Friday, July 26, 2013

Self defense

In the comments to George Zimmerman and reasonable doubt Major Nav asks a hypothetical question: Assuming I were on a neighborhood watch, and I politely addressed someone whom I did not recognize,
What if the man you politely addressed in a non-threatening manner is pissed that you can now recognize him and may even have a picture. What if the man really was up to something.

Now he has tackles you to the ground and starts to thump you.

What would you do to make the beating stop? Would you shoot him? At this point, would it matter what color he was?
He goes on to accuses me of avoiding the question and asks,
Are you saying you would only defend yourself from a beating if you could have evidence it was self-defense?

Your almost there. No one has the right to kill anyone. But everyone has the right to defend themselves/family, even if that means using lethal force.

I did not answer this question because in the context of the Zimmerman case, this is a Bad Question. It attempts to analogize an hypothetical case with facts that are, at the very least, not in evidence in the Zimmerman case.

Major Nav seems to assume that the crux of the Zimmerman case is whether or not we have the right of self-defense. But that assumption is silly; no one argues the general validity of self-defense. The argument is under what conditions should juries and courts find self-defense, and how should courts determine whether or not those conditions have been met.

Before I examine the specific question, I want to mention a few things about legal theory in general.

There is an important distinction: 1) what actually happened in the real world, 2) what conclusions we can draw about what actually happened from the evidence available at s trial. (There's also the element of what kinds of evidence can and cannot be admitted for reasons other than probative value, but this element does not seem relevant to the Zimmerman case, and, as far as I'm aware, is not particularly important in considering self defense.)

If we are to have a civilized rule of law, we must make post hoc decisions based on the evidence available at the time of the decision, not what actually happened at the time of the conflict between the actions of an individual and the requirements of law. Thus, any person who wishes to act legally and also wishes to avoid legal consequences is prudent to not only act legally, but also act such that, if there is a trial, evidence supports (or does not undermine) his compliance with the law. It would be nice to have it, but we do not have perfect knowledge after the fact about what happened. In legal theory, we deal with imperfect knowledge in several ways. First, when determining if an individual actually committed acts proscribed by law, we place a burden of proof on the prosecution. When we do not know enough about what happened to determine beyond a reasonable doubt if an individual actually committed legally proscribed actions, then we do not subject that individual to legal sanction. We do not have to actually know with any confidence that an individual did not commit a proscribed action to find him or her not guilty; we find him or her not guilty if we do not know beyond a reasonable doubt that he or she committed a proscribed action.

By design, our laws are somewhat vague and imprecise. We will not punish someone even if they actually do commit, and we can know they committed, a proscribed action if they had a "good reason" to have done so. For example, the law forbids killing a human being; however, if someone has a good reason, such as self defense, for killing a human being, we will not punish him. However, having a good reason is an affirmative defense: the defendant has the burden of proof of establishing the good reason for committing what would otherwise constitute an illegal act. This is an important distinction: it is not enough to acquit someone that we do not know beyond a reasonable doubt that they did not have a good reason to commit an otherwise illegal act. (Sorry for all the negatives.) We must have positive reasons, which can be circumstantial, to believe they actually did have a good reason. Furthermore, the state can introduce evidence that the defendant's alleged good reason is specious or false.

For example, if I am in my home, and an person unknown to me climbs in through an open window and points a gun at me, and I shoot him, then I have circumstantial evidence that I acted in self-defense, even though there is no direct evidence that I did so: there is an dead unknown person in my house, there is a loaded gun in his hand, and the state cannot establish any credible motive for the killing other than self defense. Even without "Make My Day" laws (which I don't find particularly objectionable), it's usually relatively easy, if one is careful about one's story, to affirmatively establish self defense.

These specific questions are relevant to the Zimmerman case. First, we know beyond a reasonable doubt that George Zimmerman shot and killed Trayvon Martin. The state's burden has been met, and reasonable doubt on the part of the prosecution is trivially irrelevant to the Zimmerman case. Second, George Zimmerman alleges self-defense, which is an affirmative defense.

Note that Zimmerman's legal guilt or innocence is no longer particularly relevant; he has been acquitted, and unless the state charges him with a substantively new crime, even new facts about the original act cannot change the verdict. Similarly, the right of self-defense in general is not an issue; there is no controversy that in general, self defense is a good reason for killing another person.

