Two Thoughts about the Trayvon Martin/George Zimmerman Case

George Zimmerman, a neighborhood watch volunteer in Sanford, Florida, recently shot and killed Trayvon Martin, an unarmed black 17-year-old who was walking through Zimmerman’s neighborhood. Martin was returning from a convenience store to the home of his father’s fiancee. The shooting has been in the news so much, and has stirred such strong emotions, that I am reluctant to wade into it, but the case raises at least two interesting legal issues.

I’ll start by noting that there are two competing narratives about what happened. Those who believe that Zimmerman was a vigilante who approached, assaulted, and then shot Martin emphasize (1) that Zimmerman contacted police upon seeing Martin, then, even though the dispatcher told him that “we don’t need you to do that,” chose to follow Martin, (2) that Martin was talking on his cell phone to his girlfriend, and told her that he was being followed and that he was afraid, and (3) that Martin carried nothing more threatening than a bag of Skittles. ABC News has a story here that confirms most of those facts.

However, the Sanford police did not charge Zimmerman with a crime, apparently accepting Zimmerman’s very different version of events. The New York Times reports here that Zimmerman told the police after the shooting that he had failed to locate Martin and was returning to his vehicle when Martin confronted him, punched him, and then repeatedly slammed his head into the sidewalk. There is at least some evidence corroborating Zimmerman’s claims. The Orlando Sentinel reports here that a witness “told police he saw Zimmerman on the ground with [Martin] on top, pounding him,” and that Zimmerman was crying for help. Zimmerman’s lawyer says that Zimmerman suffered a broken nose. Paramedics treated Zimmerman at the scene of the incident, though Zimmerman declined to go to the hospital. A police report states that the back of Zimmerman’s clothes were wet and stained as if he had been struggling on his back on the ground.

I don’t know enough about the case to have an opinion about which narrative is more plausible. The case is being investigated by a Florida grand jury, so perhaps we will have more information soon. However, the case did get me thinking about the following legal issues.

  1. The significance of stand your ground laws. The Martin/Zimmerman case has led to a tremendous amount of discussion about Florida’s stand your ground law, which allows a person who is threatened with deadly force to respond with deadly force without a duty to retreat. A few examples of criticism of the law spurred by this case are here, here, and here. North Carolina now has a similar statute, as my colleague John Rubin discussed here. But it’s pretty clear that this case has nothing to do with whether Zimmerman could stand his ground or had a duty to retreat. If the vigilante version of the facts is true, then Zimmerman was the aggressor, didn’t face a deadly threat, and can’t claim self-defense even under the stand your ground law. If Zimmerman’s version of the facts is true, he was on the ground getting a brutal beating, and had no opportunity to retreat. For a more detailed analysis along the same lines, see Professor David Kopel’s discussion here. More generally, I suspect that the impact of stand your ground laws is quite limited, for two reasons. First, such laws apply only when a person is threatened with deadly force, and it is usually not possible to retreat safely from situations in which deadly force is being threatened, so the laws apply to a small universe of cases. Second, even before the recent wave of statutory stand your ground laws, often accompanied by expanded gun rights, most states rejected a duty to retreat. John’s prior post suggests that North Carolina generally did not impose a duty to retreat.
  2. Should affirmative defenses be considered when determining probable cause? When I teach new magistrates about making probable cause determinations, I generally teach them to disregard possible defenses unless a defense is a slam dunk. My reasoning has been (1) that the burden is on the defendant to establish an affirmative defense, (2) that he or she will have an opportunity to do so in court, and (3) that magistrates generally are not trained in the law of affirmative defenses. But the police in the Zimmerman case declined to arrest Zimmerman because they concluded that he was protected by an affirmative defense, namely, self defense. And law professor Eugene Volokh argues here that officers were correct to consider the defense, as probable cause “should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed.” That got me thinking further about how strong the evidence of an affirmative defense needs to be before an officer or a magistrate may or must consider it. I went looking for case law. I didn’t find anything in North Carolina, and cases elsewhere don’t quite agree. Here is what I found:
  • Holman v. City of York, 564 F.3d 225 (3rd Cir. 2009) (holding that an arresting officer was not required to consider the defense of necessity when assessing probable cause for trespass because that would present “daunting issues . . . [and] countless factual permutations,” and citing a previous case reaching a similar conclusion about the statute of limitations defense; the court stopped short of holding that officers need never consider affirmative defenses)
  • Fridley v. Horrighs, 291 F.3d 867 (6th Cir. 2002) (summarizing Sixth Circuit law as precluding arrest when an officer conclusively knows that an affirmative defense applies to a suspect’s conduct, though officers are not required to investigate possible affirmative defenses)
  • Pickens v. Hollowell, 59 F.3d 1203 (11th Cir. 1995) (“[P]olice officers have no responsibility to determine the viability of a statute of limitations defense when executing a valid arrest warrant. The existence of a statute of limitations bar is a legal question that is appropriately evaluated by the district attorney or by a court after a prosecution is begun, not by police officers executing an arrest warrant.”)
  • State v. Reid, 988 P.2d 1038 (Wash. Ct. App. 1999) (stating that “[a]t the time of arrest, the officer cannot know and it would be unreasonable to require him to estimate the likelihood of success of a potential affirmative defense,” that “an affirmative defense is properly a matter for the ultimate trier of fact,” and that therefore a court may not consider affirmative defenses when assessing the legality of an arrest in the context of a motion to suppress, and citing similar cases from two other states)

