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The Zimmerman Case – Addressing the Tough Underlying Issue

13.07.2013 - 15:11

But such things have happened many times in the past, and are almost certain to occur many times in the future, because of a policy choice which favors and protects the defendant when mistakes are made, as they inevitably are in many self defense situations, says public interest law professor John Banzhaf, who was involved in one of the best known examples of the successful use of the doctrine of self defense.

There are many well known situations of shootings of unarmed teens, including three which – similar to Zimmerman – were cross-racial, there was no initial prosecution, and where the legal doctrine of self defense was accepted.

# In an eerily similar parallel, a Japanese exchange student on his way to a party accidentally approached the wrong house, and was shot to death by the white homeowner when – because of a truly tragic misunderstanding – he failed to heed a call to "freeze." The shooter was initially released and only charged because of public pressure. After a seven day trial, he was found not guilty because of self defense.

# In the "Subway Shooter" case, a white man asked for money by several black youths in a NYC subway car shot all four of them. He had previously helped apprehend another youth who had attempted a robbery, and was angered by the short sentence handed down. Initially the grand jury refused to indict and, when he was subsequently charged because of public pressure, he was found to have acted in self defense.

# In the "Jacuzzi Gunman" case, Carl Rowan, a well known black author and champion of gun control, nevertheless shot an unarmed white youth who was in his backyard swimming, and wearing either nothing or just his wet underwear. Rowan was never even charged for the shooting.

In each of these situations, and in many other similar cases where teens or sometimes adults were shot, many would concede that the shooter made an often fatal mistake: either mistakenly believing that there was a serious threat when in fact there wasn’t, and/or that the use of deadly force was the only reasonable alternative under the circumstances. Yet, in each situation, the defense of self defense was nevertheless valid.

The reason is that, in many situations in which there may appear to be a serious threat, the subject must decide what to do very quickly, and under tremendous emotional pressure. Thus, as the Supreme Court recognized many years ago: “Detached reflection cannot be demanded in the presence of an uplifted knife.” In other words, mistakes will frequently occur, and we must expect them to occur.

Interestingly, rather than holding a defendant criminally or even civilly liable if he used deadly force in the mistaken belief that there was a threat and that such force was necessary, the law of virtually every Western country says that the defense still applies, even if the defendant made a serious grave mistake.

In other words, the fact that the defendant made a mistake in deciding to use deadly force does not destroy the privilege, even if it results in the death of someone who is completely innocent.

In many other situations, a defendant will be held liable if he made a mistake, even a very reasonable one. A well known example occurs where a man engages in consensual sex with a female who may appear and act as if she is over the age of consent, but in fact is not. Such “strict liability” crimes are punished, even if the defendant acted only because of a mistake which is clearly reasonable. Perhaps that’s because the statutory rapist did not have to engage in sex at all, and did have time of verify his assumptions about age.

But in many cases of self defense, the subject must act very quickly to avoid imminent serious harm to himself, so not acting – or taking additional time to obtain more information to verify his assumptions – just isn’t an option. Moreover, the huge emotional stress of facing an apparent threat to his life, and to act almost immediately, substantially increases the odds that mistakes – even fatal ones – will be made.

So, unlike statutory rape, the sale of alcohol to minors, violation of certain health, safety, and anti-pollution regulations and other strict liability offenses, where even a reasonable mistake does not excuse the crime, the privilege of self defense provides complete protection for any conviction even if the actor made a mistake – provided only that the mistake was not an unreasonable one.

So here it is certainly possible that Martin’s actions may have led Zimmerman to believe that his life was in imminent danger, even if Martin in fact did not present such a serious immediate threat.

It is also possible that, having entertained that concern – even if it was not in fact true – Zimmerman made a mistake in shooting precipitously rather than pursuing other alternatives like verbally surrendering, fighting back somewhat harder, displaying the gun and warning Martin to back off, etc.

In each case, jurors might conclude that he made a mistake, and that Zimmerman’s mistake(s) was the cause of Martin’s death, and yet he would not be guilty of any crime unless the jury also found that his mistake(s) was completely unreasonable.

Moreover, since the burden of proof lies heavily on the prosecution, the jury should acquit Zimmerman of all charges even if it tends to believe that Zimmerman acted unreasonably, but entertains any doubt about whether his belief was reasonable or not reasonable. In both the Japanese student situation and the Subway Shooter situation, a jury found the defendants liable in civil proceedings for damages, yet not guilty in criminal proceedings for exactly the same events.

Although other factors were also in play, one explanation for the difference would be that, in each case, jurors found that the defendant has not shown that his mistake was reasonable to the evidentiary standard of “preponderance of the evidence,” whereas the prosecution had not shown to the much higher standard of “beyond a reasonable doubt” that the mistake was not a reasonable one.

“It’s inevitable that there will be mistakes made in situations where one person suddenly feels threatened by another. For reasons of policy dating back to the middle ages, and seemingly common to most western countries, we nevertheless excuse the defendant even though he made a mistake, unless the prosecutors can show beyond any reasonable doubt that the mistake he made was not reasonable,” says Banzhaf.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf