Never confuse law with justice. Courts apply law. Societies breed justice. Sometimes what is legal is also morally right, but sometimes it is not. The verdict of the Zimmerman trial is one such example. George Zimmerman’s acquittal is entirely consistent with our system of law. However, the fact that an adult man can racially profile and kill an unarmed boy who was minding his own business and get away with it is completely repugnant to our sense of justice.
I plan to answer two questions: How did we get here? And what can we do about it?
The Duty to Retreat
A long-standing principle of English and American common law is that before one is legally allowed to use deadly force against an assailant, that person has a “duty to retreat” first. This duty makes sense in a society that values human life and seeks to avoid lethal combat.
Since the early nineteenth century however, American law has recognized one exception to the duty to retreat—when one is threatened by an intruder in one’s own home. Called the “castle doctrine”, the reasoning behind it is that your home is your castle, and to desert it would be to surrender to your adversary.[^1] There are no empirical studies about the impact of castle doctrine laws[^2] but its egalitarian nature and narrow scope make intuitive sense. The “castle doctrine” exists in 46 states.[^3]
Until 2005, Florida reflected this legal paradigm. Under Florida common law, there was a “duty to retreat” requiring “a person acting in self-defense outside his or her home or workplace” to employ “every reasonable means to avoid the danger, including retreat, prior to using deadly force.”[^4]
Stand Your Ground
Enter ALEC. ALEC stands for the American Legislative Exchange Counsel, and is a corporate-funded network that drafts and lobbies for conservative legislation. In 2005, ALEC wrote, and, along with the NRA, successfully lobbied for Florida’s (Republican) state legislature to pass the nation’s first “stand your ground” law. This statute took the legally unprecedented step of extending the “castle doctrine” from one’s home to wherever someone was lawfully entitled to be. The statute vitiated the common law duty to retreat if a person reasonably believed that deadly force was necessary. The text of section the Florida’s stand your ground law, section 776.013(3), is as follows (my emphasis is in bold):
“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, including 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.”
By extending castle doctrine to the streets and abolishing the duty to retreat, stand your ground provides an outlandishly expansive protection for people to legally kill others and claim self defense. However, the law, combined with the rules of criminal procedure, makes that protection even greater.
Under American law, our rules of criminal procedure err on the side of innocence. As the famous Jurist William Blackstone said: “It is better that ten guilty persons escape than that one innocent suffer.” Criminal law, unlike civil law, also deprives people of their freedom, and so our legal system imposes the highest standard of proof upon the State before a jury can convict someone. Procedurally, these values are expressed in two key rules that may strike someone as counter-intuitive, but are bedrock principles of the American criminal justice system.
The first rule is the presumption of innocence. When raising an affirmative self-defense, it is presumed that the defendant’s claim is true. The State then has the burden to disprove his or her claim. The exact level of that burden is the second pillar of our criminal justice system, proof “beyond a reasonable doubt.” This is the highest burden of proof in American law. A reasonable doubt does not mean a “hypothetically conceivable” doubt, but if a juror has a conviction which is not stable but wavers at all, then he or she must acquit. This formulation warrants restating because of its immense procedural importance. If there is any reasonable doubt as to the truth of the State’s claim, then the jury must acquit.
George Zimmerman’s attorney, Mark O’Mara, did not invoke the stand your ground defense, which would have actually granted Zimmerman a pre-trial immunity hearing, allowing the judge alone to clear him of the murder charge.[^5] However, the actual jury instructions articulate section 776.013(3) (stand your ground) and do not alert the jury of a duty to retreat before using deadly force.[^6] This is precisely because of 2005’s stand your ground law, and why reports that the Zimmerman trial is not about stand your ground law are wrong.
Armed with this legal and procedural background, we are finally prepared to evaluate the case just as the jurors did. These are the actual jury instructions that were presented to the jury, with my annotations in bold:
“Justifiable use of deadly force
An issue in this case is whether George Zimmerman acted in self-defense. It is a defense to the crime of Second Degree Murder, and the lesser included offense of Manslaughter, if the death of Trayvon Martin resulted from the justifiable use of deadly force.
“Deadly force” means force likely to cause death or great bodily harm.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.
