Thursday, March 22, 2012

Self Defense and the Law

One night back in 2000 I was awoken in the middle of the night by a scratching sound coming from the bedroom window.  I opened my eyes and saw a man silhouetted against the moonlight.  To get there he had to squeeze between the apartment building and the five-foot tall hedges planted a few inches away.

My wife and infant daughter were in the next room.  I rolled out of bed and keyed the combination into the small safe next to the bed.  It only took a couple of seconds to retrieve the Glock semiautomatic pistol stored inside the safe.  As I pointed the muzzle at the man on the other side of the window I remember noticing how brightly the tritium sights glowed in the darkness.

“This is it”, I thought to myself, “If he breaks the glass I’m going to shoot him.”  I remember feeling almost nauseated, even though my hands were steady.  I’m lucky in that way, I always get the shakes after the emergency is over.  Fortunately for the both of us, the man moved away from the window.  As I lowered the pistol I finally noticed the loud shouting coming through the interior walls from the unit next to us, including threats of violence.  I did what every rational person should do, I called the police.

I’m fairly certain the man in the window was another tenant of the apartment trying to figure out where the shouting was coming from by squeezing along the building until he found the right window.  I never saw his face and I don’t believe he saw me pointing a gun at him.  He was stupid and almost paid for his stupidity with his life.

I bring this up in light of the fatal shooting of Trayvon Martin by George Zimmerman in Sanford, FL.  The local PD initially ruled it a justifiable homicide, based upon Florida’s “stand your ground” statute.  Further investigation revealed troubling details about Mr. Zimmerman’s actions just prior to the shooting that cast doubt upon the justifiable nature of the homicide.  Mr. Zimmerman has not yet been arrested or charged but I wouldn’t be surprised to see an indictment for at least second degree murder.

It appears to me that Mr. Zimmerman validated the axiom that people who go looking for trouble can usually find it.  He ignored three fundamental pieces of common law that determine whether a homicide is justified or murder.

1)     Standard of care:  The law recognizes that citizens who decide to go armed should be held to a higher standard of care in their personal behavior.  If I instigate or escalate a confrontation that results in me using deadly force against another, I have forfeited the mantle of innocence for my motivation.  The “stand your ground” law does not mitigate this.  The defender must be completely innocent of responsibility for whatever attack led to the use of deadly force.  This means the defender cannot respond to insults with insults or vulgarity and cannot lose his or her temper during the confrontation.

2)     Duty to retreat:  Prior to the passage of “stand your ground” there was an expectation that the defender was required to retreat from the attacker, assuming that such a retreat did not compromise the safety of the defender or another innocent party.  The classic example of the duty to retreat is the driver stopped at a red light or stop sign who is assaulted by a man with a knife or a baseball bat.  If the driver could drive away without putting himself at risk, the law expected him to do so.

“Stand your ground” laws came about because unethical prosecutors applied an unreasonable standard to the duty to retreat and prosecuted innocent people who were only trying to defend themselves.  Now we have the opposite problem; people using the color of law to avoid the consequences of committing murder.  Mr. Zimmerman chose to exit his car prior to the shooting and this placed him in close proximity to Mr. Martin.  Even if Mr. Zimmerman’s claims are true, his decision was tactically and ethically stupid.  Unlike a sworn police officer, he was under no requirement to challenge Mr. Martin even if the young man had been committing a crime.  He chose to place himself in the confrontation under circumstances that cast doubt upon his motivations.

Mr. Zimmerman will probably get to be a test case to the degree of immunity from prosecution that the law provides.  I’m betting he won’t like the answer.

3)     Reasonable degree of force:  I’m a large man and I would probably have difficulty justifying using a gun to defend myself against the unarmed attacks of another man my size or smaller.  If I were a tiny woman, that equation would change.  Justifiable use of deadly force requires that the defender reasonably believe that he, she, or another is in immediate danger of death or serious injury.  This is a sliding scale that factors in the capabilities of the attacker and the capabilities of the defender.  It also factors in what the defender could reasonably believe at the time of the attack.

In my story if the man had stumbled and fell against the window, breaking the glass, I probably would have been justified in shooting him.  Even though he did not intend to harm me or my family, I could not know that at the time and my perception of a midnight home invasion would have been reasonable under the circumstances.

There is no evidence that Mr. Martin was armed at the time of the attack.  So according to Mr. Zimmerman we have a situation where a lone unarmed man attacked him.  Mr. Zimmerman apparently felt confident enough in his ability to protect himself to take on the role of captain of his neighborhood watch.  I don’t know if he equipped himself with a less-than-lethal means of self-defense, but the reasonableness of his decision to open fire appears problematic to me.

I’ve been lawfully armed in public for almost twenty years.  The incident at the bedroom window is the only time I have ever pointed a loaded gun at another person.  I have made it a point to obtain training in the justifiable use of deadly force.  I exercise a great degree of care in avoiding situations that could result in confrontations not because I am afraid of the people around me but because I recognize that my actions will be judged in the harsh light of perfect hindsight by people who can only guess at my state of mind and intentions.  I still carry a large general liability insurance policy because I recognize that circumstances may result in that bullet costing me and my family hundreds of thousands of dollars even if no criminal charges are levied.

I accept the responsibilities that my decision to go armed entails.  It is a social compact that I make with legal system and I personally believe that it is a duty of citizenship.  I don’t consider myself to be a vigilante or some sort of volunteer police officer.  I think the concept of a citizen’s arrest is extremely dangerous and best left alone.  So it pisses me off to see people like Mr. Zimmerman appear to cavalierly dismiss the duties that going armed require.  I refuse to be associated with people like that and I hope that the legal system works as it should in these cases.  If a jury acquits Mr. Zimmerman then I will accept that as a decision of those better informed than I am of the details.  But I do not believe that Mr. Zimmerman acted under the color of the law when he shot Mr. Martin.

/rant off/        

1 comment:

  1. I am not in favor of handguns, but if everyone was as responsible as you, I think the issue wouldn't be as heated as it has become. Thanks for your summary. It provided a fair and balanced report on a terrible incident connected to a controversial law.