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Thursday, March 22, 2012

Trayvon Martin and Florida's "Stand Your Ground" Law

In the wake of the tragic killing of Trayvon Martin in Florida, there seems to be a lot of misinformation about Florida's so-called "Stand Your Ground" law which critics are pointing to as evidence that such laws allows killing with impunity.

Some say that the "Stand Your Ground" law makes it exceptionally hard to win a conviction. First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. Moreover, the prosecution often has a really good witness in a homicide case: the defendant himself, if the police have arrested and interrogated him, and whose statement often will have material discrepancies with his trial testimony, assuming he testifies (and if a defendant claims self-defense and doesn't testify, the jury will hold it against him, no matter how much we tell them not to).

So what are we left with that distinguishes Florida's law? Well, obviously there is the "stand your ground" provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. That is why Anthony Sebok wrote in 2005 that it is "unlikely . . . that this change will change outcomes in particular cases."

So what is truly distinctive about Florida's "Stand Your Ground" law? It is this: while self-defense conventionally is just that -- a defense, to be raised at trial -- self-defense under the Florida law acts as an immunity from prosecution or even arrest. Section 776.032 of the Florida Statutes provides that a person who uses deadly force in self-defense "is immune from criminal prosecution." This odd provision means that a person who uses deadly force in self-defense cannot be tried, even though the highly fact-intensive question of whether the person acted in self-defense is usually hashed out at trial. The law thus creates a paradox: the State must make a highly complex factual determination before being permitted to avail itself of the forum necessary to make such a determination.

Not only that, Section 776.032 provides immunity from arrest unless the police have "probable cause that the force that was used was unlawful." Again, the law creates a Catch-22: police cannot arrest the suspect unless they have probable cause, not just to believe there was a killing, but also that the killing was not in self-defense; and where, as is often the case, the defendant is the only living witness to the alleged crime, the police likely will not be able to form probable cause without interrogating the suspect.

The Trayvon Martin case demonstrates the flaws in Florida's "Stand Your Ground" law. But let's not lose focus over what exactly those defects are, and they are not in the decision to abrogate the common-law duty to retreat, over which reasonable people can disagree and have for decades. No, the defect in the law is in the odd provisions that grant immunity from prosecution and even arrest, preventing the machinery of criminal justice from resolving whether the self-defense claim is a valid one.

Posted by Michael J.Z. Mannheimer on March 22, 2012 at 11:28 PM in Books, Criminal Law, Current Affairs | Permalink

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Comments

Thanks for posting this. Adds a level of understanding that is definitely lacking from the media reports.

Posted by: Anon | Mar 23, 2012 8:56:09 AM

How is that not a DPC violation on its face? The victim is denied due process by the immunity clause, and states are prohibited from adopting such laws under 14th Amd. DPC

Posted by: Nate | Mar 23, 2012 2:47:49 PM

Dead victims of crime have process rights?

Posted by: Sykes Five | Mar 23, 2012 3:07:33 PM

Thanks for the very helpful and illuminating analysis. Florida law does seem to be unusual, not so much in recognizing a broad right to "stand your ground", but in making it especially difficult even to arrest or prosecute a defendant who claims self-defense.

Here is a recent Fla. S.Ct. decision clarifying how trial courts should address the self-defense issue pretrial. From a quick reading, this case suggests that the state isn't in quite as bad a "Catch-22" position as you say; still, the procedure does make it harder to reject self-defense claims.

http://caselaw.findlaw.com/fl-supreme-court/1548575.html

(Of course, all of this is irrelevant in the Kenyon Martin case if there is no evidence that Zimmerman acted in self-defense at all.)

Posted by: Ken Simons | Mar 23, 2012 3:26:13 PM

This is all very illuminating. Problem I have is that based on 911 calls, the defendant pursued the victim.

Posted by: lib2core | Mar 23, 2012 5:00:48 PM

Ken you missed the point... there does not have to be one shred of evidence saying Zimmerman acted in self-defense, other than him saying he acted in self-defense. Burden of proof is on the prosecution to show that he WASN'T acting in self-defense.

