Trayvon Martin and the real issues it exposes

[badlydrawnjeff.livejournal.com]

Although I'm loathe to take up even more time on this story for all sorts of reasons, I've been trying to read up on this story over the last few days, and tripped up on this Slate piece. Before I dive into that piece, reading it crystallized what my struggle with this story has been up to this point. While there are a lot of problems with this case, the broader national problem is that this, frankly, local story has largely become an issue of people's top issues rather than one about the specifics of this case and the implications of it. The "anti-racists" have taken this up as the latest piece of evidence in their assertion that the US is highly racist, the anti-police people are using Martin as evidence of police corruption, gun control advocates are using this as evidence of a problem with the armed society, etc etc. This is one of those rare stories that, as it gains prominence, it becomes a mirror for whatever issue people care about the most, and thus becomes less about the facts of the case and more about confirming existing narratives. When a 911 call is released and an unintelligible phrase becomes a racial slur, we start seeing evidence become secondary.

The Slate piece linked above really, I believe, hits to the heart of the problems with this case in particular, and has actually really changed my mind quite a bit on the idea of stand your ground laws in the last few days. The article gives a very interesting history of the Castle Doctrine, which is the root of stand your ground laws, and how stand your ground laws have some basis in, surprisingly, domestic violence cases, specifically for wives who have just as much right as a husband under so-called castle doctrine laws:

Then in 1999, the Florida Supreme Court said a woman who shot and killed her husband during a violent fight at home could successfully call on the Castle Doctrine to argue self-defense. “It is now widely recognized that domestic violence attacks are often repeated over time, and escape from the home is rarely possible without the threat of great personal violence or death,” the court wrote.

Suk calls this revision of the true-man rule to encompass domestic violence transformative, and you can see why. The new rules made for more shooting and less retreating. And they set the stage for Florida to ditch the duty to retreat entirely, which the legislature did in passing the nation’s first Stand Your Ground law in 2005.

The idea behind a stand your ground law is incredibly sound - if you're going to be attacked, you have a right to defend yourself. If you fear for your life or worse, you have the right to stop that from happening. The law of unintended consequences, however, has reared its ugly head, and Trayvon Martin is the latest casualty in this affair:

Prosecutors opposed the Stand Your Ground law, and they still complain about it. "It is an abomination," former Broward County Prosecutor David Frankel told the Sun Sentinel in January. "The ultimate intent might be good, but in practice, people take the opportunity to shoot first and say later they had a justification. It almost gives them a free pass to shoot." The quote comes from a story about a former sheriff’s deputy, Maury Hernandez, who killed an unarmed homeless man in a Haagen-Dazs shop on a Saturday afternoon. Hernandez, who was with his children, said the man aggressively asked for money and then tried to assault him. Witnesses said Hernandez warned the man several times before taking out his gun and firing multiple times. The police said they wouldn’t charge Hernandez for the shooting because he claimed he was under attack.

The Slate piece ends with a quote from the Sun Sentinel that really ties all this together: "Out of six men killed and four more wounded in the cases, only one was armed. Some Orlando-area police agencies simply stopped investigating shootings involving self-defense claims and referred them directly to state prosecutors to decide."

Trayvon Martin may have been murdered in cold blood. George Zimmerman may be a horrible racist. The police might be among the most corrupt in Florida. We, unfortunately, lack the evidence to prove any of those thing true, and the way the stand your ground law in Florida is set up, we might never get any answers to the questions people have about them. I spend a lot of time talking about the government doing too much, the government being too strict - this appears to be one of the cases people always ask me for, where a government is being too lax. If a law is actively preventing state and local law enforcement from even making worthwhile calls on cases like this one, the law is bad and needs to be changed. Trayvon Martin is not special in this case, and that's what truly makes this case sad and unfortunate.

Edit: a_new_machine offers up the relevant text of the law: "c. 776.032: "A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force." Emphasis mine. That's pretty cut and dry as to why Zimmerman isn't really being touched and is a pretty key problem with this law. I get why it's vague in a sense - the entire idea is to put the burden of proof on prosecutors and the police. That doesn't mean it's working.

