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.

Wednesday, July 17, 2013

George Zimmerman and reasonable doubt

Sigh. I'm hearing that Florida prosecutors did not prove their case against George Zimmerman beyond a reasonable doubt. For example, BBC News reports that "Alan Dershowitz told BBC News that there was "reasonable doubt" about the facts of what happened." Dershowitz should know better: reasonable doubt is not an issue in the case, and if it were, Zimmerman would have been convicted.

The part of the case which the state's burden to overcome reasonable doubt would apply is as to whether Zimmerman actually shot and killed Trayvon Martin. However, this part of the case is not in doubt; Zimmerman admits to killing Martin. That's all there is for the prosecution's reasonable doubt.

Zimmerman did not try to raise reasonable doubt; instead, he raised the affirmative defense of self-defense. (Florida's "Stand Your Ground" law, which establishes that a person can claim self-defense even if he or she refuses to retreat, does not apply, because Zimmerman claimed that Martin had restrained him and he was unable to retreat.) An affirmative defense requires the defense, not the prosecution, to bear the burden of proof. The defense's burden is typically lower than the prosecution; the defense has to establish an affirmative defense not beyond a reasonable doubt but by only by the preponderance of evidence. The defense successfully argued that Martin attacked Zimmerman, and Zimmerman shot Martin in self defense.

It is possible that Martin really did attack Zimmerman. However, whether or not he did so is completely irrelevant. The relevant facts, which are not in dispute, are that George Zimmerman armed himself with a pistol, and went out of his way to intentionally create a situation, stalking and harassing Martin, with a strong likelihood of a violent confrontation. George Zimmerman could have prevented Trayvon Martin's death: he knew that his actions could cause Martin's death, he knew that by not intentionally provoking him he could have prevented Martin's death, he knew that he had no good reason to intentionally and deliberately create a situation that might lead to Martin's death, and he did so anyway. That, in my mind, makes Zimmerman an evil bastard guilty of the murder of a child, and our society complicit in that evil by exonerating him.

Thursday, July 04, 2013

Corey Robin on conservatism

Conservatism is the theoretical voice of animus against the agency of the subordinate classes.

— Corey Robin, The Reactionary Mind