Posted by: Frank | Mar 23, 2012 5:37:14 PM

Interesting. IANAL, but when I was reading the (short) SYG law the other day, the provision about immunity from arrest seemed to be the strangest part. It certainly provides the Sanford PD with a very good reason for not arresting Zimmerman. If he goes to trial and is acquitted (assuming, of course, he is charged) would he be able to sue for false imprisonment?

Posted by: neil | Mar 23, 2012 5:37:54 PM

From the 911 calls and every bit of evidence I have heard, Martin would have had a far greater right to be fearful of Zimmerman.

Posted by: Jeff | Mar 23, 2012 5:55:21 PM

Frank,

That's not right. From *Dennis*: "...we 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."

Posted by: Hank | Mar 23, 2012 5:58:48 PM

Also, no probable cause to arrest?? That's a pretty big stretch in this case.

Posted by: Hank | Mar 23, 2012 6:24:05 PM

"Also, no probable cause to arrest?? That's a pretty big stretch in this case."

Is there any probable cause to suspect that he didn't act in self-defense? That's an honest question: I haven't seen anyone address the issue with reference to actual known facts.

"How is that not a DPC violation on its face? The victim is denied due process by the immunity clause, and states are prohibited from adopting such laws under 14th Amd. DPC"

Read the 14th Amendment again.

Posted by: Andrew MacKie-Mason | Mar 23, 2012 6:46:03 PM

The fact that Zimmerman basically stalked Martin and then pursued him after being instructed not to should suffice as PC for an arrest. I'm not saying that's sufficient for a conviction, but PC for an arrest is a pretty low standard, and I think it's easily met given the facts of this case.

Posted by: Hank | Mar 23, 2012 7:25:47 PM

The point is that under the Florida law, they need probable cause to believe that he didn't act in self-defense. None of the stuff you just pointed to is evidence of that.

Posted by: Andrew MacKie-Mason | Mar 23, 2012 7:32:58 PM

Not enough for an arrest?? Give me a break!

Posted by: Hank | Mar 23, 2012 7:46:27 PM

The probable cause that he didn't act in self-defense is based on the clearly established facts that Zimmerman pursued Trayvon (with a gun) after being instructed not to do so and then shot him. The victim weighed 100 pounds less than him and had no weapon. How exactly is that not probable cause that he was the aggressor and was not in fact reasonably (and it does have to be reasonable!) fearful that he would suffer death or serious bodily harm? The only person in this scenario that may have had a valid self-defense claim is the person who was simply walking around minding his own business and then got pursued by a large man wielding a weapon.

Posted by: anon | Mar 23, 2012 7:57:53 PM

Anon, you seem to be incorrect on the elements of self-defense in Florida. FS 776.012 specifically allows the use of deadly force if "He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony."

"Forcible felony" is defined in FS 776.08 to include "treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual."

"Aggravated assault" is defined in FS 784.021 to include "an assault with an intent to commit a felony".

"Aggravated battery" is defined in FS 784.045 as a battery which "Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement".

Thus, it seems clear that someone need not be fearful that they will actually sustain great bodily harm, but instead have a reasonable fear that someone will imminently assault them with the intent, even if difficult to achieve, of causing great bodily harm.

By the way, I'm always amused at the suggestion that the weight differential is conclusive in who hurt who. I'd be interested to know if you can find any authority for the suggestion that a weight differential alone is sufficient probable cause for a self-defense claim.

Finally, whether or not Zimmerman initially "pursued" Trayvon isn't, as far as I can tell, relevant to the self-defense inquiry (what's relevant is if he feared that he would be assaulted with the intent to cause great bodily harm).

Anyways, I'm not saying the police didn't have probable cause that Zimmerman wasn't acting in self-defense. I'm saying that none of the commentators I've heard screaming for his arrest have pointed to any, including in this thread.

Posted by: Andrew MacKie-Mason | Mar 23, 2012 9:49:58 PM

Oh, by the way, this is just flatly wrong under Florida law: "The only person in this scenario that may have had a valid self-defense claim is the person who was simply walking around minding his own business and then got pursued by a large man wielding a weapon."

Posted by: Andrew MacKie-Mason | Mar 23, 2012 9:50:46 PM

I'd love to hear exactly how the ground Zimmerman was "standing" became his to stand.

