Was George Zimmerman’s Fear Reasonable

One of the key elements of the George Zimmerman / Trayvon Martin Case is did Zimmerman have a reasonable belief that he was about to be killed or sustain great bodily injury. That claim is going to come from Martin banging Zimmerman’s head into the concrete. So how bad can that really be? A quick Google search turned up these:

Read here about the case of James Paroline of Seattle, Washington, who was killed after a punch sent him to the concrete:

“A 60-year-old Rainier Beach man seriously injured in a dispute over a neighborhood traffic circle died Thursday night at Harborview Medical Center. James Paroline had been in a coma since being punched and hitting his head on the concrete during the altercation Wednesday,…”

Read here about the case of Angelo Fuentes, who died in Missoula, Montana, also after a single punch sent him to the sidewalk:

“…Hylton – described by one witness as about 6-foot-4, weighing 300 pounds – punched the 5-foot-6, 165-pound Fuentes. But the accounts differ as to whether there was just a single sucker punch – “a snaky move,” a witness who didn’t know either man described it – that sent Fuentes down, his head cracking against the sidewalk, or more than one blow. Fuentes was taken off life support later that day. A coroner’s report listed the cause of death as blunt force trauma to the head.”

Read here about James Jones of Newark, New Jersey, who also died, after yes, a single punch sent him to the concrete:

“When one of the men punched Jones, he fell, striking his head on the concrete walkway, Jones’ girlfriend later told police. Jones, who lived in the apartment complex, was taken to University Hospital, where he died Monday, at 4:30 p.m. The Essex County medical examiner has ruled his death a homicide from blunt force trauma to the head.”

I’m sure I could find many more. Lots more. According the Centers for Disease Control, the estimated annual average number of traumatic brain injuries in the United States for the years 2002 to 2005 that were due to assault was approximately 170,000. Of those, approximately 5800 resulted in death. See the report here.

So could George Zimmerman have had a reasonable fear that Trayvon Martin smashing his head into the concrete would result in death or great bodily injury? Hell yes.

Does “Stand Your Ground” Even Apply to George Zimmerman?

The George Zimmerman case has, naturally, prompted a lot of discussion in the media about self-defense and the Florida statue regarding the justifiable use of force, commonly called the “Stand Your Ground” law. As I said in a previous post, the”Stand Your Ground” nickname comes from one eight-letter phrase in a sentence referring to the justified use of deadly force:

“a person is justified in the use of deadly force and does not have a duty to retreat if…”

If we take Zimmerman’s account of the events of that night as true, then the above phrase is irrelevant. Zimmerman could not have retreated at the time he chose to use deadly force; he was underneath Martin and hadn’t been able to get away from him despite 30 seconds to a minute of struggling. Retreating was simply not an option. Zimmerman would have been justified regardless.

HOW WOULD MARTIN’S ACTIONS BE VIEWED WITHOUT “STAND YOUR GROUND”?

Another interesting part of this discussion is how Trayvon Martin’s actions that night would have stood the legal test if the “have no duty to retreat” clause was not included in the statute. I’ll consider a couple of scenarios for Martin. Under both scenarios, though, Zimmerman and Martin had lost sight of each other. That seems to not be in dispute on the night in question.

Could Martin have legally gone back and confronted Zimmerman? Well, simply going back and talking to Zimmerman would be fine, and just as legal as Zimmerman approaching Martin and talking to him. “Talking” in this case does not mean “making threats”; it means asking and/or answering questions, etc. However, if Martin truly believed that Zimmerman was a threat and if he had a duty to retreat, then he wouldn’t, in my opinion, have been legally justified in going back and using force against Zimmerman. Martin would have had a duty to retreat, and he could easily have just gone home and stayed there.

What if Zimmerman had caught up to him as alleged by some? What if Zimmerman had shoved him first? Then, in the absence of “stand your ground”, Martin might have been justified in throwing the punch and knocking Zimmerman down, but he would still have to try to retreat before using deadly force–e.g., slamming Zimmerman’s head into the ground. He didn’t do that. He stayed and fought or wrestled with Zimmerman, despite being on top and being able to disengage and run away. And Martin was clearly the faster runner, evidenced by the fact the he lost Zimmerman earlier.

IN SUMMARY

Therefore, my opinion is that if the “Stand Your Ground” portion of the law were removed, Zimmerman’s actions would still be justified but Martin’s would not. The very portion of the law that has come under criticism by some is the only portion under which Martin’s actions can be defended. Ironic, isn’t it?