Comments

[underlankers.livejournal.com]

Actually there's plenty of evidence to show this, including the failures of the direct incompetence of the police department in the region, and Zimmerman being an over-aggressive wannabe who seemed to think the proper way to respond to what he assumed was a crime in progress was to go up and wave his gun in someone's face. But then the entire questioning of this has as a rule been in bad faith and one-sided. Nobody seems willing to criticize Zimmerman in terms of what he did, but there are invariably assumptions that a kid with a bag of skittles being mistaken for a criminal is a license to go shoot someone. That this is so raises a lot of troubling points that if I were a lesser man would lead me to the assumption that people really are either ignorant or outright malicious in terms of what they're thinking here. Namely that they think real life is like comic books and people can just go up and wave guns in someone else's face and it all ends well.

[underlankers.livejournal.com]

The bill's sponsors themselves said that the SYG doesn't apply here for Zimmerman in the first place:


http://www.nydailynews.com/news/national/trayvon-martin-case-sponsors-florida-stand-ground-law-george-zimmerman-arrested-article-1.1048164?localLinksEnabled=false (http://www.nydailynews.com/news/national/trayvon-martin-case-sponsors-florida-stand-ground-law-george-zimmerman-arrested-article-1.1048164?localLinksEnabled=false)

I'd expect this to make an impression but I'm realistic about the prospects of people on the Internet ever admitting they might be wrong on anything.

[paft.livejournal.com]

bdj: George Zimmerman may be a horrible racist... We, unfortunately, lack the evidence to prove any of those thing true...

What would you accept as evidence of George Zimmerman being a racist?

[sophia-sadek.livejournal.com]

Good question. Would say, following someone when told not to by a 911 operator qualify as evidence of sinister intent based on racial profiling?

[a-new-machine.livejournal.com]

I'd say him saying fuckin' coons (http://www.youtube.com/watch?v=vNI5CA5jijw) under his breath should probably qualify. Skip to 1:49 to hear it.

[badlydrawnjeff.livejournal.com]

I need something a little more concrete than what we've been getting here thus far.

[dwer.livejournal.com]

I'd be more inclined to consider this posted in good faith if you'd even suggest that there's at least a good reason to ARREST Zimmerman.

[badlydrawnjeff.livejournal.com]

From the looks of things, there is a good reason to arrest him if the current law for standing your ground didn't exist - as noted by a_new_machine, the law puts a lot of protection for the person who "stands their ground."

It appears that the law has created a culture in Florida in particular where such situations are not worth pursuing, which has become a significant problem.

[sandwichwarrior.livejournal.com]

You can't arrest someone who hasn't broken the law.

[a-new-machine.livejournal.com]

We, unfortunately, lack the evidence to prove any of those thing true, and the way the stand your ground law in Florida is set up, we might never get any answers to the questions people have about them.
This isn't the only thing wrong, but I agree on a closer reading that the way the law is set up, it definitely does tie the hands of law enforcement. From the bill, c. 776.032: "A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. . .As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant." This means that it isn't tested in court, it's determined by... who? The cops, I suppose. So that's one problem, but it's a minor structural flaw with the specific Florida law.

There's a bigger problem with any law that encourages people to use deadly force. These laws have restrictions that their intended users never grasp, and unfortunately they deputize people to take irrevocable action with no time for contemplation, and no real knowledge of the law. Here, there's a clause saying "stand your ground" doesn't apply if you provoke the threat on your person. Zimmerman probably never heard that - he heard the neat little tidbit, "Stand your ground!" and fired, even though he provoked the kid by following him. Could he be trusted to assess whether he had provoked the kid? Probably not. He apparently didn't think he was doing anything wrong by tailing him around and confronting him. And yet, thanks to SYG laws, he was given the power to decide these very important legal matters in a split-second, as the kid was retaliating.

Another example: Indiana allows homeowners to resist "unlawful searches" with (potentially deadly) force (http://www.theindychannel.com/news/30729402/detail.html). I spent an entire semester studying search law, and wrote a very detailed paper on digital search warrants, and I still couldn't tell you whether a given search was lawful or not without a fair amount of time to research similar situations. And yet, we expect a self-interested homeowner, likely one with no legal training whatsoever, to assess the situation after being presented with a warrant, correctly determine that the search was unlawful, and then we trust that snap decision with lethal power? Daniels said, when signing the law, "This law is not an invitation to use violence or force against law enforcement officers. In fact, it restricts when an individual can use force, specifically deadly force, on an officer, so don’t try anything. Chances are overwhelming you will be breaking the law and wind up in far worse trouble as a result.” The problem is, by the time these people are in trouble, someone is dead. That's irrevocable, and not the sort of power that a common citizen should have in split-second instants relying on their own, uneducated judgment about what is lawful or unlawful.

