Trayvon Martin -- "Stand Your Ground" vs. "Pursue and Confront"

[Note: I've updated the discussion near the end of the post regarding burdens of proof]

There isn't much that hasn't already been said about the Trayvon Martin tragedy; at this point, even the president has weighed in. For the most part, people across the political spectrum agree that the situation should be investigated further, and it should go without saying that if George Zimmerman broke the law, he should bear the consequences.

But I want to use this post to explore the genesis of Florida's "stand your ground" law, and how that law might apply.

Let's start with the basics: historically, if you beat someone up, you were liable for battery. But you could avoid liability if were acting in self-defense -- the guy came after your first. For years, though, you would that defense if you have safely retreated from the fight. was the "duty to retreat" .

The duty to retreat itself had an exception: you did not have to retreat from, or within, your own home. So if someone broke into your house and threatened you, and you could safely retreat, you nonetheless did not have to do so; you could respond with force, up to and including deadly force. This was known as the "Castle doctrine", so called because "an Englishman's home is his castle". (Remember, most U.S. laws have their roots in English common law.)

So to recap: if you are attacked in public and can safely retreat, you must do so, but if you are attacked in your home, you can respond with deadly force, even if you can safely retreat. And that was the state of the law for hundreds of years.

But relatively recently -- first, about a hundred years ago, and then in the last ten or so years -- U.S. states have been expanding the Castle doctrine. Generally, people may respond with wherever they are. These statutes eliminate the common law duty to retreat. Florida has enacted such a law. The statute says, in relevant part, that someone "who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat". Fla. Stat. § 776.013(3).

How does that apply to Trayvon's case? (I'm assuming facts that closely to reasonable inferences that we can draw from the 911 recordings and other data, though it's important to note that we don't, and probably never will, know exactly what happened that night.)

So let's walk through the law. Obviously Zimmerman has killed Trayvon. Zimmerman will raise the defense of self-defense. The prosecutor will respond that he could and should have retreated; Zimmerman will point to Section 776.013.

Many commentators, including a sponsor of the original Florida law, have said that Section 776.013 does not give someone a right to "pursue and confront". But why not? After all, Zimmerman "ha[d] the right to be" in the gated community, and the law gives protection to someone in his vehicle. See Fla. Stat. § 776.013(1)(a).

I would focus, not on whether Zimmerman had a "right to be" in a particular area, but on two other things: first, whether was "engaged in unlawful activity" at the time of the attack, and second, whether Zimmerman "m[e]t force with force" .

Was Zimmerman engaged in unlawful activity? Trayvon's girlfriend says that she was talking to him just before the attack, and that Trayvon knew he was being followed and was trying to get away from Zimmerman. Reportedly, Zimmerman weighs 100 pounds more than Trayvon. If, by words or actions, Zimmerman created a "well-founded fear" in Trayvon and caused him to feel threatened, Zimmerman would be guilty of assault under Florida law. See Fla. Stat. § 784.011(1). Moreover, Zimmerman reportedly ignored the police's instructions not to pursue Trayvon. Florida law makes it a crime if someone "resists, obstructs, or opposes" a law enforcement officer. See Fla. Stat. § 843.01. If Zimmerman is guilty either of assault or resisting an officer, he was "engag[ing] in unlawful activity" and therefore would lose the protections of the statute.

Second, the statute only permits an individual to "meet force with force, including deadly force". But the implication is that the victim must have been the first aggressor (otherwise the "second" aggressor would be initiating force, not meeting it). For the defense to hold, Trayvon must have been the first aggressor.

So Zimmerman's defense may be much weaker than it initially appears. All of the "Stand Your Ground" discussion has assumed that the law gives people free reign to shoot someone whenever they feel threatened. Although that may be the practical effect in some cases, in this case (based on the facts as reported in the media), Zimmerman can only avail himself of the defense if (a) he was not guilty of assault or resisting an officer; and (b) Trayvon initiated the fight. As to the second point, it might be easy to say that we can never know what happened because all we have left is Zimmerman's word. And there is the added wrinkle, as described by Professor Mannheimer, that a claim of self defense gives the defendant immunity from arrest and prosecution. So the claim of self-defense cannot be tested through the usual mechanisms -- unless the police have "probable cause that the force that was used was unlawful." Fla. Stat. § 776.032. It's not clear whether "unlawful" as used in Section 776.032 (to modify "force") means the same as it does in Section 776.013 (when used to modify "activity"). It may not; after all all, resisting an officer, for example, could be "unlawful activity", but it is likely not, on these facts, "unlawful force". Assault, on the other hand, could be "unlawful activity" that does involve unlawful force.

