What follows is my column for South Dakota Magazine. I think that Dr. Schaff and I have no significant disagreements.
Carrying a gun, like driving a car, involves a very heavy moral and legal responsibility. Carelessness and error can have grave consequences for which the person is liable. This responsibility is heavier still when a private individual draws a weapon to defend himself or someone else. If someone is armed and observes a school shooting about to happen, what should he do? Most of us would say he should stop it if he can, even if it means firing the gun. If, however, he has misinterpreted the situation or injures a bystander, he must know that he will bear the responsibility for that.
When George Zimmerman set out on foot, armed, to follow Trayvon Martin, a young man who was not engaged in any criminal activity, it resulted in a violent confrontation and the death of Martin. It seems to me that Zimmerman should have been held criminally responsible for his behavior. Firing "a warning shot" or even pointing a weapon at someone (say, a police officer) can land you in the slammer, while falling well short of murder.
That said, there is a very good reason why Florida police did not initially charge Zimmerman with murder or manslaughter. They had no case. Once the story became racially charged, political pressures lead to a special prosecutor and a charge of second degree murder. The affidavit on which the charge was brought excluded exculpatory evidence in Zimmerman's favor, something that is ethically and legally suspect. That the special prosecutor was inclined to such mischief supports the original decision not to bring charges.
Zimmerman claimed that he shot Martin in self defense. It doesn't matter that Zimmerman was the initial aggressor. If Martin responded to Zimmerman's non-deadly aggression with deadly force, Zimmerman was entitled to defend himself with the same. According to eyewitness accounts, Martin was on top of Zimmerman, beating him "mixed martial arts style," when Zimmerman fired his weapon. Zimmerman sustained injuries to the back of his head.
It was the responsibility of the prosecution to refute the claim of self-defense. To do that, they would have had to convince the jury, beyond a reasonable doubt, that Zimmerman did not believe that he was in danger of serious injury or death when he used deadly force to defend himself.
That is the question that the jury was instructed to answer. It was not whether Zimmerman was a racist or whether he profiled Martin. It was not whether Zimmerman might have shot Martin with some kind of criminal intent. To convict Zimmerman, they would have had to conclude beyond reasonable doubt that he was not acting in self-defense. Presented with the evidence mentioned above, a responsible jury could hardly have reached such a conclusion and this one did not.
If you think that Trayvon Martin was an innocent victim, you will certainly be disappointed by the verdict. Some voices in the media are now declaring that it is now "open season on black boys." There will probably be calls for reforming our criminal statutes to make sure that the next George Zimmerman cannot escape. While such reactions are understandable, it might be a good idea to take a breath and ask what that will mean. Who will it benefit and who will it injure if we make it easier to convict young men, African American or otherwise, of murder? Be careful what you wish for. You just might get it.
What follows is in addition to the column.
My old friend Ken Laster and I have been fighting on Facebook about this. One issue is whether Florida's "stand your ground law" was involved in this case. I think not. As I understand that law, it modifies traditional self-defense rules. What happens if someone breaks into my home and threatens my life? Under traditional rules, I can use deadly force only if I have no safe avenue of retreat (for example, running screaming out the back door). Under the SYG rules, I can use deadly force in self-defense even if I had a safe avenue of retreat.
If the general account of the shooting is correct, it happened when GZ was on his back and TM was on top of him. SYG was not relevant in that case and would not have influenced the local authorities in their initial decision not to pursue charges, nor would it have influenced the jury. The defense in the case did not appeal to the SYG law for the simple reason that traditional self-defense rules were enough.
I believe it is true that the jury was instructed to consider the SYG law. This may be because SYG lowers the threshold for use of deadly force to a "reasonable belief" that such force is necessary to prevent death or great bodily harm. Again, that is irrelevant here because an appeal to SYG would have been necessary only if the case had not turned on simple self-defense. Neither the defense nor the prosecution thought that SYG was relevant to the case and that strikes me as dispositive.
A second question is whether the Justice Department will seek civil rights charges against GZ. I think that unlikely because the prosecution would have to prove that GZ fired his weapon because of racial animus. I don't see how they could possibly accomplish that. Apparently the FBI has sought and failed to find any evidence that GZ exhibited racial bias. The prosecution would have to prove, beyond a reasonable doubt, that when he pulled the trigger he was motivated by racial animus and not by a fear for his life. Not likely.
ps. The best single thing I have read on this issue is William Saletan's piece at Slate.