The fact is that people do much better when they know they have a legal recourse rather than a physical one. Nobody dies, for one thing (except maybe of boredom during a hearing). That's a big part of what the rule of law should be about. These laws are too soundbite-ized, too easy to mistake, to be trusted.

[badlydrawnjeff.livejournal.com]

This isn't the only thing wrong, but I agree on a closer reading that the way the law is set up, it definitely does tie the hands of law enforcement. From the bill, c. 776.032: "A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. . .As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant." This means that it isn't tested in court, it's determined by... who? The cops, I suppose. So that's one problem, but it's a minor structural flaw with the specific Florida law.

I'm adding this to the main post. That's even more stunning than I thought.

The fact is that people do much better when they know they have a legal recourse rather than a physical one. Nobody dies, for one thing (except maybe of boredom during a hearing). That's a big part of what the rule of law should be about. These laws are too soundbite-ized, too easy to mistake, to be trusted.

Agreed.

[paedraggaidin.livejournal.com]

"The fact is that people do much better when they know they have a legal recourse rather than a physical one. Nobody dies, for one thing (except maybe of boredom during a hearing). That's a big part of what the rule of law should be about. These laws are too soundbite-ized, too easy to mistake, to be trusted."

This, and the fact that so many of these sound-bite laws are drafted like many other hundreds, maybe thousands, of state statutes and local ordinances, i.e. pet projects of individual legislators and lobbying groups, pushed through during a high-stress, time-limited session where most of the chamber has bigger fish to fry, and prone to being good-sounding quick fixes to perceived problems, without much regard being paid to possible consequences down the line. Sex offender laws named after victims are a great example. I wonder how many folks who voted on the bill in 2005 actually read the thing first and considered it for more than a few minutes?

"Stand Your Ground" makes for great headlines and "tough on crime" rhetoric, but it's simply a terribly thought out and executed law. I am of course a pro-gun nut myself, but even I think a mobile Castle Doctrine is just asking for trouble.

[oportet.livejournal.com]

Why don't they just amend the law to where you can only claim self defense if the person approaches you, or if you're in the same place as them when they become threatening? Too easy, or am I missing something?

[underlankers.livejournal.com]

Yes, you are missing something: nobody in power will do something logical or sensible if they can help it.

[chron-job.livejournal.com]

I guess I haven't been reading the same sources, but most of the stuff I've seen on this case has been specifically about Stand your Ground laws and the problems they entail.

The point of the presumption of a 'responsibility to withdraw' always seemed obvious to me. If Self Defense inevitably becomes a he-said, he-said, where one of the He's is Dead, it becomes a license to kill. It's also license to engage in escalating activities, leading to a use of deadly force in a situation that might not have had it.

These unintended consequences shouldn't be any sort of surprise. They seem an obvious extrapolation. Those pushing for Stand Your Ground laws were doing the typical political move of looking tough and being manly, to get votes, and were simply in denial about the consequences.

[badlydrawnjeff.livejournal.com]

I guess I haven't been reading the same sources, but most of the stuff I've seen on this case has been specifically about Stand your Ground laws and the problems they entail.

I assume we haven't, but I have a lot of activist-liberal friends.

These unintended consequences shouldn't be any sort of surprise. They seem an obvious extrapolation. Those pushing for Stand Your Ground laws were doing the typical political move of looking tough and being manly, to get votes, and were simply in denial about the consequences.

This seems fair. I can't say I personally had considered these consequences either when previously vouching for these laws, though.

[nairiporter.livejournal.com]

Cut? :-))

[badlydrawnjeff.livejournal.com]

Grumble grumble.

[fizzyland.livejournal.com]

Obviously I have a problem with that law and to me, this situation illustrates the flaws of it. Compounded by Zimmerman ignoring the 911 operator's request not to follow Martin, ignoring it and then shooting Martin to death.