[The standard “I am not a lawyer, I just play one on the Internet” applies to the preceding discussion.]

Trayvon Martin’s Actions and the “Stand Your Ground” Law

[Let me preface this by saying that I am neither a police officer nor a lawyer. The following discussion about the law is a lay person’s view of it.]

TRAYVON MARTIN’S ACTIONS UNDER THE “STAND YOUR GROUND” LAW

Picking up where I left off in my last post, I wanted to look at the assertion by some that Trayvon Martin had the right to start the fight with George Zimmerman under the “Stand Your Ground”. Note that we are still operating under the scenario that Zimmerman’s story, as we know it so far, is true–Zimmerman lost sight of Martin, and Martin later came back and approached Zimmerman and threw the first punch.

The assertion usually goes like this: “Zimmerman scared Martin by following him, and Martin had the right to confront him. He didn’t have a duty to retreat. Even if Martin threw the first punch, he was still justified.”

Let’s look at the statute again (so you don’t have to click back to the last blog post):

776.012 Use of force in defense of person.—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 reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony…

Let’s start with the first sentence, which deals with other than deadly force. A couple things strike me as important. First, the person has to believe that unlawful force is “imminent”, and second, that belief has to be reasonable. Under our scenario, it would be hard to argue that any force Zimmerman might use against Martin was “imminent”. Zimmerman had lost sight of Martin and stopped pursuit. What if Martin didn’t know that, though, and maybe thought he was still being pursued and decided to “stand his ground”, return and confront Zimmerman.

Martin returning to confront Zimmerman and ask him if he is following Martin is not illegal, any more than Zimmerman approaching Martin and asking what he was doing there was (if we take Martin’s girlfriend at her word). However, once they are face-to-face again, any danger would be imminent, so we would have to look at the reasonableness of Martin’s belief that Zimmerman was about to use unlawful force.

This is the tricky part of the law, and I don’t think there is a clear-cut answer. My opinion is that–absent any verbal or physical threat–it is NOT reasonable to believe that someone means you harm simply because he has followed you a short distance. And Zimmerman asking Martin what he was doing there, if that occurred, also does not seem to reasonable grounds to assume Zimmerman was going to attack Martin.

Some would argue otherwise, that simply following is threatening. I can certainly understand that being followed might feel threatening to some–perhaps even most of us–but that is a vague threat, a “I wonder what he wants? Does he want to hurt me? Steal from me?” kind of a threat. But until the follower approaches, it’s not imminent and it’s not specific.

Ultimately, though, I think a court and/or jury would have to make this call. It is not clear-cut to me how such a claim would shake out.

BUT DEADLY FORCE?

The second sentence of the statute talks about when deadly force can be used. Again, under Zimmerman’s scenario, Martin banged his head into the concrete more than once.

This is deadly force. Let me repeat this: Banging someone’s head into the concrete is deadly force. It can crush a skull and cause brain damage or death in a very short period of time. And you can’t say, “Well, I’ll only smash his head hard enough that it hurts, not that it kills him.” because it is impossible for an attacker to know just how much force is too much. Therefore as soon as the attacker does this, the possibility of death or great bodily harm is immediate and real.

So was Martin warranted in using deadly force? He would have to reasonably believe that Zimmerman was about to kill him or cause him great bodily harm,.

I just don’t see it.

Let’s assume for a moment that a court would say, “Yes, following someone is considered a threat of immediate harm.” Is it reasonable for Martin to assume that that threat was so great that he could be killed or sustain great bodily harm?

I’m not so sure it is. Martin was a big kid, 6’2 or 6’3″, and 150 to 160 lbs. Zimmerman is much shorter, 170 to 180 lbs. Martin was athletic–he played football–and physical and he had reach on Zimmerman. Zimmerman is stocky, maybe pudgy, but certainly not a lean fit 5’9″. Zimmerman’s gun was concealed.  In a fist fight, absent weapons, Martin certainly had the physical size and stamina to hold his own.

The only way Martin’s use of deadly force would be justified, in my opinion, is if he saw Zimmerman’s gun (before he used deadly force) and if Zimmerman made an overt threat to him. Under Zimmerman’s scenario, however, the gun didn’t become visible until later in the fight.

SUMMARY

To summarize, Martin throwing the first punch might be justified under current Florida law, if one could prove that the act of following along is a sufficient threat of the immediate use of unlawful force. Martin’s use of deadly force does not appear to be justified under this scenario

UP NEXT

Other possibilities. What if Zimmerman “chased down” Martin as some have claimed? What then?