In deciding whether George Zimmerman was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, George Zimmerman must have actually believed that the danger was real. (this is the “reasonable person” standard)
If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony. (this is stand your ground, 776.013(3))
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of George Zimmerman and Trayvon Martin.
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty.
However, if from the evidence you are convinced beyond a reasonable doubt that George Zimmerman was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.
Plea of not guilty; reasonable doubt; and burden of proof
George Zimmerman has entered a plea of not guilty. This means you must presume or believe George Zimmerman is innocent. The presumption stays with George Zimmerman as to each material allegation in the Information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.
To overcome George Zimmerman’s presumption of innocence, the State has the burden of proving the crime with which George Zimmerman is charged was committed and George Zimmerman is the person who committed the crime.
George Zimmerman is not required to present evidence or prove anything.
Whenever the words “reasonable doubt” are used you must consider the following:
A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find George Zimmerman not guilty because the doubt is reasonable.
It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.
A reasonable doubt as to the guilt of George Zimmerman may arise from the evidence, conflict in the evidence, or the lack of evidence.
If you have a reasonable doubt, you should find George Zimmerman not guilty. If you have no reasonable doubt, you should find George Zimmerman guilty.”
To summarize, the precise legal question before the six jurors was: whether the State had proved beyond a reasonable doubt that George Zimmerman did not reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself. Put another way, if there was any reasonable doubt at all that George Zimmerman did not reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself, then the jury must acquit.
Formulated this way, you can see how high the legal bar was. And why, with (1) Zimmerman’s broken nose and cuts on his head, (2) the limited and conflicting eyewitness and ear-witness testimony about what happened on that dark and rainy night, (3) the inconsistency of star witness Rachel Jeantel, and (4) the fact that the police chief sided with Zimmerman, there was ample basis for the jury to conclude that it was not beyond a reasonable doubt that George Zimmerman reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm to himself. And, given the precise formulation of the legal question, as dictated by the statute’s text and our criminal law’s procedural requirements, the jury’s decision to acquit was not only entirely reasonable, but legally correct.
Here’s a statement from juror B37:
“There was a couple of them in there that wanted to find him guilty of something and after hours and hours and hours of deliberating over the law, and reading it over and over and over again, we decided there’s just no way, other place to go… I feel bad that we can’t give them the verdict that they wanted, but legally, we could not do that,“[^7]
And an excerpt from a joint statement by four other jurors:
“The death of a teenager weighed heavily on our hearts, but in the end we did what the law required us to do”[^8]
Acquitting George Zimmerman was the correct legal outcome. Not the morally right outcome or the just outcome, but the legally correct one.
That is how we got here. Not only because George Zimmerman racially profiled and shot Trayvon Martin, but also because special-interest-backed, ridiculously protective legislation, as well as criminal law’s procedural safeguards, guarantee that Zimmerman could do so and get away with it.
So what do we do now?
There are two avenues to reform—legal and social. Legally, we must roll-back laws that make it easier to kill people, as well as critically re-examine the burdens and presumptions that accompany self-defense law. Socially, we must work to eliminate the still-present scourge of racism in our country.
ALEC and the NRA passed the first stand your ground law in Florida in 2005. But they did not stop there. From 2005 to 2013, a total of 23 state legislatures (mostly Republican) have passed “stand your ground” laws.[^9]
However, the law doesn’t have to be this way. Here is California’s self-defense statute, section 197:
“Homicide is also justifiable when committed by any person in any of the following cases:
(3) When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed”
And here is New York’s, section 35.15(2):
“2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction, acting pursuant to section 35.30; or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
© He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.”
And the Model Penal Code, a highly influential code written by the American Law Institute, in section 3.04 states that:
“(b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.”
As you can see, all three examples are in line with the pre-2005 paradigm, authorizing the use of deadly force only after imposing a duty to retreat first. In addition, the New York statute only permits the use of deadly force when the person reasonably believes that the other person is also about to inflict deadly physical force, not just great bodily harm.
As a matter of policy, I think these two limits on deadly force are good. Over 30,000 people already die from gun violence each year in America,[^10] a much higher proportion than any other rich democracy.[^11]
Continuing to expand the legal authorizations for deadly force will only add to that somber statistic, by inevitably allowing those with less than good faith to “shoot first”, argue that he or she felt threatened, and get away with it because in most self-defense cases, the only other witness besides the shooter who can overcome presumptive claim of self-defense will be dead.