Posted by: Dave | Mar 23, 2012 10:30:25 PM

Andrew, I do not follow your analysis of the Florida law, but I'm sure this break from your studies will serve you well when you actually take criminal law.

Posted by: Anon | Mar 23, 2012 10:49:35 PM

Seriously, though, it isn't a forcible felony to act in self-defense; thus, the large gunman stalking a scared, unarmed bystander cannot reasonably believe one will be committed if said bystander attempts to defend himself against the armed stalker.

Posted by: Anon | Mar 23, 2012 11:05:25 PM

Anon, you could point to an actual problem in the analysis. But you seem unable to, even though it's fairly simple to follow. Regardless, the suggestion that there has to be a fear of death or serious bodily harm in order for self-defense to apply is clearly wrong, as reading the statute demonstrates.

Posted by: Andrew MacKie-Mason | Mar 23, 2012 11:31:20 PM

Andrew: what *would* amount to PC for an arrest? It seems like under your theory, short of an eyewitness there can't be any.

Posted by: Hank | Mar 24, 2012 12:39:14 PM

"Finally, whether or not Zimmerman initially "pursued" Trayvon isn't, as far as I can tell, relevant to the self-defense inquiry (what's relevant is if he feared that he would be assaulted with the intent to cause great bodily harm)."

This is where your analysis fails. If I run after you screaming, "I'm going to kill you!" and you turn around with a baseball bat, I can't then shoot you and say I was "Standing my ground." And if a bystander heard *someone* screaming, "I'm going to kill you" right before the gunshot, there would be PC for an arrest in the case, at which point I could file an MTD and ask a judge to dismiss the charges under "Stand Your Ground," where I have the burden of proving I reasonably feared for my life, etc. by a preponderance of the evidence.

In short, your analysis fails because there is evidence sufficient to establish the (very low) standard of probable cause for an arrest.

Posted by: Hank | Mar 24, 2012 12:43:54 PM

This got a shout-out on Up With Chris Hayes today.

I'm am somewhat confused about this:

"a person who uses deadly force in self-defense cannot be tried"

Is it a crime to use deadly force, full stop? I sort of understand the problem addressed in Florida if this scenario might arise: I kill a would be attacker in an alley somewhere. Then, I'm arrested & presumed guilty until the facts are hashed at the trial. What if the incident happened at home? Would I have to risk trial, and potentially pre-trial detention (if I didn't have bail or was deemed a flight risk etc.), even if the state didn't have probable cause?

Concern is cited about lack of evidence, but that is present in many of these cases. It often is hard to prove certain crimes w/o witnesses or if all we have to go on is he said/she said. Bottom line, what is so perverse about only arresting people with probable cause of "unlawful" conduct? The alternative is that you are assumed guilty until proven innocent. That sounds off.

I might be missing something.

Posted by: Joe | Mar 24, 2012 1:25:50 PM

The real problem, to me, is that problems with "stand your ground" laws generally, that is, at least outside of the home (Hayes cited a case involving a R.V. ... same basic idea). Florida takes an idea that already is of concern and makes it a bit more troubling. And, the person here regardless didn't seem to actually be covered by the law at all.

It is like complaining about using a gun in self-defense and the gun is not used in self-defense at all and the debate goes beyond that to guns generally. I guess that is worthwhile, but it is not really the same thing.

Posted by: Joe | Mar 24, 2012 1:30:18 PM

"This is where your analysis fails. If I run after you screaming, "I'm going to kill you!" and you turn around with a baseball bat, I can't then shoot you and say I was "Standing my ground." And if a bystander heard *someone* screaming, "I'm going to kill you" right before the gunshot, there would be PC for an arrest in the case, at which point I could file an MTD and ask a judge to dismiss the charges under "Stand Your Ground," where I have the burden of proving I reasonably feared for my life, etc. by a preponderance of the evidence."