Instead, what is at issue are more general questions: what actually constitutes self defense? What does a person need to do to establish, after the fact, that he or she killed a human being in self defense? What circumstances should we, as a society, consider when determining whether or not a killing was actually in self defense?

I want to repeat: that we cannot know beyond a reasonable doubt whether or not Zimmerman acted in self defense is absolutely not a legal defense. The burden is on Zimmerman (and anyone else acting in self defense) to prove by the preponderance of evidence (if Wikipedia is to be trusted in this matter) that he acted in self defense.

The real question in the Zimmerman case, and cases of "vigilante" killings in general, is how widely we consider the antecedent actions of the defendant in determining whether or not self defense is a good reason for a killing.

As best I can tell, the jury acquitted Zimmerman because they considered only the immediate circumstances surrounding Trayvon Martin's death. Because I am not a lawyer, and even if I were, I am not at all familiar with Florida law, I do not know whether or not the jury (or the judge's instructions) acted according to Florida law in considering only those circumstances. Instead, I want to consider the general legal theory of self defense.

It should be uncontroversial that everyone must, to some extent, forfeit otherwise legal rights to preserve human life. For example, few would object that, even though I have the legal right of way to proceed down a street at the speed limit, I must slow down if it is safe to do so to avoid hitting a jaywalking pedestrian. On the other hand, there are upper limits as well: I do not have to forfeit my right to life to avoid killing someone.

The question becomes: how far out of my way must I go, what legal rights must I forfeit, to avoid killing someone? There are, in general, three choices. First, a person must go "very far" to avoid killing. Second, a person need not go "very far" to avoid killing. Third, a person must go "very far" to avoid killing some kinds of people, but does not need to "very far" to avoid killing other kinds of people. (One common criticism of Zimmerman in particular and self defense acquittals in general is that the legal system seems to hold in practice that everyone much go significantly further to avoid killing white people than they must to avoid killing black people.)

I hold the first position: one must go "very far" to avoid killing anyone. Specifically, I hold that everyone has a positive duty to avoid provoking a violent reaction. If I do something that reasonably and foreseeably would provoke a violent reaction, and I can avoid doing so without forfeiting an important legal right, then because I provoked the violent reaction, I cannot claim self-defense. If I find myself in a situation where I can reasonably foresee someone might use unprovoked violence, then yes, I will make very sure that I do my best to ensure that direct and circumstantial evidence will exonerate me. Finally, in the extremely unlikely case that I were in circumstances such that I needed to act in self defense, but I could not establish self defense by the preponderance of direct or circumstantial evidence, well, I would rather be convicted of murder than establish the precedent that people can go around killing others without a provable good reason to do so.

Finally, as mentioned before, one common objection to the Zimmerman verdict and verdicts like is privilege: one standard applies to the killing of black people, and a higher standard applies to the killing of white people. Fundamentally, it seems, especially in the Zimmerman verdict, that when the victim is black (and especially if the killer is non-black), people consider the circumstances more narrowly, they apply the reasonable doubt standard rather than the preponderance of evidence standard, and they give more weight to allegations that the black victim was reasonably threatening.

Had Trayvon Martin avoided being shot and instead George Zimmerman been killed, I have little doubt that the jury would have considered the circumstances more broadly (why was Martin in that neighborhood in the first place?), they would have applied a stricter burden of proof (did Martin really need to kill Zimmerman, rather than simply have a subjective fear of death?) and they would have presumed that Zimmerman was non-threatening, and required Martin to do much more to overcome that presumption than Zimmerman needed to confirm the presumption that Martin, a black child, was inherently threatening.

Take it how you will, but fundamentally, I believe that anyone who defends Zimmerman, on any basis, covertly believes that black lives are inherently less valuable than non-black, especially white, lives, and that black people have fewer legitimate rights to safety and security than do non-black and white people. You may argue all you like that you are just supporting Zimmerman on the facts and racially neutral legal principles, but it is difficult to convince me that you are not simply lying about your racism. I have seen too much evidence of the worst kind of despicable racism in our society to be easily convinced otherwise.


  1. From Major Nav:

    No need to point out that you are not a lawyer.

    The one person who should have fled "very far" and then reported being harrassed (if that was the case) was Trayvon. Once Trayvon returned assaulted Zimmerman the rest of the considerations became moot.

