Two Thoughts about the Trayvon Martin/George Zimmerman Case

George Zimmerman, a neighborhood watch volunteer in Sanford, Florida, recently shot and killed Trayvon Martin, an unarmed black 17-year-old who was walking through Zimmerman’s neighborhood. Martin was returning from a convenience store to the home of his father’s fiancee. The shooting has been in the news so much, and has stirred such strong emotions, that I am reluctant to wade into it, but the case raises at least two interesting legal issues. I’ll start by noting that there are two competing narratives about what happened. Those who believe that Zimmerman was a vigilante who approached, assaulted, and then shot Martin emphasize (1) that Zimmerman contacted police upon seeing Martin, then, even though the dispatcher told him that “we don’t need you to do that,” chose to follow Martin, (2) that Martin was talking on his cell phone to his girlfriend, and told her that he was being followed and that he was afraid, and (3) that Martin carried nothing more threatening than a bag of Skittles. ABC News has a story here that confirms most of those facts. However, the Sanford police did not charge Zimmerman with a crime, apparently accepting Zimmerman’s very different version of events. The New York Times reports here that Zimmerman told the police after the shooting that he had failed to locate Martin and was returning to his vehicle when Martin confronted him, punched him, and then repeatedly slammed his head into the sidewalk. There is at least some evidence corroborating Zimmerman’s claims. The Orlando Sentinel reports here that a witness “told police he saw Zimmerman on the ground with [Martin] on top, pounding him,” and that Zimmerman was crying for help. Zimmerman’s lawyer says that Zimmerman suffered a broken nose. Paramedics treated Zimmerman at the scene of the incident, though Zimmerman declined to go to the hospital. A police report states that the back of Zimmerman’s clothes were wet and stained as if he had been struggling on his back on the ground. I don’t know enough about the case to have an opinion about which narrative is more plausible. The case is being investigated by a Florida grand jury, so perhaps we will have more information soon. However, the case did get me thinking about the following legal issues.

1. The significance of stand your ground laws. The Martin/Zimmerman case has led to a tremendous amount of discussion about Florida’s stand your ground law, which allows a person who is threatened with deadly force to respond with deadly force without a duty to retreat. A few examples of criticism of the law spurred by this case are here, here, and here. North Carolina now has a similar statute, as my colleague John Rubin discussed here. But it’s pretty clear that this case has nothing to do with whether Zimmerman could stand his ground or had a duty to retreat. If the vigilante version of the facts is true, then Zimmerman was the aggressor, didn't face a deadly threat, and can’t claim self-defense even under the stand your ground law. If Zimmerman’s version of the facts is true, he was on the ground getting a brutal beating, and had no opportunity to retreat. For a more detailed analysis along the same lines, see Professor David Kopel’s discussion here. More generally, I suspect that the impact of stand your ground laws is quite limited, for two reasons. First, such laws apply only when a person is threatened with deadly force, and it is usually not possible to retreat safely from situations in which deadly force is being threatened, so the laws apply to a small universe of cases. Second, even before the recent wave of statutory stand your ground laws, often accompanied by expanded gun rights, most states rejected a duty to retreat. John’s prior post suggests that North Carolina generally did not impose a duty to retreat.
2. Should affirmative defenses be considered when determining probable cause? When I teach new magistrates about making probable cause determinations, I generally teach them to disregard possible defenses unless a defense is a slam dunk. My reasoning has been (1) that the burden is on the defendant to establish an affirmative defense, (2) that he or she will have an opportunity to do so in court, and (3) that magistrates generally are not trained in the law of affirmative defenses. But the police in the Zimmerman case declined to arrest Zimmerman because they concluded that he was protected by an affirmative defense, namely, self defense. And law professor Eugene Volokh argues here that officers were correct to consider the defense, as probable cause “should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed.” That got me thinking further about how strong the evidence of an affirmative defense needs to be before an officer or a magistrate may or must consider it. I went looking for case law. I didn’t find anything in North Carolina, and cases elsewhere don’t quite agree. Here is what I found:

• Holman v. City of York, 564 F.3d 225 (3^rd Cir. 2009) (holding that an arresting officer was not required to consider the defense of necessity when assessing probable cause for trespass because that would present “daunting issues . . . [and] countless factual permutations,” and citing a previous case reaching a similar conclusion about the statute of limitations defense; the court stopped short of holding that officers need never consider affirmative defenses)
• Fridley v. Horrighs, 291 F.3d 867 (6^th Cir. 2002) (summarizing Sixth Circuit law as precluding arrest when an officer conclusively knows that an affirmative defense applies to a suspect’s conduct, though officers are not required to investigate possible affirmative defenses)
• Pickens v. Hollowell, 59 F.3d 1203 (11^th Cir. 1995) (“[P]olice officers have no responsibility to determine the viability of a statute of limitations defense when executing a valid arrest warrant. The existence of a statute of limitations bar is a legal question that is appropriately evaluated by the district attorney or by a court after a prosecution is begun, not by police officers executing an arrest warrant.”)
• State v. Reid, 988 P.2d 1038 (Wash. Ct. App. 1999) (stating that “[a]t the time of arrest, the officer cannot know and it would be unreasonable to require him to estimate the likelihood of success of a potential affirmative defense,” that “an affirmative defense is properly a matter for the ultimate trier of fact,” and that therefore a court may not consider affirmative defenses when assessing the legality of an arrest in the context of a motion to suppress, and citing similar cases from two other states)

I’m inclined to stick to the idea that affirmative defenses shouldn’t be considered unless they’re slam dunks, which seems to be pretty close to what Fridley says. But I’m open to persuasion, so let me know  if you're aware of additional authority or think I've got it wrong.