I’m inclined to stick to the idea that affirmative defenses shouldn’t be considered unless they’re slam dunks, which seems to be pretty close to what Fridley says. But I’m open to persuasion, so let me know  if you’re aware of additional authority or think I’ve got it wrong.

7 thoughts on “Two Thoughts about the Trayvon Martin/George Zimmerman Case”

  1. Excellent commentary. I finally found something to chew on but I still feel like the discourse should go beyond this to the issue of Police SOP and standard Police-Prosecutor interaction.
    I just find it astonishing that no one has dealt with the subject of the Police Training (either hands-on or with revised documented procedures) regarding, in particular, whether legislative changes (at a state level) should or should not key changes in how Police and prosecutors are to carry out their responsibilities. It might be pretty evident to you (given that criminal law is your field of study) that Police should not have to bear the burden of interpreting all the possible states-of-mind that might have existed in each person’s head and all, at the time of the incident, but to the citizens, somewhat worried about what ALEC is up to by introducing and lobbying (with the NRA) for these bills in dozens of state legislatures, it is quite disconcerting to find all reporters focussing on the sensational aspects and none asking questions regarding the SOP for Police in Self-defense cases — e.g. even if the officers on the scene feel that there is reasonable evidence to support the self-defense plea, aren’t they still required to follow certain rules of evidence collection like taking possession of the suspected weapon so that it can be subjected to forensic analyses? There seems to little knowledge of how the CJS should be running. I mean, like, all the money we put into churning out degrees in CJS and no one knows any questions to ask to determine whether or not we are dealing with a drift of the system towards vigilantism or whatever. I think that most of the public does not know how the Prosecutors Office and the Police are supposed to interact in such cases (I don’t and I worked in Corrections Administration for a large city, where I often interacted with the Police and had to know about how the Police, Courts,and Prosecutors function within the CJS); also, is anyone checking to see that there is some degree of compliance to standards across all the counties in a state (if, in fact there are such standards)?
    All this reporting and no one challenged the Police for not confiscating the weapon ans no one asked the police whether or not they took a sworn statement from Zimmerman? Like, isn’t all that SOP? I thought, “What if the guy changes his story” (as it appears now that he has); he could claim that the Police ‘made’ him confess to the shooting and about the gun: “what gun” he now says. Then, the police would not be able to build a case under any law, not the “Stand Your Ground” law or any other. Who should bear the responsibility for telling the Police that such and such law affects or should not affect their procedures?
    Also, if Zimmerman shot the boy while the boy was on top of him, wouldn’t one suspect to find blood on his (Zimmerman’s) clothes. Therefore, wouldn’t it have been SOP for the police to have confiscated the shooter’s clothes and checked for evidence of the victim’s DNA on the suspect (to confirm physical contact consistent with the story of a violent struggle)? It is evident that either 1) this police department is grossly incompetent or 2) this was not treated as a normal case by the police; that is, it was all proforma — someone (from the Prosecutor’s Office) told them not to worry that Zimmerman would stick to his story and no further processing would be needed. How can we get more responsible jouranism in this country. Isn’t this a good opportunity to at least to point out what jourmalists should have asked?

  2. It is difficult argue against your legal conclusion. It certainly seems to cut against the grain of the vast amount of effort and training in the area of domestic violence for street officers. Many departments now implement policies for officers to determine the “primary aggressor” when confronted with signs or claims of assault to both parties, a practice that specifically considers the affirmative defense of self-defense, in lieu of making “dual arrests” … a practice that is extremely unpopular among DV advocates.