[kylinrouge.livejournal.com]

I'm a big supporter of Castle Doctrine and it's obvious that this law was written sloppily.

This looks like a job for the court. Legislators are too spineless to amend it, but the court can strike it down. There's plenty of reason to believe that the (almost deliberate) vagueness of the bill does not satisfy the conditions of 'clear and concise' text required for law-making.*

At the very least, then this person can be prosecuted to the full extent of the law. There's plenty of evidence to put him away even if it isn't necessarily murder one.

*This is just a guess. I'm not actually sure what would make it unconstitutional, or if it could be struck down with different reasons.

[a-new-machine.livejournal.com]

Castle doctrine and SYG are two different things. Paedraggaidin rather succinctly describes SYG as a mobile Castle doctrine.

[soliloquy76.livejournal.com]

The key here, I think, is that Zimmerman pursued Martin, not the other way around. The person initiating aggression was Zimmerman. If the "stand your ground" law doesn't address this, then it needs to be overturned. One should not be able to pursue, then kill someone, especially when the police told him not to pursue.

[muscadinegirl.livejournal.com]

That law reminds me of this:

Skip to 4:30

[chron-job.livejournal.com]

GREAT MOVIE!!!

My favorite line, while Canadian agents are kidnapping the main character...

"But you're CANADIAN!"

"Yeah, well maybe we're tired of being the Silent Partner in north America!"

[yes-justice.livejournal.com]

So, you are against shoot first laws?

He pursued the kid against 911's direct instructions and had a history of stalking his neighborhood armed. We had Zimmerman outweighing the kid by 80 pounds and a pack of Skittles versus a nine-millimeter gun - not exactly meeting force with force. Its difficult to consider it self-defense.

But that's the problem with a shoot first laws. The NRA loves it. But you basically have more cases of murder where its one word against a dead man who can't speak. The unusual thing here is that there is so much evidence implicating Zimmerman.

[badlydrawnjeff.livejournal.com]

He pursued the kid against 911's direct instructions and had a history of stalking his neighborhood armed. We had Zimmerman outweighing the kid by 80 pounds and a pack of Skittles versus a nine-millimeter gun - not exactly meeting force with force. Its difficult to consider it self-defense.

None of those things are at all relevant to the final point. You can be defending yourself even if you outweigh someone, or if 911 is failing to act in a way you'd prefer.

The unusual thing here is that there is so much evidence implicating Zimmerman.

This "evidence" you speak of is not as much as you think, or this would be rather open-and-shut.

[politikitty.livejournal.com]

It doesn't tie the hands of law enforcement, it doesn't even tie the hands of prosecutors. It merely means that due diligence could often result in a dismissal well before the case gets to a jury.

This is the case of law enforcement and prosecutors failing to do their job because they don't see the point in failing to prosecute someone. That's not the point of law enforcement. The point of law enforcement is to create an environment that minimizes violence because illegitimate violence will be prosecuted to the full extent of the law.

It is a somewhat understandable failure because the system does not reward thoroughness. It has limited resources, and metrics to determine the usefulness of those limited resources tend to under-value rigorous investigation into crimes where there is a possibility no-one is at fault. And perhaps there is little value in investigating every accidental shooting or self-defense case. But there is also a severe problem with letting society know that you can kill an unarmed black kid who has every right to be in a gated community without any investigation into the matter.

I am less concerned with the possible racist intent of George Zimmerman than I am the effect the dispassioned police investigation does for people who might seek to prey on victims like Treyvon Martin, and the irrevocable harm it does among people who identify with Treyvon Martin and feel less tied to the social contract as a result. We cannot govern without consent, and so that means that even if I want to be colorblind, I still need to understand the impact this has on racists who want a free pass to kill black people and black people who feel unprotected by our current statutes.

(and I've read the appropriate FL statutes. George Zimmerman doesn't come close to clearly meeting the definition necessary to guarantee criminal immunity. That line of defense should have been vigorously investigated.)

[a-new-machine.livejournal.com]

It doesn't tie the hands of law enforcement, it doesn't even tie the hands of prosecutors. It merely means that due diligence could often result in a dismissal well before the case gets to a jury.

