We self-defenders are expected to behave like reasonable people. The Founders entrusted us to wield enormous power — indeed, the power to inflict death — in exchange for our commitment to be honorable stewards of that power (unlike the King). That’s all well and good, but let’s not kid ourselves. There are practical difficulties in judging people’s actions by “the wondrously unrealistic perfectionism of this odious standard-bearer who stands as a monument in our tort law.” Newman v. Maricopa County, 808 P.2d 1253, 1259 (Ariz. Ct. App. 1991) (Gerber, P.J., dissenting).
Beyond being inconveniently unrealistic, the Reasonable Person is also a bit of an oxymoron. It attempts to universalize and objectify what is by definition a uniquely individual, even isolated experience. The concept of reasonableness is necessarily fluid, subjective, and dependent upon an infinite number of external factors, many of which are themselves fluid, subjective, and dependent on other factors, and on and on.
Because of these dynamics, I suspect that within most (if not all) Good Guys are two feuding factions: the Primordial Instinct and the Reasonable Person. It’s essentially heart versus head. This internal conflict took center stage in Paul Haggis’ 2004 drama, Crash:
In a recent Fourth Amendment opinion from the Supreme Court of Wisconsin, the issue was whether a person in a car would feel “free to leave” once a uniformed officer knocked on the car window. The majority answered the question in the affirmative (and accordingly found no seizure). The dissenting Chief Justice countered that it’s decidedly unreasonable to abscond when an officer summons you, because doing so would invoke even more suspicion and greatly exacerbate the police encounter. She explained:
Courts across the country have divided when confronted with facts substantially similar to the ones in the instant case. Why? Because courts engage in a fiction in determining whether the mythical reasonable person in the position of the defendant would have believed that he or she was not free to leave.
County of Grant v. Vogt, No. 2012AP1812; 2014 WL 3557657, at *15, ¶70 (Wis. July 18, 2014), Abrahamson, C.J., dissenting.
Wait, what? So the Reasonable Person is a figment of our imagination? Yep. I know you fancy yourself a reasonable chap, but that dude exists nowhere in the natural world. How could that be? Take a look at Footnote 4 from the Newman case cited earlier (page 508) for a hilarious snippet from A.P. Herbert’s famous satire, Uncommon Law, which exposes the Reasonable Person for the fraud the he/she/it really is.
So should we toss out the Reasonable Person standard? Of course not. But we do need to apply it with our eyes open. Just like the First Amendment doesn’t authorize anyone to yell fire in a crowded theater, the Second Amendment doesn’t authorize anyone to inflict death based upon an “inchoate and unparticularized suspicion or ‘hunch…’ ” Terry v. Ohio, 392 U.S. 1, 27 (1968) (applying the standard to an investigative police stop).
As I said in Part 1 of this series of posts, it is perfectly reasonable IMHO to resort to deadly force in self-defense if someone is bashing your head against the pavement (assuming of course that is in fact what happened). In that sense, I have no problem with the Zimmerman verdict. But that’s the easy part.
The more difficult question for me is whether this encounter was more broadly attributable to Trayvon Martin’s attack or to George Zimmerman’s imprudent handling of an “inchoate and unparticularized suspicion or hunch.” Remember, this was the observation that prompted the encounter in the first place:
Hey we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy, uh, it’s Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around, looking about…. Something’s wrong with him….
When my nephew asks whether it’s safe for him to walk to the store, he is actually interrogating the “Reasonable Person” standard, as applied both to him and to the people he encounters on any given day. “Am I automatically suspicious if I walk through a neighborhood alone in the rain? Does that mean something’s wrong with me? What can I do differently in order to not be suspicious? If someone is staring at me and talking on the phone, should I just ignore him? But what if he’s plotting to come after me? If he gives me an uneasy feeling, shouldn’t I just leave? But when Trayvon did that it made things worse, because the guy followed him. So what if I’m being followed by somebody that makes me nervous? Should I just run faster? Should I hide? Should I knock on a neighbor’s door? But then what if the neighbor is afraid of me or thinks I’m suspicious? And what if the guy catches me? Should I just stop running and confront him? If I do, what then? What if we start arguing and a fight breaks out? What should I do, TT? What should I do???” He calls me TT.
Still not done. More later. As I said, chunks at a time….