    According to the law, once you are on the ground and the assailant is kicking or punching you or knocking your head into the ground, it is now assault with the intent to kill. And self-defense automatically kicks in because there is nowhere for you to retreat or avoid serious injury/death. Literally, between a rock and a hard place.

    Why do you assume that Zimmerman provoked Trayvon to attack him? Or that Zimmerman left the house looking to provoke anyone who is black? Or that Zimmerman only shot the man on top of him and beating him because he was black? Does it hurt less if a white man has you on the ground and is pummeling you?
    Revisit your premise.

    All that rambling (yes, unfortunately, I read it all) to conclude that you KNOW Zimmerman was a racist and you KNOW he shot Trayvon because he was black.

    AND therefore anyone who thinks the proper verdict was rendered is racist too. Then you, sir, are worse than Hitler. (yes, that is dripping with sarcasm)

    What I KNOW, is that this case would never have gone to court if Trayvon wasn't black. And THAT is racist.

  2. Once Trayvon returned assaulted Zimmerman the rest of the considerations became moot.

    First, we do not know that Martin (and please do not be a racist and refer to the parties differently; it's Trayvon and George, or Martin and Zimmerman) assaulted Zimmerman. We have no credible evidence as to who actually began the physical confrontation; Zimmerman has too obvious a motive to conceal or distort his own culpability, and circumstantial evidence points more towards Zimmerman's culpability than Martin's.

    Second, the point at issue is whether or not the rest of the considerations are indeed moot. I argue that they are not. Even if we grant arguendo that events were as Martin described, the fact remains that he had no good reason to be there in the first place, and I argue that ethically and politically, he should be held accountable for those actions.

    According to the law...

    Again, I am not arguing the case on the basis of existing law. I am arguing what the law ought to be, which, as a citizen of a democracy, is a legitimate topic.

    ... once you are on the ground and the assailant is kicking or punching you or knocking your head into the ground, it is now assault with the intent to kill.

    I will repeat that we have only Zimmerman's unreliable testimony as to these alleged facts. Second, you are obviously not a lawyer: if you are "on the ground are on the ground and the assailant is kicking or punching you or knocking your head into the ground" as a result of an illegal act, then the assailant may be exercising his own right to self-defense; regardless of the provocation, killing in the commission of a crime is felony murder, and self-defense is not an affirmative defense.

    Why do you assume that Zimmerman provoked Trayvon to attack him?

    I do not assume so. First, Zimmerman testified that he followed Martin in his car, and then left his car to approach him on foot. These are obviously provocative acts; if someone did the same to me, I would conclude he had hostile intent. Second, we know that Zimmerman left the house armed, so he expected a violent confrontation, and there is circumstantial evidence ("Punks and assholes") that he had hostile intent before the confrontation.

    More importantly, the burden of proof is on Zimmerman to establish by the preponderance of evidence that he did not provoke Martin; I do not believe it is possible for him to do so. Maybe Zimmerman threw a punch at Martin or made some other overt act; at that point, Zimmerman would have committed assault*, and Martin was within his rights to defend himself. I don't know that's what happened, but because self defense is an affirmative defense, the burden is on Zimmerman to exclude the alternative.

    *Remember that assault is the threat to commit harm; battery is the actual infliction of harm.

  3. Or that Zimmerman left the house looking to provoke anyone who is black?

    I did not assert so. We know that Zimmerman left the house looking to provoke Martin for no better reason than that Martin was black.

    Or that Zimmerman only shot the man on top of him and beating him because he was black? Does it hurt less if a white man has you on the ground and is pummeling you?
    Revisit your premise.

    If you tell me to revisit my premise, you must introduce evidence that I am actually using that premise.

    What I KNOW, is that this case would never have gone to court if Trayvon wasn't black. And THAT is racist.


    AND therefore anyone who thinks the proper verdict was rendered is racist too. Then you, sir, are worse than Hitler. (yes, that is dripping with sarcasm)

    There is a serious issue under this. You and I have a conflict of preferences. I prefer that people have a positive duty to avoid situations that could foreseeably end in a person's death.

    You seem to prefer a much narrower obligation to avoid death.

    I also know that a lot of people have racist preferences about the obligation to avoid death: they prefer a much stricter duty to avoid the death of white people than of black people. Because it is unfashionable to appear racist, they cloak their racism in a set of pseudo-legal theories that mutate according to the race of the victim. Indeed, if the theory that exonerated Zimmerman were universally applied, a lot of white folk would be getting shot. The Zimmerman defense works only if it is differentially applied.

