On the Zimmerman Case Verdict . . .

 Charles W. Collier

 

            I have discussed the Zimmerman case at some length in “The Death of Gun Control: An American Tragedy,” 40 Critical Inquiry (forthcoming 2014); available in advance of print publication as Critical Inquiry Web Exclusive at:

http://criticalinquiry.uchicago.edu/the_death_of_gun_control_an_american_tragedy

            Obviously I discuss the Zimmerman case most specifically in Part 2.  But I would also point to the discussion in Part 4, where I go into the broader historical background of what I call “a radical and expansive American philosophy of freedom that dates back at least to the early nineteenth century.”  If you look at the Bill Bell cases I discuss in note 58, you begin to see what a departure this was from the English background to our law, and specifically from the English doctrine of the “duty to retreat”:

          In 1885, for example, the highest court in Texas overturned a second-degree murder conviction in a self-defense case–not because the jury had been told the defendant had a duty to retreat, but because the jury had not been told the defendant did not have a duty to retreat:

            [T]he defendant, if unlawfully attacked by the deceased, was not bound to retreat in order to avoid the necessity of killing him. . . .  [T]he law of this State does not require retreat under any circumstances.

          Even more remarkably, when the case was retried, that same court overturned a manslaughter conviction because the jury had not specifically been instructed that the “reasonableness” of self-defense “must be determined by what might have appeared reasonable to the defendant at the time of the homicide, and not by subsequent developments as laid before the jury in the shape of evidence.”

 

This is where “Stand Your Ground” came from!  The contemporary sources I find most helpful in understanding this departure from English law are Dimsdale, Turner, and Tocqueville, as in notes 60 and 99.  Essentially (they are saying) you cannot expect the rugged frontiersman–literally, out to conquer a new world–to have the placid temperament of an Illinois corn farmer.

            As for the Zimmerman case verdict, “I told you so” (Part 2):

 

            Trayvon Martin’s killer, a certain George Zimmerman, displays more than his share of grandiosity, narcissism, and racism.  But he has other things on his mind, too.  In the United States ca. 2012, on a dark and stormy night in Florida, there is no reason to presume that Martin is unarmed.  It is not obvious.  In fact, the opposite presumption may be more accurate:  that Martin is armed.  (In Florida, the local inhabitants increasingly settle their arguments over girlfriends in bars and children’s basketball games with heavy weaponry.)  That is precisely why news accounts made a point of emphasizing that, in this case, the presumption was rebutted:  As it turned out, Martin was, in fact, unarmed.

            But Zimmerman does not know this yet.  He worries out loud over the phone to the police dispatcher:

            [T]here’s a real suspicious guy . . . .  This guy looks like he’s up to no good, or he’s on drugs or something.  It’s raining and he’s just walking around, looking about. . . .

            Now he’s just staring at me. . . .

            [N]ow he’s coming towards me. . . .

            He’s got his hand in his waistband.  And he’s a black male. . . .

            Yup, he’s coming to check me out, he’s got something in his hands.

But even if Martin has a gun, so too does Zimmerman.  Under Florida’s “Stand Your Ground” law, if Zimmerman feels threatened he can shoot first (which he does) and ask questions later.  (It is, after all, a dark and stormy night.)  He is “justified in the use of deadly force and does not have a duty to retreat” in his home, in a vehicle, or indeed in “any other place where he . . . has a right to be.”  (Deadly force may be used if he “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . . or to prevent the imminent commission of a forcible felony.”)  In a society in which anyone and everyone may have a gun, Zimmerman certainly doesn’t want Martin to shoot first–nor does the law require him to take that chance.  With ever more guns in circulation, it becomes ever more “reasonable” to suspect (or fear) that someone else has one–and to shoot first!

. . . because a man cannot tell, when he seeth men proceed against him by violence, whether they intend his death or not.

In this Hobbesian “war of all against all,” “there is no way for any man to secure himselfe, so reasonable, as Anticipation;” thus, it may be “reasonable” to attack one’s neighbor preemptively, if self-defense might later be inadequate for self-preservation.  Here is fertile ground for miscalculation; the criminal law and the law of large numbers work together to ensure that such miscalculations are many, regular, and predictable.  (And, under Florida law, they may be justifiable or excusable too; Zimmerman was so worried about guns that he went back to Martin’s lifeless body, and moved it–“to check for weapons.”)

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July 16, 2013 · 11:14 am

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