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Trayvon Martin and George Zimmerman:  A Duty to Retreat v. Stand Your Ground


Crimcast is a virtual resource devoted to critical conversations about criminology and criminal justice issues. Our blogposts, twitter feeds, podcasts and other content provide an overview of trends, research, commentary and events of interest to criminal justice practitioners, academics and the general public. CrimCast is sponsored by The Center for Crime and Popular Culture, St. Francis College, Brooklyn, NY.

Trayvon Martin and George Zimmerman:  A Duty to Retreat v. Stand Your Ground

Nickie Phillips

Post by Demetra M. Pappas, JD, MSc, PhD This past week, I, along with the rest of the country, found myself transfixed (and more than a little outraged) by the acquittal of George Zimmerman in what many still call the Trayvon Martin Case, notwithstanding the convention that criminal prosecutions are denominated People (or State) against Defendant.  I was taken, for the second time, by President Barack Obama’s moving commentary in this regard. Last year, he referred to Trayvon as “America’s son.” This week, Obama went on television, unannounced, and spoke movingly about himself being racially profiled 35 years ago, then amended the time frame to include generally prior to his becoming a senator (as an aside, I met a successful lawyer in Minnesota some years ago, who, after a run near his upscale lake front property, was fishing in his sock for his key, when police interrupted him and questioned him, signaling that Obama is correct that this experience was more common than not).  In the past week, I have also seen Trayvon Martin’s parents interviewed by Barbara Walters and that they spoke with quiet dignity (in the presence of their lawyer, and whether coached or not) brought tears to my eyes.

Now might be a good moment for me to say that I don’t care a bit whether Trayvon had a history with marijuana, or was out of place in the place where he was shot and killed (whatever your political or legal position, the inalterable fact is that Martin was shot and died of the gunshot wound).   Indeed, the last case I tried before taking a judicial appellate clerkship and then in turn going back to school for a Masters and PhD was a gun possession case in which my client (for whom I secured an acquittal after trial) was charged with gun possession; his defense was “temporary lawful possession,” i.e., that he wrested the gun away and disarmed a person who tried to rob him of admittedly ill-gotten gambling winnings in a crack house (I note my African American client was over 6 feet and muscular, the would-be robber a tiny little woman of my height, reinforcing the fact that a gun is a great equalizer, here, where my client who had dozens of non-violent petty theft and drug offenses, but nothing involving weapons or guns). In other words, I do, however, very much care that George Zimmerman had a gun in his possession, and am firmly of the belief that the mere possession of the lethal weapon by definition escalated the events of the day. Think about it, if Zimmerman had a knife on him, a switchblade as did the innocent “other” wrongly accused in 12 Angry Men (1957) of Italian or Spanish origin, in a non-Brooklyn and non-Spanish-is-the-second-language-of-America-setting, Martin may well be alive today. One might have been injured (and perhaps even mortally), but a gun exponentially escalates.

Before I make a legally related commentary, I point to a personal one. In 1991/1992, I did a Masters in Criminal Justice Policy at the London School of Economics, before which I had been a criminal trial and appeals lawyer, and a judicial appeals clerk. The third week of school, I was assigned to present a seminar paper on policing. As the resident “Yank” in the program, I expressed my dismay that police were unarmed (with the exception of a small elite team of what was called, simply, Gun Police).  My supervisor, Professor Robert Reiner, the Dean of Policing in the  United Kingdom, listened to my otherwise not controversial presentation benevolently, then asked me (in the nicest of ways) for the murder statistics of New York City the year before. The number I had was 2,262. I was then told (in the nicest of ways) that the number of homicides in the United Kingdom (read, England plus Scotland, plus Wales plus Northern Ireland) in 1990 was less than 600. A reason largely credited for the disparity of rates (greater New York, about 10 million people, the United Kingdom, about 60 million people, making the numbers even more starkly divergent) was the then-lack of guns. Off I went to read that Sir Robert Mark, who served for 5 years in the 1970s as the Commissioner of the Metropolitan Police (after a turn as Chief Constable of Leicester), wrote that a police officer’s greatest weapon was his mouth (his was in the original, I assume that today, Sir Robert would say “his or her”).  While I don’t remember the name of the book, I remember it was red, threadbare, and contained this most influential quote (at least for me, perhaps folks in the UK took it as a given). I can only wonder what a “mouthy” confrontation would have resulted in – perhaps a fistfight, perhaps a flight, certainly not a death.