The empirical evidence confirms this. A 2012 study by economists at Texas A&M University, analyzing 20 states with stand your ground laws, reports that they “lead to a statistically significant 8 percent net increase in the number of reported murders and non-negligent manslaughters.”[^12] Stand your ground laws also adversely impact minorities. A study by John Roman and Mitch Downey of the Urban Institute found that “when the shooter is white and the victim is black, the justifiable homicide rate is 34 percent. When the situation is reversed and the shooter is black and the victim is white, shootings are ruled to be justifiable in only slightly more than 3 percent of cases.”[^13]
Stand your ground laws have been empirically demonstrated to cause more death and amplify racially disparate justifiable-homicide rulings. States like New York and California prove that there is an alternative: reinstating the duty to retreat outside the home and only authorizing deadly force against deadly force.
We saw how the presumption of innocence and the burden of proof beyond a reasonable doubt make the State’s case against a defendant incredibly hard to prove. This is suggestion is more daring, but I believe that, for purposes of self defense, the presumption of innocence should not be on the person who shoots and kills another person. Instead, it makes more sense to require the person invoking self defense to prove his or her claim. I am not sure what the burden should be, but it might be at a preponderance of the evidence (more than a fifty percent chance) instead of reasonable doubt. I suggest setting burden lower because laws can only regulate social behavior up to a point. In the heat of tense self defense encounters, self-preservation inevitably takes over. Policymakers must be wary not to limit the legal authorizations for deadly force so excessively so as to prevent good faith actors from protecting themselves against imminent death.
Statutorily, self defense laws should reinstate the duty to retreat outside the home and only authorize deadly force against deadly force. Procedurally, states should consider shifting the burden from the victim to the defendant, and require him or her to prove, based on a preponderance of the evidence, that he or she reasonably believed that deadly force was necessary.
Changing the Law
These are just some of the legal and procedural alternative out there. We must now politically mobilize to put these alternatives into place.
Just like ALEC and the NRA use cash donations, grassroots supporters, and political organizing to influence state legislators and change policy, so must we. The progressive counterpart to ALEC is a group called ALICE (American Legislative and Issue Campaign Exchange). ALICE consolidates and drafts progressive state laws. In addition, there are myriad political advocacy groups actively working to reduce gun violence: Organizing for Action, Moms Demand Action for Gun Sense in America, Americans for Responsible Solutions, and Mayors Against Illegal Guns. Donate to or get involved in any of these groups today to advocate for a legal system that brings us closer to justice.
To reduce racism, we must first identify it. That is happening now. The verdict in the Zimmerman trial has sparked a national dialogue on the realities of racial profiling, especially for black men and black boys. Now that the subject is in the public discourse, we must speak out in our local communities. That means engaging with people we know personally who harbor racist sentiments, no matter how uncomfortable that may be. And when we engage these people–whether it’s a friend, family member, or colleague–we must compassionately and sensitively educate them about why racist thinking is wrong. It is understandable to feel angry right now, but being self-righteous does not persuade others. It only alienates them and entrenches their views. Only love can conquer hate. And you must be a solider of love to outlast the many setbacks that have come (and will continue to come) in order to achieve eventual victory.
Law and Justice
What is legal is not necessarily what is just. But through our democratic process, we can change the laws to bring our system closer to justice. During the immense grief that the Zimmerman trial has provoked, we discredit Trayvon Martin’s life by choosing to give in to cynicism and despair. Many people have said many things in the aftermath of the verdict, but one statement resonates with me the most:
“My faith is unshattered.“ If Trayon’s own father has not given hope, then neither should we. Recognizing that in the scope of legal history, stand your ground laws are preposterously overprotective, and, armed with the policy solutions and political strategies to roll them back, we must work with strong and active faith to change both our laws and our culture to create a society where people do not judge one another based on race, where people cannot so easily kill one another, and where justice can ultimately prevail.
[^1]: People v. Tomlins, 213 N.Y. 243 (1914).
[^2]: As a study by the Connecticut General Assembly pointed out, “We could not find any studies on the impact of these laws.” Christopher Reinhart, Conn. Gen. Assembly, Castle Doctrine and Self-Defense, 2 (2007), available at http://www.cga.ct.gov/2007/rpt/2007-R-0052.htm.