A commenter raised a good point about my initial post; it suggested that the defendant has the burden of proof to show he was acting in self-defense. Here, I elided two important but distinct concepts, one at common law and one statutory. First, the general rule is that the defendant has the burden of raising the affirmative defense, and the prosecution has the burden of proving beyond a reasonable doubt that it does not exist. Second, and important here: that question would never come up at trial, because of the immunity described above. Therefore, immunity is decided during pretrial proceedings, at which a judge decides if the defendant is immune from prosecution because he was acting in self-defense. And on this question, the defendant must show, by a preponderance of the evidence, that he was acting in self-defense. See Dennis v. Florida, 51 So. 3d 456 (Fla. 2010) ("[W]e hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.") (emphasis added). So, although it is true that the defendant does not bear the burden of proving self-defense at trial, he bears the burden of proving (albeit by a lesser standard) that the immunity attaches.

No matter how you look at it, the Trayvon Martin story is tragic. There's no reason this young man had to lose his life, and I'm sure even George Zimmerman wishes he hadn't acted as he did. I just wanted to write to add a bit of legal nuance, and to show that the mere fact that Florida has this law in place doesn't mean it will necessarily protect George Zimmerman here.

F. Lee Bailey on Why O.J. Was Innocent

In a 46-page document, the former member of the legal "dream team" details his case for Simpson's innocence.

Briefly, from the manuscript:

This is intended to be an outline - a deliberately detailed outline supporting the proposition that the jury reached the correct verdict in the California case of People v. Orenthal James Simpson. But the outline - and the book which will someday follow - is planned to go further. When all of the facts in the case are assimilated and viewed in proper perspective, it should be clear that Simpson was not simply the beneficiary of a reasonable doubt, but in fact totally innocent of the murders of Nicole Brown Simpson and Ronald Goldman.

We have no judicial machinery capable of establishing factual innocence, or what forensic investigators might term ground truth innocence. More than half a century ago, before the infamous military Courts & Boards were abolished by the much enlightened Uniform Code of Military Justice in 1951, a court had two optional verdicts in the case of an accused who was not going to be convicted: “Not Guilty”, often said to be the equivalent of the famous Scottish Verdict “Not Proven”, or “A Complete and Honorable Acquittal”, a formal stamp of approval that said in essence, that the accused had done nothing wrong. An officer who was court martialed, and did not receive the latter form of verdict, was pretty much at the end of his career.

Check out the article for more.

An Opportunity to Clarify Atkins v. Virgina?

Maybe. As the New York Times reports:

A 44-year-man whose lawyers claim he is mentally retarded is scheduled to be executed Thursday evening in Huntsville, Tex., unless the United States Supreme Court agrees to hear his case.

The man, Bobby Wayne Woods, whose I.Q. hovers around the level of a mildly retarded person’s, was convicted of the brutal killing of an 11-year-old girl in 1997 and sentenced to death.

While the Court, in Atkins v. Virginia, 536 U.S. 304 (2002), held that executing the mentally retarded violates the Eighth Amendment prohibition on cruel and unusual punishment, state practice following the decision has--as the Times notes--been inconsistent.

We'll be sure to keep you posted on any developments in this case.

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Update: Mr. Woods was executed as scheduled.

How to Fix the Criminal Justice System - Ban Candy

Researchers at Cardiff University in the U.K. discovered an interesting correlation this week: kids who eat a lot of candy are more likely to become criminals in adulthood.

Simon Moore, one of the researchers, explains the results:

Intrigued by this association, Moore turned to the British Cohort Study, a long-term survey of 17,000 people born during a one-week period in April 1970. That study included periodic evaluations of many different aspects of the growing children's lives, such as what they ate, certain health measures and socioeconomic status. Moore plumbed the data for information on kids' diet and their later behavior: at age 10, the children were asked how much candy they consumed, and at age 34, they were questioned about whether they had been convicted of a crime. Moore's analysis suggests a correlation: 69% of people who had been convicted of a violent act by age 34 reported eating candy almost every day as youngsters; 42% of people who had not been arrested for violent behavior reported the same. 'Initially we thought this [effect] was probably due to something else," says Moore. "So we tried to control for parental permissiveness, economic status, whether the kids were urban or rural. But the result remained. We couldn't get rid of it.'