While I frequently do not give my personal views on controversial topics (indeed, Janet Pinkley, who authored the first review of my first book, entitled, The Euthanasia/Assisted Suicide Debate, earlier this year, gave plaudits for my presentation of arguments and sides, without taking a side in this polarizing debate), I am giving an opinion in this piece. I am not a fan of allowing civilians to carry guns. When I teach, I make the self-mocking comment that any New Yorker who has been cut off in traffic is a reason why guns should not be allowed. More seriously, a gun can (usually easily) be turned against even the most righteous and lawfully possessing would-be victim of a crime.  I absolutely believe that if George Zimmerman had not had a gun that fateful February night, both he and Trayvon Martin would likely be alive today – perhaps scarred, but alive.  Trayvon Martin could have retreated from an altercation that George Zimmerman should never have provoked. They could have engaged in fisticuffs. And so on.

Thus, this reminded me of another case, of gun possession past, that of Bernhard Goetz.  With Zimmerman, rather than stand your ground (which I think is a dreadful departure from the historic duty of safe retreat principle, and invites shootings by people who should not necessarily have a gun in the first place), a central theory in the Zimmerman trial was that the shooting was in self-defense while Trayvon was on top of him after an altercation.  In Zimmerman’s claim of self-defense, I am recollecting the New York case of Bernhard Goetz, 68 N.Y.2d 96, 497 N.E.2d 41, 73 A.L.R.4th 971, 55 USLW 2107 (N.Y., 1986), who shot would be muggers (one of whom approached Goetz on the subway and asked for $5.00) who possessed screwdrivers (which could as easily be used as weapons as for malicious mischief). One of the alleged  would-be muggers was paralyzed for life. Goetz was not convicted of murder or assault, but was convicted of gun possession.  Goetz, the victim of prior muggings, may have set up the subway confrontation, in an area of the Bronx where a man of his fair complexion was perhaps as out-of-place as Martin may have been in the gated community where he died. I decline to accept a theory of victim precipitation as to mugging or as to walking in a neighborhood other than one’s own. Skin tone should not be a reason to mug, follow, or create circumstances where a shooter, licensed or not, provokes a shooting.  The New York Court of Appeals in Goetz held that it would be dangerous to use an entirely subjective test to determine whether the use of deadly force is appropriate, whether there was an imminently dangerous situation requiring it;  the court went on to hold that if a reasonable person under the circumstances would have felt himself in imminent danger of serious physical  injury or death, then there was a possible defense.  A jury, trying the case on remand, found Goetz Not Guilty of all charges, save that of  Criminal Possession of a Weapon, for which Goetz ultimately served eight months of a one-year sentence.  However, in a related civil proceeding, would-be potential mugger Darrell Cabey, found a different result. The jury found in favor of Cabey and awarded him the sum of $18,000,000 in compensatory damages and $25,000,000 in punitive damages.

Zimmerman was in quite a different circumstance than Goetz was. He followed Trayvon Martin. He disregarded a 911 dispatch instruction to remain in his car and let the police attend to the business at hand (assuming that there was any criminal mischief afoot, not a given with Trayvon Martin). He brought a gun. He initiated a confrontation.  He did not even have the duty of retreat matter to consider, since he was the aggressor.

As with the objective/subjective issue presented in Goetz, Zimmerman brought a gun to what was not even a knife (or screwdriver) fight, to paraphrase the classic 1987 movie, The Untouchables, in which Sean Connery’s beat cop, Malone, intoned the wisdom of not bringing a knife to a gun fight.

And, as a postscript, there was a bit on the morning news today (July 23, 2013) that Zimmerman, in less than a week after his acquittal, was a good Samaritan helping a family whose vehicle had rolled over, helping them to escape. I worry that Zimmerman is already jumping into the deep end of a pool in which he should be – at the very least – reluctant to be wading, let alone swimming in.  Should the family be grateful for the assistance, certainly. Should there remain national outrage over Zimmerman’s persistence with Trayvon Martin, equally certainly.

Barack Obama’s remarks  reminded me of another African American who was mistreated and abused under pretext of policing – Rodney King. It was King himself who called for peace when the LA riots threatened to burn the place down after the verdict. Admittedly, the elite white President at the time of that verdict would not have made much of an impact (let alone a positive one) had he called for peace at the time. That we now have a tall, elegant, eloquent President (who grew up in a complicated family and culture) who happens to be African American served the American people – all the people – in his remarks.

Demetra M. Pappas, JD, MSc, PhD currently teaches in the Department of Sociology and Criminal Justice at St. Francis College, where she was named the 2012 SGA Faculty Member of the Year. Her first book, Historical Guides to Controversial Issues in America: The Euthanasia/Assisted Suicide Debate, (Greenwood Press,  2012) (100 year study of US and UK  doctors prosecuted for medical euthanasia/assisted suicide and role of media) has been nominated for the 2013 BSC Criminology Book Prize.  She has practiced trial and appellate criminal law, clerked for an appellate judge and served as a PINS mediator for the Children’s Aid Society in New York. Her last trial, People v. Williams (1991) was tried to acquittal on a theory of temporary lawful possession of a gun.