By Nancy Gertner
The words on the 911 tape were familiar ones. I have heard them many times before: suspicious, black, teenager, hoodie, touching his waist band, up to no good. This time they were not from a police officer testifying about why he was justified in stopping a young black man and frisking him in the streets of Boston. This time they were the words of George Zimmerman, a civilian on neighborhood watch who was armed. Zimmerman knew just what to say to get the police to investigate. Indeed, he had done it many times before.
Whatever the justification for the 911 call – and it was thin – nothing justified what happened afterwards, not even under Florida’s infamous “Stand Your Ground” law. Florida has led the nation with this law, despite the opposition by prosecutors and law enforcement groups. Palm Beach State Attorney Barry Krisher opposed the law “because it encourages people to stand their ground .. when they could just as easily walk away. To me that’s not a civilized society.” Paul Logli, the president of the National District Attorneys Association said that these laws “give citizens more rights to use deadly force than we give police officers and with less review.” Despite the opposition, many other states followed Florida’s bad example. Indeed, such a law has recently been proposed in Massachusetts by Senator Stephen Breyer and Representative George Peterson.
Before “Stand Your Ground,” all countries in the Anglo-American legal tradition severely limited the circumstances under which a civilian could use deadly force. It was about the sanctity of life, after all. Self defense was permitted as a matter of necessity, but only when there was no time to resort to law enforcement, when he or she was threatened with deadly force, and when the citizen had reasonably tried to avoid the danger. Still, recognizing that one size does not fit all, the self defense laws were flexibly applied: Deadly force was justifiable if retreat was futile. Different rules prevailed in one’s home. The crime was no longer defined in terms of what a “reasonable man” might do. More and more the law took into account the circumstances of women, even battered women.
This wasn’t good enough for Florida. The new bill allows resort to deadly force when the shooter believes he has to do so to prevent “imminent death or great bodily harm.” While his belief has to be “reasonable,” he doesn’t have to bother to try to avoid the danger. Sadly, shooting can be his first reaction, not his last. There is one exception, however, where the shooter “initially provokes the use of force against himself or herself.”
From the facts that have been publicly released, which are changing by the minute, Zimmerman ‘s conduct was not justified even by the Act. In the first 911 tape, Zimmerman obviously did not believe he was in imminent danger. He called on the police non emergency line. The police listened to his – perhaps racist ramblings – and told him to meet them at the front of the gated community and not to follow the man he was worried about. He did not listen. He followed Trayvon.
The only question is what happened when Zimmerman and Trayvon met face to face. Someone is plaintively shouting “help!” Zimmerman claims that it is his voice; Trayvon’s mother says that it’s her son’s. And Trayvon’s girlfriend recounts his call to her moments before his death – his fear about being followed by a white man for no reason.
Zimmerman, through his counsel, tells a different story. Just as Zimmerman knew precisely what to say when he called 911, he knew what to say under “Stand Your Ground” : He was getting back into his car when Trayvon attacked him, punched him and continued to beat him even after he was on the ground. His nose was broken, although he did not seek medical attention. News reports suggest that there is at least one witness who supports this account. (Of course, it is not clear who else was interviewed, how far the police probed Zimmerman’s story.)
Zimmerman’s version is supposedly what keeps the police from arresting him. In a provision of this law literally called “immunity from criminal prosecution,” police are directed not to arrest the person using force unless there is probable cause to believe that the force that was used was unlawful, whether it was self defense under the law. In most jurisdictions, the use of deadly force resulting in the death of an unarmed man – without more – would be enough for an arrest. Whether the shooter claimed self defense would be sorted out later at trial.
Nothing prevents the Sanford police from critically evaluating Zimmerman’s account, as police do in so many situations, and concluding that it was contradicted by the girlfriend’s account, by 911 tapes of other bystanders shortly before the killing, that it makes no sense for Martin to start a fight since Zimmerman obviously had a gun in a holster, was substantially larger than Martin, since the encounter took place close to where Martin was staying and he was moments away from safety.
But even if Martin punched Zimmerman - punching doesn't justify killing, a broken nose doesn't justify a death, even under Florida’s law. If that’s “reasonable fear of great bodily harm,” gang members will easily justify their use of lethal force; even bar room brawls will lawfully become shootings.
So the reason Zimmerman is not being arrested is not the law, however deficient. It is a judgment call by the Sanford, Florida, police. Would they have made the same call if the victim had been white and the aggressor black?
Nancy Gertner, a retired US District Court judge, is a professor at Harvard Law School.