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Zimmerman Acquitted, Justice Indicted

July 20, 2013

Shortly after George Zimmerman shot and killed Trayvon Martin, I argued that a “duty to retreat” law values life, whereas a “stand your ground” law “says that taking a life, at least the life of an attacker, is preferable to compromising the pride of the person who was attacked.” I said that the American shift over time from historically rooted “duty to retreat” laws to more recent “stand your ground” laws “is of a piece with modern American gun culture, and it speaks poorly of us as a country.”

Nothing in the Zimmerman trial changed my views on the relative merit of “duty to retreat” and “stand your ground” laws. On the contrary, what was perhaps most notable about the Zimmerman trial is how little it depended on the difference between the two kinds of laws.

Both “duty to retreat” and “stand your ground” laws are about self-defense: specifically, when and to what extent a person can use force, including deadly force, in self-defense. Both permit forcible self-defense under certain circumstances and prohibit it under other circumstances. The difference between the two laws is in the description of “certain circumstances.”

So I think that much of the commentary about the Zimmerman trial misses the real lesson of the case. And thus I think the problems exposed by the Zimmerman case are much more fundamental even than a condemnation of “stand your ground” laws. The Zimmerman case exposed deep problems with the doctrine of forcible self-defense. Since self-defense is fundamental to our criminal justice system, the Zimmerman case exposed deep problems with our criminal justice system.

To state it one way, the Zimmerman case demonstrated that our criminal justice system takes whiteness to be normative and blackness to be deviant.

Self-defense depends on the reasonableness of the defendant’s perceptions. Generally speaking, the self-defense doctrine says that a person who reasonably believes that he is in imminent risk of death or serious bodily harm is entitled to use force to defend himself, and he is entitled to use as much force as he reasonably believes is necessary to prevent death or serious bodily harm. So a plea of self-defense puts on trial the reasonableness of the defendant’s beliefs.

If falls to a jury to assess the reasonableness of the defendant’s beliefs. A jury is inherently a democratic institution. Ordinary citizens, however poor or powerless in their individual lives, have the immense power as jurors to agree or disagree with the government’s investigative and prosecutorial authorities, and to reject the government’s proposed action. And if a jury must be unanimous to convict, then each individual juror has the power to prevent (or at least defer) the government’s exercise of one of its most important powers.

But of course the awesome democratic strength of juries is also the great weakness of juries. Just as juries composed of randomly selected citizens bring the common sense and life experience of the community to the jury room, so they also bring the prejudices and preconceptions of the community to the jury room.

White people question the intentions of a black teenage boy in a hoodie, walking in a mostly white neighborhood, in a way that black people don’t question the intentions of a white teenager in a hoodie walking in a mostly black neighborhood. In fact, white people question the intentions of a black teenager in a hoodie pretty much anywhere in a way that black people don’t question the intentions of a white teenager in a hoodie. A jury will intuitively consider it reasonable for a white defendant to be concerned about, or fearful of, a black teenager. The same jury will not have the same sympathy with a black defendant who is concerned about, or fearful of, a white teenager.

There is no question that Trayvon Martin was concerned about, and probably afraid of, George Zimmerman – the “creepy-ass cracker” who was following him for no reason that Martin could discern, except perhaps that Martin was a black teenager in a hoodie. But what decided the case was the jury’s assessment that Zimmerman had every lawful right to go where he went, to follow Martin until one of them confronted the other, and that Zimmerman reasonably feared imminent death or serious bodily injury at the time that he shot Martin in the chest.

In white-normative terms, Zimmerman’s legal right to be where he was and do what he was doing prevailed over Martin’s legal right to be where he was and do what he was doing. Walking while black is inherently more suspicious than tracking down a black teenager despite having been told not to, based on no information about the teenager beyond his blackness. Zimmerman had the legal right to react to Martin the way he did, but Martin did not have the legal right to react to Zimmerman the way he did.

*          *          *

Three days before Christmas in 1984, Bernhard Goetz boarded a downtown-bound number 2 express train. The car was almost empty, but at one end was a group of four black teenagers from the Bronx. Goetz had recently been mugged, and of all the many seats available in the car, Goetz chose one close to the group of young men. He, like Zimmerman, had the confidence of knowing that he was armed, and the benefit of the likelihood that his quarry was probably not armed.

As with the Zimmerman case, it is not clear exactly how the initial interaction between Goetz and his victims began. Two of the teenagers approached Goetz, and, depending on the witness, one of them asked for or demanded five dollars. Goetz stood and shot him. Then, by his own admission, he shot the other three teenagers. Finally, according to Goetz’s police statement, he came back to his first victim and said, “You don’t look so bad, here’s another,” and shot him again. Goetz told police that his intention was “to murder them, to hurt them, to make them suffer as much as possible,” and that the only reason he stopped shooting was that he ran out of bullets.

Although Goetz didn’t know it, the teenagers had screwdrivers with them, apparently intending to steal coins from video arcade games. This was taken as a sort of generic criminal state of mind on their part, as if their intention to commit a property crime at another place in the near future was relevant to events there and then. The teenagers had the perfect legal right to be on the subway car, and, because Goetz’s firearm was unlicensed, they actually had a better legal right to be carrying screwdrivers than Goetz had to be carrying a gun. And although the teenagers initiated conversation with Goetz, Goetz had chosen to be close enough to them that they could initiate that conversation.

At every point in the encounter, Goetz interpreted the teenagers’ actions as threatening and the teenagers explained their actions as benign. Goetz saw the teenagers blocking him from moving away, demanding five dollars on threat of beating Goetz “to a pulp.”

New York is a “duty to retreat” state. Still, the jury concluded that Goetz reasonably feared imminent death or serious bodily injury and that Goetz used a reasonable degree of force to prevent death or injury. The jury found perfectly reasonable a white man’s fear of black teenagers, and was not bothered by that white man’s choice to sit with a concealed firearm among the black teenagers he claimed to fear.

My opinion has always been that Goetz sat near the teenagers with the explicit hope that they would give him a reason to shoot them, to inflict the punishment that he thought young black men deserved, and that his earlier muggers had escaped. My opinion is that Zimmerman followed Martin to make sure that he did not escape the punishment that he deserved, as had several burglars in the neighborhood.

Zimmerman, like Goetz, knew that he was armed and therefore knew that he had nothing to fear in confronting Martin, or putting himself in a position where Martin might confront him. I don’t necessarily think that Zimmerman shared Goetz’s hope that his victim would provoke him to shoot, but I am confident that Zimmerman knew of the possibility and went into the encounter ready, willing and able to kill a teenager who was suspiciously walking while black.

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