Except, as far as I've heard, there's no evidence whatsoever that anything like that happened. What you're hypothesizing isn't "pursuing" in the way its been used here. That's posing an imminent threat. The only evidence of "pursuit" I've heard is that Zimmerman got out of his car to follow Martin and keep an eye on him, and then lost track of him. And that's irrelevant to the self-defense inquiry. Has there been any evidence gathered that Zimmerman ran at Martin yelling "I'm going to kill you"? If so, I haven't heard it, and I'd welcome a reference. (That, by the way, would constitute probable cause for arrest under my analysis, so you still haven't pointed to a problem there.)

Joe says: "I might be missing something."

The difference is between how affirmative defenses are usually handled versus other types of defenses. Affirmative defenses, like self-defense, are usually a matter for trial rather than arrest.

Posted by: Andrew MacKie-Mason | Mar 24, 2012 6:37:54 PM

Andrew: If Zimmerman had refused to make any statement to the police when they arrived, would you question that there was probable cause to arrest him for homicide? If not, how can Zimmerman's claims of innocence change the analysis? Consider the following passage from Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989):

It would be unreasonable and impractical to require that every innocent explanation for activity that suggests criminal behavior be proved wrong, or even contradicted, before an arrest warrant could be issued with impunity. See Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir.1988), ("[t]o hold otherwise would be to allow every suspect, guilty or innocent, to avoid arrest simply by claiming `it wasn't me'"). It is up to the factfinder to determine whether a defendant's story holds water, not the arresting officer. Cf. United States v. Malsom, 779 F.2d 1228, 1233 (7th Cir.1985) (question of whether necessary criminal intent is established is for factfinder). Once officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.

Posted by: AF | Mar 24, 2012 7:45:23 PM

"The difference is between how affirmative defenses are usually handled versus other types of defenses. Affirmative defenses, like self-defense, are usually a matter for trial rather than arrest."

Okay. But, still, why can't it be tried? The state argues that "no, it wasn't self defense, it was manslaughter." There is a trial. The state loses out, after the facts fall where they may. What's the problem? The law doesn't just take the say-so of the person, does it? If the person makes an unreasonable claim, s/he isn't immune from prosecution.

And, again, the specter of people having a hard time proving self-defense, even forced to stay in jail for some time (as many accused of crimes do), has emotional weight in various cases. You can understand the mentality of this law, at least in certain cases.

Posted by: Joe | Mar 24, 2012 9:00:29 PM

I am not at all certain whether there is probable cause to arrest Zimmerman given the facts that have come out. In a typical jurisdiction, if there is a corpse on the floor and the police have probable cause to know who the culprit is, they can arrest him, and if he says, "He came at me first," the expected and appropriate response is indeed, "Tell it to the jury." That is an appropriate application of the constitutional standard of probable cause, and that is what the passage from Krause says. However, Florida is not a typical jurisdiction. It has a statutory provision that the police "may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful." If we interpret that to mean only that the police may not arrest in a self-defense case absent probable cause in the constitutional sense -- in the way Krause describes -- then that statutory provision adds nothing whatsoever! The constitutional standard applies irrespective of sec. 776.032(2). So unless we are to assume that that subsection is entirely superfluous, it must require something more than the bare constitutional probable cause requirement. It is that ineffable increment beyond mere constitutional probable cause that I was attempting to capture in the original post when I wrote that the "police cannot arrest the suspect unless they have probable cause, not just to believe there was a killing, but also that the killing was not in self-defense . . . ."

Posted by: Michael J.Z. Mannheimer | Mar 24, 2012 9:35:29 PM

Professor Mannheimer, I think you're conflating two scenarios: (1) where the independent evidence (ignoring the killer's testimony) shows that the killing was likely in self-defense, and (2) where the independent evidence is inconclusive as to whether the killing was in self-defense.

Florida law clearly forbids arrest in scenario (1). I don't think it forbids arrest in scenario (2). When a suspect kills an unarmed victim and there are no other circumstances making self-defense likely (eg, the suspect was not burgling the suspect's house), it is probable that the killing was unlawful. The statutory standard is satisfied. If the suspect insists that he was only defending himself, the police can indeed say “tell it to the jury.” The alternative you are proposing -- that no arrest is possible in the absence of evidence *affirmatively negating* the killer's testimony -- would make it extraordinarily easy to get away with murder. It cannot possibly be what the legislature intended.