 

A Closer Look at Florida’s “Stand Your Ground” Law

[Let me preface this by saying that I am neither a police officer nor a lawyer. The following discussion about the law is a lay person’s view of it.]

“STAND YOUR GROUND” LAW

The “Stand Your Ground” law that has been referenced in the media lately is actually Florida Statutes Chapter 776 – “Justifiable Use of Force”. “Stand Your Ground” comes from the language within that statute that says a person “does not have a duty to retreat” under certain circumstances. Here is part of the relevant section to the Zimmerman case:

776.012 Use of force in defense of person.—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 reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

Section 776.013 refers to home protection and is not relevant to this discussion. Let’s look at how this might apply to George Zimmerman.

ZIMMERMAN’S SIDE

In this post, I’m going to take Zimmerman at his word (and I haven’t seen any credible evidence to contradict him yet–that’s another blog post) as we know about it today. In another blog post, I’ll talk about other scenarios–that Zimmerman approached Martin and attacked him.

The gist of Zimmerman’s story is that he followed Trayvon Martin, lost sight of him, and was walking back to his car when Martin approached him. They exchanged words and Martin punched him, knocked him to the ground and they began to struggle. Martin banged Zimmerman’s head onto concrete at least once. At some point, Zimmerman pulled his weapon and fired a single shot into Martin’s chest, which ended the confrontation. Martin may or may not have seen Zimmerman’s gun and tried to grab it.

The relevant portion of the statute seems to be, “…a person is justified in the use of deadly force and does not have a duty to retreat if…He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” If we take Zimmerman’s story as true, then it appears that the use of deadly force was justified. The broken nose and other bruises are not as relevant as the possibility of grave head injury/death. There are many documented instances of people hitting their head on the concrete–just once–and later dying from the trauma. To me, it’s head injury. Also, as I said above, there have also been reports from Zimmerman’s family that Martin tried to take Zimmerman’s gun from its holster or that he said “you’re going to die.” If true, those only lend more justification for Zimmerman’s actions.

One red herring that I’ve seen in various discussions is, “Well, Zimmerman wasn’t that badly hurt so he wasn’t justified in using his gun.” This also usually includes comments about whether or not Zimmerman’s nose was really broken, how many bruises he had, how bad the gash on his head was, etc. However, the language in the statute reads “to prevent imminent death or great bodily harm.” (my emphasis). Zimmerman didn’t have to be badly injured when he pulled the trigger he just had to believe that he was about to be.

ZIMMERMAN AS AGGRESSOR BECAUSE HE INITIALLY FOLLOWED MARTIN?

Some folks have said, “Wait a minute. Zimmerman was the aggressor because he followed Martin and scared him. It doesn’t matter if Martin came back and threw the first punch, Martin was just exercising his own ‘stand your ground’ rights.” There’s another section of the law that is relevant to this, and that’s the following:

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Section (1) does seem to say that if the aggressor is committing a “forcible felony”, then he cannot, under any circumstances, claim justifiable use of deadly force. Section 776.08 describes what constitutes forcible felonies and includes, amongst other things, aggravated assault, aggravated battery, and any other felony which involves the use or threat of physical force or violence against any individual. More on this in a later blog post.

Section (2)(a) is key. Note that this deals with provoking an attack in the absence of a forcible felony. If Zimmerman following Martin simply made Martin feel scared enough to throw the first punch, then Zimmerman’s actions fit with section (2).  Following someone–in the absence of any verbal or physical threat–does not appear to qualify as a forcible felony. So there are a couple of cases under which Zimmerman would still be justified in using deadly force.

If Zimmerman reasonably believed that he was in imminent danger of death or great bodily harm AND he had exhausted other options to disengage without using deadly force, then under Section (2)(a), it appears that he would be justified in, in the end, shooting Martin. I have already addressed the assumption of harm, so did Zimmerman try other options before pulling the trigger?

According to 911 calls, the fight lasted maybe 30 seconds to a minute. So clearly, Zimmerman did not pull his gun as a first defense. He struggled with Martin and called for help. He couldn’t retreat because he was on the bottom in the fight. Finally, he pulled his gun and fired. This scenario appears to me to meet the requirements of 776.041 (2)(a).

Other folks claim, “Zimmerman stalked Martin.” Did he and is that a felony? Would that negate Zimmerman’s defense?