Of course, as well educated (and presumably low candy consuming) individuals, we learned long ago that correlation does not imply causation. Nonetheless, Mr. Moore believes there is a rationale behind the results:

‘The key message is that this study really raises more questions than answers,’ says Moore. One of those questions is whether sweets themselves contain compounds that promote antisocial and aggressive behavior, or whether the excessive eating of sweets represents a lack of discipline in childhood that translates to poor impulse control in adulthood. Moore is leaning toward the latter. It's possible that children who are given sweets too frequently never learn how to delay gratification - that is, they never develop enough patience to wait for things they want, leading to impulsivity in adulthood. It's also possible that children who are poorly behaved from the start tend to get more candy.

So there you have it. Avoid feeding your child a steady diet of Coke, Pop Rocks, and Candy Corn and you may just help solve California’s prison crisis.

All Things Chicago!

Mr. T gets called for duty, but doesn't make it to the panel.

The U.S. Marshal from this post was found guilty.

Cops that beat up bar patrons found not guilty.

Alleged Craigslist Killer Captured

From AP News, via Yahoo News: Suspected Craiglist Killer (and Boston U. Med Student!) apprehended, in custody.

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UPDATE (1:14 AM) A commenter wanted to know what BU's med school ranking was. It was ranked 43rd in research and N/A for Primary Care and since the denominator of your fraction (students) decreased while the numerator (non-murderers) stayed the same, I would have to say that the ratio has increased. From what and to what, I don't know...

Penn Prof. Sues for "Sham" Publication

Professor David Rudovsky of the University of Pennsylvania Law School, a Round 2 Competitor in The Blackbook's Top Law Prof. Competition, has sued West for publishing a "poorly researched 'sham' pocket part" to a Pennsylvania criminal law treatise he, with Professor Leonard Sosnov of Widener Law School, had written. According to the ABA Journal:

The professors, David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener Law School, are seeking an injunction that requires West to notify subscribers that the professors did not write the December 2008 update . . . . Unhappy customers also should be given the option of a refund, the professors say.

Given the relief requested, I wonder why it matters whether the supplementary pocket was "poorly researched" though that does add insult to injury. If nothing else, this litigation is a reminder that students are not the only ones who feel violated by greedy publishing companies.

The Government Should Avoid Practicing Unprotected Witnessing...

Today's FAD is based upon an ongoing trial visited by Yours Truly earlier today.

For those keeping track at home, U.S. Atty Patrick Fitzgerald (who is like a modern day Wyatt Earp) and his office recently concluded the Family Secrets case resulting in the destruction of one of Chicago's Mafia Families (called The Outfit). Well, during the prosecution of that case, it was learned that an officer in the Witness Protection Program was feeding the Mob information about a former mobster-turned cooperating informant. Fitzgerald's office is now prosecuting the Marshal who acted as the alleged leak. Suffice to say, this case is a really big deal. I'll keep you posted as to the end result.

A Bill "Too Gross to Talk About"

Earlier this week, the state of Oregon passed a bill that one newspaper referred to as “too gross to talk about.” What could be so gross? Before I divulge any explicit details, I recommend that those who are easily repulsed turn away now.

The proposed law makes it a second-degree sexual abuse to propel “a dangerous substance at another person.” Hmm. It appears that the legislature’s intent was to outlaw bukkake, a practice apparently popularized in Japanese pornography. We’ll spare you an explanation of what this practice entails, but the link provided will take you to a Wikipedia page that explains the "ritual."

The passing of this law stemmed from a very serious and traumatizing non-consensual incident that occurred last June. Although the new law criminalizes such non-consensual acts, it also embraces the consensual practice of this sexual conduct. Although I agree that the conduct is repulsive, is the criminalizing of sexual activity between consenting adults in the privacy of their own homes necessary? Is it even constitutional?

In Lawrence v. Texas, the Court explained that decisions by consenting adults “concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” 539 U.S. 558, 578 (2003) (quoting Bowers v. Hardwick 478 U.S. 186, 216 (2003) (Stevens, J, dissenting)). Although the practice Oregon's statute proscribes is clearly much different than that the Court held could not be restricted in Lawrence, it seems to me that the same constitutional rights are implicated. And "morality" would not overcome the scrutiny the Lawrence Court utilized.

So here's what I'm wondering: can the state of Oregon legally criminalize private sexual activity between consenting adults (notwithstanding the fact this law may be pointlessly stupid)? We would love to hear your opinion.

For more on this story, please visit boingboing.

[Ed. Note: The illustration was found here after a google search for Lawrence v. Texas]

Here Come The Judge(s)!

Via Politico: Federal judges go Judge Dredd on DOJ.

