"Stalking", George Zimmerman and Curry v. State

Many commentators, some in response to my earlier post, have suggested that GZ was "stalking" Trayvon Martin.  GZ admittedly was "observing," "monitoring" or "watching" Mr. Martin, at least for some period of time, but the implication of "stalking" is that, assuming GZ was following Mr. Martin as closely as he possibly could, he was doing something inappropriate or illegal.  This seems incorrect, because GZ's conduct was not unlawful. 

First, although I am not an expert in torts, it seems in the absence of stalking statutes, a person is free to follow any other in public in a non-threatening manner.  I invite correction if I am wrong.  (And, of course, in a state which allows the carrying of weapons by license, the lawful exercise of that privilege simpliciter cannot be a threat).  I get this from Prosser and Keeton, as quoted by the Alabama Court of Civil Appeals: “[o]n the public street, or in any other public place, the plaintiff has no legal right to be alone;  and it is no invasion of his privacy to do no more than follow him about and watch him there."  Similarly, the U.S. Supreme Court explained in United States v. Knotts, "When [defendant] travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property."  That is, it was not that the police could follow the defendant because they were the police and had special powers, it was that the police could follow the defendant because any private person could follow anyone in public.  Although Knotts involved a car, the principle is equally applicable to pedestrians.

This common-law tradition, of course, has been changed by stalking statutes; Florida's is Fla. Stat. Ann. 748.048.  It requires that the misconduct (which clearly can be conduct which would be legal in the absence of the stalking statute) be without a "legitimate purpose."  The key Florida case on "legitimate purpose" is Curry v. State, which reversed a conviction for aggravated stalking.   Not surprisingly, it involves a dispute among neighbors.  The Court found that "A report to an arm of government, concerning a matter within the purview of the agency's responsibilities, serves a "legitimate purpose" . . . , regardless of the subjective motivation of the reporter."  The Court also found that reporting to the government was constitutionally protected as a petition for redress of grievances.  Gathering information for use in a possible report to police seems covered by Curry and similar cases.

By a quirk of Florida law, arrests by on-duty police outside the officer's jurisdiction are treated as citizen's arrests.  Such officers, accordingly to the Florida Supreme Court, have no "greater power of arrest outside their jurisdiction than private citizens."   Yet, they may follow suspects, and, if probable cause develops, make arrests.  (However, under the "color of office" rule, if they use their police authority to investigate, i.e., show their shields to get statements or consent to search, the out-of-jurisdiction action is invalid).  It is clear, then, that citizens are not categorically prohibited from investigating crimes and making arrests in public.  Therefore, I see no per se illegality in GZ following Trayvon Martin even if he intended to investigate and, if warranted, make an arrest.  This puts in a different light the statement by the dispatcher to GZ that "we don't need you" to follow Mr. Martin. 

The wisdom of every legal doctrine affecting the case is debatable, including the permissibility of citizen's arrests and neighborhood watches, the liberal granting of concealed weapons permits, limited stalking statutes, and broad self defense doctrines.  Particularly in a former Confederate state, taken together, these doctrines have the whiff of the slave patrol.  But GZ's conduct must be evaluated given the law on the books at the time, which, in my view, quite favors him.