawful. While George Zimmerman’s story is that he acted in self-defense, there is at least equally plausible (and arguably more convincing) evidence that he did not but instead shot Trayvon because a confrontation Zimmerman sought out and started got out of his control. An officer’s job in making the probable cause determination is to act on more than a hunch, but it is not to be convinced of the guilt or innocence of the suspect.
The facts give officers more than a hunch that George Zimmerman was not acting in self-defense. And, while there may not exist a quantum of evidence that would lead a reasonable officer to be convinced that Zimmerman was acting in self-defense, there is certainly enough evidence to make it reasonable to conclude otherwise. In other words, there is no clear answer; this means a jury of Zimmerman’s peers should resolve the question.
George Zimmerman called 911 on February 26 and reported seeing a male that “looks up to no good” and appeared to be “on drugs or something.” As Zimmerman follows Trayvon, he relates to the 911 dispatcher that it is raining, that Trayvon is wearing a hoodie and that he’s got his “hand in his waistband.” He also tells the dispatcher that Trayvon is staring at him and “coming to check [Zimmerman] out.” Zimmerman states that Trayvon has “something in his hand.” He then states to the dispatcher, “These assholes, they always get away.”
Pausing here for a minute, let’s look at this dialogue from two different perspectives. Perhaps Zimmerman is accurately relating what he sees happening. There is a degree to which this makes sense. First, Trayvon was wearing the clothing described. Second, Trayvon was carrying a can of iced tea; in the dark this may not have been readily discernible. Third, Trayvon was on his cell phone during a fair portion of this incident, and it is entirely plausible that Trayvon reached into his waistband for his phone but all Zimmerman could see was the movement. These things, taken together and put into the context of Zimmerman’s palpable concern about prior neighborhood incidents, may have allowed Zimmerman (and others) to believe he was witnessing suspicious activity.
But, it is equally plausible that all Zimmerman really sees is a teenaged boy, wearing his hood up because it’s raining but walking slowly because he’s on the phone, having a conversation. It is equally plausible that Trayvon is staring at Zimmerman or “checking out” Zimmerman because Zimmerman is clearly following Trayvon. If the neighborhood is as plagued by suspicious activity as Zimmerman asserts, Trayvon is now rightfully worried about his own safety, because who is this random guy rolling up on him in the dark? It is equally plausible that Zimmerman is projecting his own behavior onto Trayvon. After all, Zimmerman himself carries his firearm in his waistband. (See link to Sanford Police Department incident report, below.) And, the defining moment comes with Zimmerman’s statement, “These assholes, they always get away.” Zimmerman has already concluded Trayvon is trouble, Zimmerman is clearly frustrated, and it is reasonable to infer that Zimmerman was looking for a different outcome this time.
About a minute into the conversation with the dispatcher, Zimmerman tells the dispatcher, “Shit, he’s running …” In the background, you can hear a car door shut and the audio strongly suggests that Zimmerman is now out of his car and on foot. In fact, the audio changes prompt the dispatcher to ask Zimmerman, “Are you following him?” Zimmerman replies, “Yeah,” and the dispatcher says, “Okay. We don’t need you to do that.” Zimmerman seems to acknowledge this directive, and he tells the dispatcher that Trayvon “ran.” But in the ensuing conversation, Zimmerman evades repeated requests to provide the dispatcher a fixed location at which responding officers can meet Zimmerman. Instead, Zimmerman asks, “Could you have them call me, and I’ll tell them where I’m at?”
I know that, during this exchange, there is an intense debate about whether Zimmerman uttered a racial slur under his breath. The issue is not entirely irrelevant, but even without a clear answer on that, Zimmerman is communicating an intent to pursue Trayvon. If Zimmerman followed the dispatcher’s direction not to pursue Trayvon, Zimmerman should have agreed to meet the responding officers either at the clubhouse or Zimmerman’s home. His unwillingness to do so evidences his intent to continue pursuing Trayvon. Perhaps Zimmerman simply wants to keep eyes on Trayvon to guard against the commission of an offense or provide responding officers accurate location information. But, it is equally likely (and given the outcome, far more plausible) that Zimmerman intended to apprehend Trayvon.
In fact, what happens next is an altercation between Zimmerman and Trayvon. Trayvon’s girlfriend reports hearing Trayvon asking someone (purportedly Zimmerman), “Why are you following me?” Someone (purportedly Zimmerman) asks Trayvon, “What are you doing around here?” The girlfriend then hears what she describes as pushing before the call goes dead. There is no witness to who started the physical contact. Noticeably absent from the Sanford Police Department incident report is any statement from Zimmerman regarding who touched who first. But what is clear is that there would have been no altercation, no physical contact, had Zimmerman not pursued Trayvon. What is also clear is that Trayvon was approached by an unknown man who inexplicably followed Trayvon for some time, in a neighborhood with known criminal activity. What is known is that being followed made Trayvon uncomfortable. What is known is that it was dark, and at some point, Trayvon felt the need to run and lose Zimmerman. What is known is that Trayvon was unarmed, carrying a cell phone, a bag of Skittles and a can or bottle of iced tea. Given the circumstances, the better analysis leads to the conclusion that Trayvon was acting in self-defense.
