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….
19 comments on “The Zimmerman Conundrum … Part 2”
I use the Zimmerman case extensively during our presentations for a number of lessons. First, never be more bold just because you are carrying. I suspicion Zimmerman would never have gotten out of his car following a “suspicious” man unarmed. Second, unless there is an immediate threat of death or great bodily harm to a person, do not intercede. Let 9-1-1 and the insurance companies handle it. Third, you will almost always be prosecuted and persecuted for shooting an unarmed man. Yes, the element of “ability” can be satisfied by disparity of physical size, strength, age, sex, or physical position. But the practical reality is that shooting an unarmed man is instinctively frowned upon and will result in legal trouble. Fourth, Zimmerman indicates the lengths that the authorities will search to find “provocation”. Getting out of the car was imprudent but perfectly legal. Nonetheless, the prosecutor tried very hard to disqualify the use of deadly force for that reason. The lesson to learn is that in order to preserve the deadly force option, you must be a model citizen and above all reproach. Finally, Zimmerman clearly exemplifies how everything after the use of deadly force is bad and that it is a life changing event for the worse. Prosecution, civil suit, loss of job, divorce, and extensive vilification. Avoid if at all possible!
Another thought, Trayvon’s world (as I understand from following the trial) was a heavily testosterone influenced environment, any perceived challenge is met by achieving immediate physical dominance or being viewed and less than a man. When he realized he was being followed, he had a limited problem solving skill set to work with. Z had no idea how his following Trayvon would be interpreted and was unaware what he was walking into when he decided to leave cover (worst choice he could have made IMHO) and follow on foot. Once the fight was joined, Z was the one with limited options. This case truly fits the classical definition of tragedy.
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.”
Why was GZ’s handling of the initial observation “imprudent”?
He did what everyone is told to do – “when you see something, say something”. He called 911.
@ MIke, Being a “neighborhood busybody” is kind of the definition of a “neighborhood watch group”.
Hey, KM. Consider this alternative. I once called police on a person walking around my neighborhood who I considered to be suspicious (because he was carrying a hot pink backpack that ten minutes earlier had been sitting on my neighbor’s porch, accidentally left outside by her daughter). I was in my car; he was on foot. He noticed me watching him while I was on the phone with dispatch, and he picked up the pace in an effort to get away from me. He ducked in between buildings and avoided the drivable routes. I just tried to keep up with him as well as I could from my car, from a distance. Eventually I spotted him again, and when the police arrived, I pointed him out, they took off after him, and I went home. Never once did I ever consider abandoning my motorized 360-degree cover to pursue him on foot. I didn’t get killed, and I didn’t have to shoot anyone, thankfully.
I like your outcome better, who wouldn’t?
And how in He!! did you actually get the police to respond to a thief w/backpack call.
Must have been a slow night. (or a small city)
Around here you’re lucky to even get a cop to show up if your vehicle window was broken and EVERYTHING is gone. They just take the report over the phone.
Ha! Slow night indeed!
True to a point but I also think they’re told to not do anything that would endanger themselves or others. And if the cops in Tiffany’s town ever have a slow night, I’m not sure they will know how to act. I don’t anything Z did was from malice but there are ways he could have handled it differently/better, such as having a flashlight.
“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? …”
The easiest deescalation in the world: Smile and wave. Acknowledge them, act calm and friendly, but continue going about your business. So what if they call the cops? Smile and waive at them, too.
Good advice. 🙂
One of the thing I (and many other instructors) teach is to be a good witness instead of acting in situation where we and ours aren’t imminently threatened. Z was apparently the neighborhood busybody and was (according to him) trying to be that witness when he followed M. Did it concern/scare M that he was followed, possibly. As you mentioned, we are products of our upbringing and environment and I’d bet that Z and M would both say they were acting reasonably before the confrontation. And as JTC so aptly put it, this is one of those cases you have to look at least 2 parts.
The key element in this portion of your commentary is the separation of a “suspicious acting subject” which resulted in observation, following, and police contact, and the subject reacting to being observed and followed with a life-threatening physical attack (and indeed that is what happened in the opinion of most observers and most importantly, was proven to the satisfaction of the jury) which resulted in deadly defense.
Should Z have continued following, and most especially should he have ignored the advice of the dispatcher and left his vehicle? My opinion and commentary on that, and the escalation that followed, and the lessons to be learned by other legally armed individuals, is found peppered throughout the comments in Ayoob’s series, and was never adequately addressed by him IMO.
Still, the first action of Z (observing, following, reporting), and the second (deadly defense) are separate responses to the actions of M. Might different responses to the former have made the latter response unnecessary? Probably. That is a lesson I’ll bet Z learned well, even if some observers as experienced as Mas do not fully accept it.
But ill-advised non-physical behavior and ill-advised non-physical, even hateful, speech and verbal attack, never ever justify a physical response. And that is the lesson I hope your nephews will learn from this incident; their lives could very well depend on it.
I hope so too! And I think you’re right about there being two sets of actions by Zimmerman, each deserving its own analysis. Thanks, JTC!
Actually, two sets of actions by Martin, and two sets of reactions by Zimmerman. And that distinction is key.
As to lessons learned, I was trying to gently imply that you seemed to take the reaction of your oldest nephew (he “unleashed” on another kid) to the action of the other kid (racially charged taunts) rather casually.
In school that reaction might get him suspended; on the street it might get him killed.
Hey JTC! Don’t worry, we didn’t treat it casually. Although amongst ourselves we (the adults) did privately share our collective anger that my nephew had endured an undeservedly torturous school year, we were equally united in emphasizing to him that he was wrong to strike that blow.
An additional fact that I left out of the story was that Malik hit this kid after the kid had struck Malik in the face with a hard elbow during basketball — after Malik had walked away from the initial verbal exchange. No one denied the elbow, but the kid said it was accidental whereas Malik was sure it was intentional. We weren’t there and couldn’t know for sure, so we just stuck with the facts that were undisputed and admonished Malik that he is not to hit people at all unless he is defending against a present physical attack. But his parents (and I) do not tolerate fighting or suspensions for any reason, and rest assured he knows that.
I am the first to admit that the Zimmerman case digs at me, emotionally. I often have to catch myself before I get overwhelmed. I think one advantage that I have over others who have detrimentally stoked the flames of this case is that I do at least realize that my emotions run high and I realize that the value of my judgment is inversely proportional to the height of my emotions. So I do the best I can to check myself, and when I start feeling the temperature rise, I shut up… because that’s when people say dumb stuff and make things worse.
By the way, thank you for being gentle. My hearing tends to improve a lot when people speak gently. 🙂
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