Posted by: AF | Mar 24, 2012 10:39:46 PM

"Andrew: If Zimmerman had refused to make any statement to the police when they arrived, would you question that there was probable cause to arrest him for homicide? If not, how can Zimmerman's claims of innocence change the analysis?"

I believe there would have been probable cause in that case, yes. (Assuming they had reason to suspect that he shot him without the statement -- he did confess to that, but there was probably enough PC without the confession.)

The statement changes the analysis not because it's a claim of innocence, but because it's a claim of self-defense. Once self-defense has been claimed, under Florida law, the police need PC that it wasn't self-defense. If self-defense isn't claimed, they don't need that. The cause you cited is merely for the proposition that probable cause only needs to be established for the elements of the crime, not to debunk the defenses. But because of the Florida statute, the self-defense claim isn't just a normal defense, but adds an element of the crime that they're required to have PC for.

Your argument in your latest comment (that the absence of evidence suggesting self-defense is PC that there was no self-defense) doesn't square with my understanding of probable cause. The police need at least some small bit of evidence to establish probable cause on a certain factor, don't they? Mere generic, unindividualized probability isn't enough. If the only actual evidence bearing on the self-defense question is the killer's self-defense claim, I don't see how you get probable cause that it wasn't self-defense.

Joe: "Okay. But, still, why can't it be tried? The state argues that "no, it wasn't self defense, it was manslaughter." There is a trial. The state loses out, after the facts fall where they may. What's the problem? The law doesn't just take the say-so of the person, does it? If the person makes an unreasonable claim, s/he isn't immune from prosecution."

In a state that doesn't have a Florida-style law, you can begin the trial without probable cause that the self-defense claim is false, and then establish that the self-defense claim is false at trial. In Florida (at least according to the OP) you can't do that: the case would be thrown out on a pre-trial motion and there'd be an actionable claim for malicious prosecution, probably.

Posted by: Andrew MacKie-Mason | Mar 25, 2012 1:12:17 AM

"Your argument in your latest comment (that the absence of evidence suggesting self-defense is PC that there was no self-defense) doesn't square with my understanding of probable cause. The police need at least some small bit of evidence to establish probable cause on a certain factor, don't they?"

It's not the absence of evidence of self-defense that establishes probable cause. It's the killing of an unarmed law-abiding citizen. Such a killing is highly likely to be unlawful, in the absence of objective evidence showing that self-defense was likely.

Posted by: AF | Mar 25, 2012 8:19:38 AM

But AF, you have no actual, independent evidence specifically pointing to the fact that it was unlawful, just the absence of evidence. Neither the absence of evidence relating to self-defense, nor the presence of evidence relating to the separate issue of the killing itself, can establish probable cause on the self-defense question.

Under your theory, how exactly does the Florida statute change anything?

Say there's a statute criminalizing burglary, and it's defined as "entering a building without authorization with the intent of stealing property." If all the police have reason to suspect is that I entered a building without authorization, they don't have PC to charge me with burglary, even if they argue that it's unlikely that I would have done so without the intent to steal property absent objective evidence to that effect. They need at least something suggesting my intent was to steal property rather than do something else. Otherwise, they just have PC to arrest me for trespass or something of the like.

Posted by: Andrew MacKie-Mason | Mar 25, 2012 11:17:50 AM

"In Florida (at least according to the OP) you can't do that: the case would be thrown out on a pre-trial motion and there'd be an actionable claim for malicious prosecution, probably."

The self-defense claim would not be accepted on mere say-so. There would at least be some sort of pre-trial hearing, where facts can be tried if in embryo form, to determine if prosecution can follow.

FWIW, a something different view of the law is provided at Balkinization.

Posted by: Joe | Mar 25, 2012 1:48:15 PM

"The self-defense claim would not be accepted on mere say-so. There would at least be some sort of pre-trial hearing, where facts can be tried if in embryo form, to determine if prosecution can follow."

The self-defense claim would be accepted on "mere say-so" in the same way that a plea of not guilty is accepted on "mere say-so." The prosecution would have to overcome it with some evidence. And if they arrested him without a warrant and the case was thrown out at the preliminary hearing for lack of probable cause, they'd be exposed to a malicious prosecution claim.