So, let’s assume for a moment that Trayvon made the first physical contact with Zimmerman. Was Zimmerman then confronted with “unlawful force” as required to justify Zimmerman’s response with deadly force?
The Sanford officers focused on these pieces of evidence: (1) Zimmerman lawfully possessed the firearm used to shoot Trayvon; (2) Zimmerman had grass on his back, a cut to the back of his head and a bloody nose; (3) Zimmerman claims he shouted for help; and (4) at least one witness purportedly saw Trayvon on top of Zimmerman. But, none these facts taken individually or in totality establish that it would have been “irresponsible” to arrest or charge Zimmerman.
Zimmerman’s lawful possession of the semi-automatic handgun used to shoot Trayvon means only that Zimmerman wasn’t guilty of the crime of carrying a concealed firearm without permit. A license to carry a concealed weapon is not a license to use it. This fact is irrelevant to resolving the self defense question.
The grass on Zimmerman’s back, the cut on his head and the bloody nose may be evidence that Zimmerman and Trayvon fought, but it is not evidence that Zimmerman was facing imminent death or great bodily harm. Florida law defines “great bodily harm” as harm that is more than slight or even moderate. (Smith v. State (Fla. 1st DCA 2007) 969 So.2d 452, 455, quoting C.A.C. v. State (Fla. 2d DCA 2000) 771 So.2d 1261, 1262.) Grass on Zimmerman’s back is not evidence of injury. A head cut and bloody nose treated in the back of a patrol car are not necessarily evidence of great bodily injury, particularly where there is an apparent failure to compare the nature and extent of Zimmerman’s injuries to Trayvon’s (aside from the obviously fatal GSW).
Zimmerman’s injuries support the notion that Trayvon got the better of Zimmerman during a fight, as does the fact that Trayvon’s body was found lying face down with his arms underneath him. However, that evidence does not change other essential facts: (1) the altercation began with Zimmerman stalking Trayvon, (2) Trayvon tried to evade Zimmerman before engaging with him, (3) Zimmerman had no authority to detain or apprehend Trayvon and trying to do so was itself unlawful, (4) Trayvon did not possess any item legally cognizable as a weapon capable of inflicting deadly force, and (5) Trayvon assaulted Zimmerman (if at all) out of fear for his own safety.
Zimmerman’s claim that he shouted for help is hotly disputed. Some witnesses believe that the voice they heard shouting for help was Trayvon’s; others do not. The only other witness truly in a position to dispute Zimmerman’s account is dead. Yet, even assuming Trayvon eventually got the upper hand in the fight Zimmerman started, Zimmerman’s shout for help isn’t material to the issue of whether Zimmerman was in imminent danger of great bodily injury or death.
This unfortunate collision between the Florida Stand Your Ground law and the lack of clear guidance for law enforcement agencies charged with enforcing that law was predictable. The United States Court of Appeals for the Eleventh Circuit noted as much in its unpublished decision in Reagan v. Mallory. We cannot ask our officers to make decisions of this magnitude based on incomplete knowledge and with a lack of guidance on how to balance probable cause determinations against what appears to be a “right” to immunity from arrest. Section 766.032 itself recognizes the inherent limitations in such a construct by allowing the determination to be made over the life of an investigation. (See, e.g., Velasquez, supra, 9 So.3d at 24.)
So, here is where I end up. Does George Zimmerman have a colorable self-defense claim? Yes. Although I don’t believe it would be successful – either on a motion pursuant to Florida Rules of Criminal Procedure, rule 3.190, subdivision (c)(4) or at trial – there is at least enough for the question to go to a trier of fact. And, the question of whether George Zimmerman’s use of deadly force here was reasonable is a question of fact. It has been a question of fact since the night of Trayvon’s Martin’s tragic death, and it remains a question of fact today. (See, e.g., Garramone v. State (Fla. 4th DCA 1994) 636 So.2d 869; Albuguergue v. State (Fla. 4th DCA 1997) 700 So.2d 464.)
Right now, there is better evidence that Zimmerman acted impulsively than out of any reasonable belief that Zimmerman was in imminent danger of death or great bodily injury at Trayvon’s hands.
But, the only way that question will ever be answered is if George Zimmerman is arrested, charged and tried in a forum that allows as complete as possible a picture of events to emerge without the color and spin a social, political, personal or economic agenda might add. And that needs to happen now — not just for Trayvon, not just for Trayvon’s family, not just for the community of Sanford and the broader community of people affected by this tragedy — but for George Zimmerman, who may not be in jail but is certainly now in the prison of public perception.
The Sanford police got it wrong — legally and factually. And we are right to be angry at the Sanford police for making a snap judgment about whether Zimmerman’s acts were justified. We are right to be angry at George Zimmerman for impulsively reacting to Trayvon. But, I hope that we are better as a people than Zimmerman and the Sanford police. Let’s act instead of react. Because, that’s what justice for Trayvon really means.