Of course it does. The text of the law says that you can't even be arrested if your self-defense claim is good. This means that police have to determine the merit of your claim without one of the key tools of criminal investigation - custodial interrogation.

[blueduck37.livejournal.com]

Scenario!

A guy who looks like this (http://vinnykumar.files.wordpress.com/2010/04/l_d76b164058e4f6c8df4fb68fae61bbfd.jpg), a self-determined 'citizen watch' guy with a serial habit of paranoid 911 calls and a legally registered gun, sees a guy who looks like this (http://angrywhitedude.com/wp-content/uploads2/2011/07/white-male.jpg) walking down the street and feels scared and suspicious. The former begins following the latter, and-- as a 911 transcript reveals-- becomes more paranoid and frightened as this stalking continues. This scenario ends with the former shooting the latter dead with no proof of provocation other than his word.

In this scenario... are you still writing this post? In this scenario... do the police let the shooter walk free?

[badlydrawnjeff.livejournal.com]

In this scenario... are you still writing this post? In this scenario... do the police let the shooter walk free?

Yes.

EDIT: You know what? I'm changing this.

In this scenario... are you still writing this post?

No.

do the police let the shooter walk free?

Yes, the law hasn't changed in your scenario. I'm just not writing the post because there's little chance of me ever hearing about this case in your scenario.

[dexeron.livejournal.com]

I think part of the problem is a narrative that all gun "regulation" is a death-by-inches plot to overthrow the Second Amendment, so we end up with even sensible legislative actions being opposed knee-jerk without consideration to their actual content. Wasn't it just a week or two ago that there was debate on some SYG law in some state, and the comments in favor were almost universally in the "THEY WANT TO TAKE OUR GUNS AWAY" vein? Heck, the legisators were bringing up just these kinds of cases as reasons for their opposition to the SYG law, and the rhetoric was painting them like closet communists looking to outlaw all guns. It's as if the gun debate no longer allows for a middle ground where we can discuss when it's proper to USE them; it's either GUNS ARE OUTLAWED or ALL GUNS ALL THE TIME AND YOU MUST SHOOT EVERYONE YOU MEET.

Ok, that's hyperbole, of course, but you understand my point, I hope. The line between defense and offense is drawn is where the legitimate discussion to be, but too much of the opposition from the right today is boiling down to "ANY restriction on gun use is a violation of my Constitutional rights." It's reactionary knee-jerking against (sometimes legitmate) fears of left-wing anti-gun strategies, but it means that it's hard for the pro-gun crowd to approach this with a common sense eye because even something potentially sensible (like an arguement against SYG laws) is viewed as something reprehensible (the overturn of the Bill of Rights.) Which is a shame, because most folks anti-SYG seem to be very much in favor of Castle doctines and some of them understand the INTENT behind SYG. Still, we need to be willing to look at what works and what doesn't, and SYG is obviously deeply flawed.

[oslo.livejournal.com]

I don't have strong feelings one way or the other about so-called "stand your ground" laws. Honestly, I've always felt that the duty-to-flee rule at common law - with a carve-out for the homestead - has been a quaint archaism that doesn't track the efficacy of modern weaponry - or make much sense in the first place. I think "stand your ground" makes sense, and can be well-executed or poorly so; one just has to take care.

That said, I am extremely disappointed that you take a_new_machine's bare citation as revelatory and conclusive, even though it's not, when you went to great lengths in our previous discussion (http://talk-politics.livejournal.com/1385899.html?thread=110317739#t110317739) to avoid even speaking in terms of the relevant statutory or legal standards or to respond to my legal arguments, even while making insinuations about my competence and assiduously avoiding any request, by me, to show me the "more informed" interlocutor you claimed to prefer on these matters. It's the clearest example I've yet seen where you selectively draw on reality to support positions that are, ultimately, unimpeachable by rational argument.

[badlydrawnjeff.livejournal.com]

I've discussed with both of you. I know where you're coming from, I know where he is. Take that as you wish.

[devil-ad-vocate.livejournal.com]

Castle laws in the other states were better written than the Florida "shoot your Avon lady" law. Numerous Fl. legislators, law enforcement professionals, prosecutors and defense attorneys were against it. It passed anyway. The facts about this particular case are still in question; the fact that the law goes too far is not.