Here is how the Florida state statutes define stalking:

784.048 Stalking; definitions; penalties.—

(2) Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, …

(3) Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree, …

I would argue that Zimmerman following Martin does not meet even the requirements of Section (2) because all of Zimmerman’s following all occurred within a few minutes, rather than it being repeated instances, and there was no proof that it was malicious. However, even if the police determined it was repeated and malicious, this offense is only a misdemeanor and not a forcible felony that negates the justification of deadly force.

Zimmerman’s actions would have to have risen to the level of the those described in Section (3) for the offense to be a felony. That does not seem to be reasonable or provable under these circumstances.

OTHER POSSIBILITIES

In coming posts, I’ll look at Martin’s actions under this scenario, Zimmerman’s and Martin’s actions under other scenarios, and whether the “stand your ground” portion of this statue even applied in this case.

CNN Backtracks on the Voice Analysis

SEE UPDATE BELOW

An article posted to CNN.com yesterday evening contains some interesting information and massive backtracking on the recent voice analysis on the screams heard the night Trayvon Martin died.

First, Tom Owen, the “expert” who performed the computer analysis of the voice samples, now says that only a 60% characteristic match not 90% is required to determine if two samples match:

“Using [his software], he found a 48% likelihood the voice is Zimmerman’s. At least 60% is necessary to feel confident two samples are from the same source, he told CNN on Monday — meaning it’s unlikely it was Zimmerman who can be heard yelling.”

Here’s what Owen said in a March 31, 2012 article in the Orlando Sentinel:

“”I took all of the screams and put those together, and cut out everything else,” Owen says.

The software compared that audio to Zimmerman’s voice. It returned a 48 percent match. Owen said to reach a positive match with audio of this quality, he’d expect higher than 90 percent.

“As a result of that, you can say with reasonable scientific certainty that it’s not Zimmerman,” Owen says, stressing that he cannot confirm the voice as Trayvon’s, because he didn’t have a sample of the teen’s voice to compare.”

Quite a change in two days. Now it is just “unlikely” that it was Zimmerman, not “certainly not”  Zimmerman. Updated to add: It has been pointed out to me that the word “unlikely” was the CNN reporter’s term, not Owen’s, and that is a fair point. However, the point still stands that Owen first said that because the “high quality” samples did not show greater than a 90% match, it was “reasonable scientific certainty” that the screams were not Zimmerman, and two days later said that only 60% is necessary for a match.

The CNN article goes on to acknowledge:

“And standards set by the American Board of Recorded Evidence indicate “there must be at least 10 comparable words between two voice samples to reach a minimal decision criteria….But that board’s current chairman Gregg Stutchman — who described Owens as a friend and well-respected in their field — said that exact metric doesn’t necessarily apply to the software Owens used.”

I’m glad they are addressing the issue of the number of words, but the article does not say why it does matter for Owen’s software. The article also doesn’t address the other problems with the samples. Still, it’s a start. And there’s more backtracking after that:

“David Faigman, a professor of law at the University of California-Hastings and an expert on the admissibility of scientific evidence, said courts and the overall scientific community have mixed opinions about the reliability of such “voiceprint” analysis.”

Of course, the reporter can’t quite let go without one final dig:

“Still, [Mr. Faigman] said, it wouldn’t be too hard for Zimmerman’s attorneys to find an audio expert to offer an opposing opinion.

“These expert witnesses come out of the woodwork when money is concerned,” he said.”

I find that quite ironic since I’ve read–but not confirmed–that the Orlando Sentinel paid for the original voice analysis. Out of the woodwork, indeed.

UPDATE: CNN has now updated the article. New link to article. In particular, the section regarding the questionable voice analysis has been expanded:

“But CNN and HLN legal analysts Beth Karas and Sonny Hostin raised questions about what the public should consider regarding the conclusions reached.”

This was followed by some discussion which concluded with both analysts “urging caution” in drawing any conclusions from the results of the voice analyses. Please go read! And Mr Owen has provided a non-explanation of why we should believe his software:

“Owen said the published American Board of Recorded Evidence standards apply only partially to the kind of test he conducted.

“These standards apply to the older aural-spectrographic analysis and software,” Owen said. “This only partially applies to the biometric software.”

Backwards and backwards and backwards…

George Zimmerman Spoke up for Sherman Ware

Interesting news out on the Internet today. According to a letter written by a member of George Zimmerman’s family, George Zimmerman was one of the few people who pressed for a further investigation of the Sherman Ware incident–where a homeless black man was beaten by the son of a police officer–and tried to organize the black community to protest as well. Read the whole story at The Daily Caller.