I've always been told that the lawyers in the DOJ & U.S. Attorney's offices around the nation are the creme de la creme. Many of them come from the "finest schools" and have impeccable credentials. So, Illuminati, why do you think people who are otherwise brilliant fail to exercise common sense and/or play fairly?

Don't Worry Sammy, I Struggle To Drive 55 As Well...

From Cracked.com: The 5 Laws That Don't Work.

I get confused when people equate illegality with effective implementation. Whenever something 'bad' (i.e. undesirable) happens, there seems to be a rush to try and ban the object or the action giving rise to the undesirable behavior. A perfect contemporary case in point is the rush (led in part by FoxNews, of course) to promote Salvia awareness (i.e. drive to ban the substance).

We're all lawyers/law students/citizens concerned with effective and just administration of law here. If anyone knows the strengths and weaknesses of the legal system it should be us, right? So, what do you think Illuminati: Should we continue trying to ban items resulting in undesirable behavior? What are our alternatives?

Blagojevich indicted!

As BBL's chief Midwest correspondent, it is my duty to inform you all of the following: Ex-Gov Blagojevich has been formally indicted.

Update: Death Penalty Standards Are Not "Evolving"

On March 19, Nima discussed New Mexico's repeal of the death penalty. The repeal, as he intimated, could "open up new avenues to the Supreme Court for death row inmates to argue against the constitutionality of the death penalty. . . .[because] other states follow New Mexico's lead in banning capital punishment altogether[.]" Given the majoritarian "evolving standards" jurisprudence, see Trop v. Dulles, 356 U.S. 86, 101 (1958), I thought Nima's suggestion was well-taken.

But it doesn't seem like any type of national consensus against the death penalty is really emerging. As LawDork reports, "Ohio Attorney General Rich Cordray is going in the other direction." According to Cordray, "it's a bogus argument to say the death penalty should be eliminated because cases take too long and cost too much."

That's pretty powerful language. Granted, as LawDork notes, the Attorney General's role is to defend the law of the state--regardless of what his or her views are. But I nevertheless think this reaction is interesting in light of the previous discussion, as it highlights the fact that our country may not be ready to reverse it's death penalty course . . . yet.

People Must've Taken Crazy Pills Today!

Oh, yeah, Craig? You dare challenge the Bastiat Monopoly on Ridiculous Legal-Related Articles of the Day? I'll see your breach of contract for failing to impregnate and raise it one DUI.

Is it Cruel if They Want It? What If They Need It?

Chemical castration for sex offenders?

It's Awesome Baby!

It’s the most wonderful time of the year. Yes, March Madness is upon us. On Sunday, we all gathered in unison around the television and watched as the brackets were revealed. This week we’re researching the field of 65 (as of last night, 64) teams selected and filling out our brackets. Which number one seed will be the first to lose? Who will be this year’s Cinderella? Will Dick Vitale ever stop talking about Duke? While those are undoubtedly important questions to consider, there is perhaps another question that everyone, and especially those in the legal community, should ponder: are we breaking the law?

An article I came across online asks, “Will the FBI become the real bracket buster?” I think the short answer is no. As the article rightfully notes, most small pools won’t attract the attention of the legal authorities. The chance of you being arrested for illegally gambling after filling out your $5 bracket is as remote as Radford beating North Carolina.

But, for those of us in the legal community, it is important to recognize that we gamble more than money when we enter our bracket in a pool. The general rule is NCAA Tournament pools are illegal. The aforementioned article notes, however, that as with almost all general rules, there are exceptions. If the proceeds go to charity, then you’re safe. Additionally, some states (e.g. Vermont) permit such pools as long as the organizer doesn’t take a cut. Other states (e.g. Montana) differentiate between illegal public betting and legal private betting, meaning that office and law school pools (knew I should have gone to UMT Law!) may be safe.

It should also be noted that many of us in law school join pools with friends and family back home. Gambling may occur over the phone or through the internet, which could then constitute a federal crime. Who knew filling out a bracket for an NCAA Tournament pool could be such a serious offense? It feels so right. It feels so American. What’s next, criminalizing the consumption of apple pie?

The end result is that, sadly, gambling is gambling. But, you better believe I’ll still be filling out my bracket and ponying up my hard earned $5 for a chance at being crowned champion. By the way, it’s UConn over Duke, circa ’99. You heard it at The Blackbook first.

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UPDATE (2:30 P.M.)
We have received an interesting reply from a former SCOTUS clerk. Our source informs us that Justice Rehnquist used to run his own NCAA Tournament pool, so take that for what it's worth.