"The police are already supposed to have probable cause to arrest someone, and prosecutors should have their case together BEFORE a trial."

The prosecution isn't necessarily required to have their "case together" to beat every possible defense before the trial. Some things can come up at trial and be dealt with there. (If the police are about to arrest someone and they claim to have an alibi, we don't necessarily demand that they have evidence to undermine that alibi right away, for instance.)

Posted by: Andrew MacKie-Mason | Mar 25, 2012 2:05:27 PM

Just a FYI Zimmerman was arrested at the scene, handcuffed, cleaned up and taken to the station where he was questioned for 3 hours. He's been in several times since when asked for clarifications with no problem.
Sanford PD has the audio tapes and documents pertinent to the case up at their site. Difficult to find so here's a link: http://sanfordfl.gov/investigation/trayvon_martin.html

Continue on with your discussion. Fascinating.

Posted by: Marla Hughes | Mar 25, 2012 11:14:43 PM

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Posted by: TrayvonMartinShirts | Mar 26, 2012 12:37:47 PM

What is this world coming to when a criminal law professor says that a provision whereby the police may not arrest (seize) a man unless they have probable cause to believe he acted in an unlawful manner... is a "defect" ???

Does the Fourth Amendment mean nothing to you? For shame.

While paling in comparison, your argument suffers for another reason as well: you write, "where, as is often the case, the defendant is the only living witness to the alleged crime, the police likely will not be able to form probable cause without interrogating the suspect..."

But with no other witnesses, how is self-defense at issue in the first place unless the erstwhile defendant has raised it? I don't believe I've seen the rash of cases where the Florida Courts are overturning convictions after Mirandized custodial interrogations of sole-witness/defendants because those interrogations weren't preceded by a pc-bearing voluntary chit-chat.

Posted by: Brooks | Mar 27, 2012 12:03:01 AM

"This odd provision means that a person who uses deadly force in self-defense cannot be tried, even though the highly fact-intensive question of whether the person acted in self-defense is usually hashed out at trial. The law thus creates a paradox: the State must make a highly complex factual determination before being permitted to avail itself of the forum necessary to make such a determination."

That seems like an unnecessary provision, not an odd one. Isn't it *always* applied to prosecution? The prosecutor is supposed to decide the defendant is probably guilty and convince a grand jury of that. If he thinks the defendant might be guilty but is probably innocent, he's not supposed to take the case to trial and get a petit jury to figure out the answer for him. It's the prosecutor's job to make complex factual determinations, and the jury's job only to make sure he's done it right.

Posted by: Eric Rasmusen | Mar 27, 2012 9:20:32 AM

Marla Hughes said:

"
Just a FYI Zimmerman was arrested at the scene, handcuffed, cleaned up and taken to the station where he was questioned for 3 hours. He's been in several times since when asked for clarifications with no problem.
Sanford PD has the audio tapes and documents pertinent to the case up at their site. Difficult to find so here's a link: http://sanfordfl.gov/investigation/trayvon_martin.html
"

Thank you! I never heard of this. In all the coverage, there's been a huge complaint that Zimmerman wasn't arrested. And now it turns out he was handcuffed and taken to the police station. Maybe nobody said, "You're under arrest", but what matters is that despite his injuries the police took the probability that he was guilty seriously enough to take him to the police station and question him. After that, there's no point in keeping an arrested person overnight unless they think he's a flight risk.

Posted by: Eric Rasmusen | Mar 27, 2012 9:41:49 AM

" Once officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence."

Surely this is the crucial point. If the Florida statute does allow the police officer to "sit as prosecutor, judge or jury" then surely that statute is unconstitutional? Put another way, if the relevant provisions in that statute are to be considered redundant (as the professor appears to be arguing) unless they connote a meaning of probable cause above and beyond the constitutional meaning of probable cause, then surely those statutory provisions, in purporting to create a definition of probable cause at variance with that which has been held to be in accordance with constitutional norms (and exemplified in the quotations from the Krause case above) are prima facie unconstitutional?

Would be fascinated to hear your response to these questions from an observer from across the pond!