  3. A lot of the recent information has not lent itself to a corroboration of the Zimmerman story. However given that this information has been filtered through a media that has routinely skewered the facts (digitally manipulated photo’s, a video that looked edited, a failure to report Trayvon’s posing as a thug online, outing a 13 year old they believed to be a witness for Zimmerman, calling Zimmerman a “white” and so on) I don’t feel comfortable abandoning belief that he might be a victim in all this. But yeah . . . on the surface it is not looking very good for him.

  4. stephen, the 3 items you cite as evidence the SPD did not perform to standards are all factually opposite of what you claim. Zimmerman’s weapon was confiscated, Zimmerman voluntarily answered questions under a VSA and yes, his clothing was taken by police.

    Everyone is so quick to play “magistrate” in this case that is marked by a whole host of media reports that are slowly but surely be walked-back and retracted.

  5. I think we might be overlooking the following language as discussed on Kopel’s comments :


    Finally, Florida law guaranteeing self-defense rights express excludes anyone who “Initially provokes the use of force against himself or herself.” Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights if:

    (2)(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.

    The only way that this statute would be relevant would be if Zimmerman initially attacked Martin, and then withdrew. Zimmerman has made no such claim, nor does the M narrative.

    Definition of ‘provoke’ is not in the Florida Statute… Provoke has been defined as:

    provoke [prə-vōk] vt

    1 : to incite to anger
    2 : to provide the needed stimulus for pro·vok·er n


    There are many cases regarding ‘hate speech,’ and whether such language ‘provokes’ violence.

    Do read the section on “Provocation” in 826 F.2d 806…

    Ramon GARCIA; Maria Morfin Garcia, Plaintiffs-Appellees,
    UNITED STATES of America, U.S. Dept. of Justice & I & NS,
    No. 86-2645.
    United States Court of Appeals,
    Ninth Circuit.

    Argued and Submitted May 12, 1987.
    Memorandum July 28, 1987.
    Opinion Sept. 2, 1987.

    I am not so sure an argument can’t be made that “initially provoking the use of force against himself or herself” does not need to include throwing the first punch. Could following a person make someone fearful for their safety? Could the negligent actions of a neighborhood watch make a person fearful for their safety?

    I haven’t spent enough time reviewing Florida Law (and don’t plan to…). Arizona Law, however, may have an affect on whether “provoke” means to throw the first punch. I certainly don’t think ‘provoking’ means ‘attacking,’ and I think the law would have been written differently if ‘provoking’ was supposed to mean ‘throw the first punch’ or ‘attack first’…

    The Garcia case states:


    State v. Jackson, 94 Ariz. 117, 382 P.2d 229, 232 (1963) (emphasis added). Unintentional acts (e.g., reckless, negligent, wantonly negligent) do not constitute provocation.15

    In Jackson, the Arizona Supreme Court held that defendant did not forfeit his right to self defense by returning, armed, to the scene of an earlier altercation with the victim, even though the victim had threatened twice to shoot defendant, defendant knew of victim’s reputation for violence, and defendant knew that victim carried a pistol. Id. at 231-32.

    The act of returning to the clubroom [did not forfeit defendant’s right to self-defense] unless it was … deliberately calculated to lead to further conflict…. On[e] who merely does an act which affords an opportunity for conflict is not thereby precluded from claiming self-defense. Fault implies misconduct not lack of judgment.

    Id. at 232 (citations omitted).


    The whole situation is … tragic. What I don’t understand is why nobody communicated… Why didn’t Zimmerman simply ask Treyvon what he was doing–even from a distance? Treyvon might have said, “Dude, you scared me… I’m heading home after leaving my girlfriend’s house. Do you know her? She lives at …” Zimmerman might have laughed… End of story…

    What I don’t understand is how people fail to even try to communicate–regardless of whether any violence might result.

    • Yes,, I too don’t understand why people just don’t communicate. Martin could have easily shouted at Zimmerman, “Can I help you?”,, End of Story.

      Or he could have called 911,,, “I’m being followed by a suspcious car,, I’m at,,, ” The computer should have put the locations together,, and the 911 ops calmed the whole thing.

      Tragic,,, is the only word. But like all tragedies,,, it’s a course through a series of miss-steps where any deviation from the events,, would have prevented the outcome.

  6. Question,,,

    Does/did,, the “immunity” from being charged, held for questioning, etc.,, afforded by the Florida Stand Your Ground law,,, impact the course of events or conduct by the officers and the state?

    How does law enforcement reconcile,,, the “immunity” provisions of the Florida law when a shooter envokes Stand Your Ground?


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