    Our conversation is at an end. You have expressed your opinion, both of the case and of my own opinions. You believe me to be "worse than Hitler," and I assure you I hold you in no higher esteem.

    Because I am polite, I hereby invite you to leave, having had your say. If you want a parting shot, feel free, but I have nothing left to say to a racist, murderous, entitled, privileged asshole, whom I believe will never peaceably accept a civilized society that includes all our citizens. Goodbye

  4. Ignore Tray & Zimm that is over as Bum states
    In terms of self defense things can be complicated very quickly.
    In my classes we teach avoid, if not then enough pain to escape and run to public area.
    But when you are a part of neighborhood watch then being assaulted is a very good chance. If you are doing so alone then you are stupid or looking to be attacked. Before video you would usually go in 2s or 3s for protection and for backup witnesses. With video 1 to operate and 1 to question and that makes 2 to watch each others backs.
    Back to defense...if some one hits you his fist and you shoot him dead, then you had better be at least 1/3 his mass. In most places using excessive force beyond what is used by the attacker puts the defensee in a bad place with the law. e.i. defense=gun attack=fist. Usually attack with fist means defend with club MAX!!! But my experience in this is 30yrs ago, many laws have changed. About the only thing I see as the same is that kill the other, no witnesses and you are basically home free.

  5. There are two issues here. The first is rules about individual to individual self defense. I'm not particularly happy about relaxing the rules (i.e. one must have only the subjective perception of danger to one's life, instead of an objectively determinable threat, to begin establish self defense), but that's not my biggest issue.

    The bigger issue is relaxing institutional protection against abuses of self defense. When we start allowing individuals such as Zimmerman to "defend" public spaces without any sort of institutional control, we are turning our streets into a war zone. Even a neighborhood watch acts with some institutional control, as you pointed out. Zimmerman intentionally and knowably placed himself in a situation where he presented a danger to others without any sort of institutional control, and we let him do it. To me, this precedent is the greater danger.

  6. True Zimm and his ilk should NEVER be in-charge of defending the public. You can make a case that the police are stretched and that extra eyes are good, but they are EYES only. They should not confront but report to the police. Video is OK from a distance as 'witness'.

  7. The problem I see is with language and with the relativist philosophy. In USA there is too much immoral-relativism used in poltics and in law. In which the meaning of words can be deconstructed. Just like Bush who killed 1 million people, but instead of mass-murdering 1 million people in Iraq, he "liberated" Iraq

  8. You have not quite got the legal standard right. As a defendant, you can claim self-defense, assuming there are facts to support it. If you do so, and bring forth a sufficient basis to raise the defense, the burden then shifts to the prosecutor to prove beyond a reasonable doubt that you did NOT kill in self defense. So the defendant has the initial burden, but if that is met (as it at least arguably was in the Zimmerman case) then it is not up to Zimmerman at that point to prove anything. It then becomes the prosecutor's burden, and like every element a prosecutor must prove, it must be proved beyond a reasonable doubt.


Please pick a handle or moniker for your comment. It's much easier to address someone by a name or pseudonym than simply "hey you". I have the option of requiring a "hard" identity, but I don't want to turn that on... yet.

With few exceptions, I will not respond or reply to anonymous comments, and I may delete them. I keep a copy of all comments; if you want the text of your comment to repost with something vaguely resembling an identity, email me.

No spam, pr0n, commercial advertising, insanity, lies, repetition or off-topic comments. Creationists, Global Warming deniers, anti-vaxers, Randians, and Libertarians are automatically presumed to be idiots; Christians and Muslims might get the benefit of the doubt, if I'm in a good mood.

See the Debate Flowchart for some basic rules.

Sourced factual corrections are always published and acknowledged.

I will respond or not respond to comments as the mood takes me. See my latest comment policy for details. I am not a pseudonomous-American: my real name is Larry.

Comments may be moderated from time to time. When I do moderate comments, anonymous comments are far more likely to be rejected.

I've already answered some typical comments.

I have jqMath enabled for the blog. If you have a dollar sign (\$) in your comment, put a \\ in front of it: \\\$, unless you want to include a formula in your comment.