Posted by: Neil McCarthy | Mar 27, 2012 11:25:25 AM

Are there any other states with an immunity from arrest provision?

Posted by: Jacks | Mar 28, 2012 2:39:09 PM

It's not clear to me why you think the ability to arrest a defendant is a either necessary or sufficient to interrogating him, which seems to be the foundation for claiming this law creates a Catch-22 for police. An arrested defendant can say "it was self-defense" and then refuse to answer any questions. A non-arrested suspect can be questioned by the police and answer questions, as in fact seems to have happened here. What's the connection between arrest and interrogation that you're trying to draw?

Posted by: Rob Atwood | Mar 28, 2012 4:20:28 PM

Rob, that's a good question, so let me flesh out my thoughts on that a little more. First, in my experience, the most effective police tactic in an arguable self-defense case is to get a number of separate statements from the suspect. The first statement is typically the most favorable to the suspect. Police will then confront the suspect with some inconsistencies or improbable facts in that account. The suspect will change his statement to account for these. Police will then confront the suspect with flaws in that account, and so on. At the end of the day, best case scenario for the police is that they have extracted a full confession; worst case scenario is that they have multiple exculpatory accounts that all conflict on some major details. But if the suspect cannot be arrested, police are less likely to get past that very first statement. Sure, the police can come back and re-question the suspect without arresting him, but by that time he may have secured counsel who will have told him in no uncertain terms not to make any further statements to the police.

Second, it seems to be an underlying assumption of the case law that a custodial interrogation -- that is, one following arrest -- is more effective in obtaining inculpatory statements than a non-custodial interrogation, which is precisely why the Miranda safeguards have been put in place regarding the former but not the latter. Now, it may well be that once one gets a suspect down to the police station after assuring him he is free to leave at any time, thereby rendering the interrogation non-custodial in the Miranda sense, the effectiveness of the interrogation in obtaining inculpatory statements approaches that of a typical custodial interrogation. But I'm not certain how often that is accomplished.

Anyway, those are my initial thoughts. I could be convinced otherwise.

Posted by: Michael J.Z. Mannheimer | Mar 28, 2012 7:32:26 PM

Excellent article right up to the patently incorrect conclusion:

"preventing the machinery of criminal justice from resolving whether the self-defense claim is a valid one."

This is incorrect for the simple reason that a pre-trial hearing is offered as a method for deciding wither the immunity applies.


Also for others who keep trying to introduce pejoratives such as "stalking" (in the vernacular sense) or "confronting" or "profiling" into what should be a rational, legal discussion: These are not CRIMES under Florida law -- only "stalking" is actually a crime in the statutes but this is true only in the technical definition of "stalking" which is simply impossible to meet in this case.

Posted by: Herb Martin | May 11, 2012 4:55:39 AM

The self-defense claim would be accepted on "mere say-so" in the same way that a plea of not guilty is accepted on "mere say-so." The prosecution would have to overcome it with some evidence. And if they arrested him without a warrant and the case was thrown out at the preliminary hearing for lack of probable cause, they'd be exposed to a malicious prosecution claim.

The state always has to provide some evidence before a case of wrongful homicide goes forward. If I had no way of knowing that I was serving poisonous food to someone and there is no evidence that I did not, could the state still charge me with wrongful homicide and force me to go to trial, pay bail (or keep me in prison if I'm a flight risk) etc.?

There would always be some sort of pre-trial hearing to determine if the state has some minimum evidence of guilt. There might be affirmative defenses that only arise at trial but criminal homicide by definition requires some degree of bad will that has to be shown at least in embryonic form at the beginning.

If there is no probable cause etc., yes, a malicious prosecution suit can be forthcoming. That would be the case regardless. If the police had no evidence that the killing wasn't a mistake or in self-defense (if they themselves were there, clearly knew I would die w/o shooting and STILL arrested me, would that be fine even w/o this law?), yes, they could be subject to suit. Though they often tend to be hard to win.

Posted by: Joe | May 11, 2012 11:49:22 AM

[the first paragraph of the last comment was supposed to be in italics]

Posted by: Joe | May 11, 2012 11:49:54 AM

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