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Monday, July 08, 2013

"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.

Posted by Jack Chin on July 8, 2013 at 02:33 AM in Criminal Law, Current Affairs | Permalink


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Posted by: AGR | Jul 11, 2013 12:57:09 AM

Absolutely insane.

Posted by: AGR | Jul 10, 2013 7:33:45 PM

If statute in Florida does turn out to to categorise as not-unlawful what this Zimmerman chap has done, then in support of the idea that one can wander about in society unarmed without being shot to death, we need to hope that this jury will issue a ‘neighbourhood’ legal policy decision -------via a nice bit of jury nullification.

Everything about this defendant’s conduct seems to shout out that here is the paridigm case for not allowing this remarkable defence to prevail.

Crazy stuff.

Posted by: Geoff | Jul 9, 2013 8:11:31 AM

Well, Zimmerman saw to it that we will never have Martin's side of the story. That is the advantage Zimmerman has. I think my speculation is reasonable given the circumstances.

Posted by: AGR | Jul 8, 2013 10:49:28 PM


I think you are speculating, but let's assume you are correct. If a reasonable stroller was afraid that a stranger who was following him was going to kill him, even though the stranger had taken no action yet, might the stroller not conclude that it was appropriate to attack the stranger first in order to have the best chance to survive the encounter? If that's what happened, even if Martin was reasonably afraid, GZ is still not guilty.


To beat a dead horse, the question is not whether we or the jury believe GZ or not. The question is whether the state has proved the falsity of GZ's testimony and other facts showing guilt beyond a reasonable doubt. There was unkind language on both sides; the more racially charged came from Martin, GZ's was consistent with trying to help enforce the law--assholes meaning burglars. (Or are you interpreting GZ's use of the word "asshole" to mean "black people who have done nothing wrong"? I just don't think it will bear that weight.)


Posted by: Jack Chin | Jul 8, 2013 10:30:06 PM

There is every reason to believe that Martin feared for his life, and was fighting for a life that was eventually lost at the hand of Zimmerman.

Posted by: AGR | Jul 8, 2013 10:12:15 PM

AF: Even after reading 776.041, I agree with Douglas Levene that the definition of "provocation" is not so important.

Let's take for granted that GZ "provoked" the situation. Even so, the question is whether, when GZ shot TM, 1) GZ had a means of escape and 2) GZ had a reasonable belief of "imminent death or great bodily harm." See Fla. 776.041(2)(a). If the evidence does not exclude the possibility that TM had pinned down GZ and was beating GZ badly, then GZ must be found not guilty, even if he was the provocateur.

(To my mind, 776.041(2)(a) is another good example of "The wisdom of every legal doctrine affecting the case is debatable.")

Posted by: BMS | Jul 8, 2013 8:29:30 PM

Professor Chin: One question is what "provocation" means. Another question is whether one should believe George Zimmerman's self-serving testimony that Trayvon Martin was the aggressor -- in any sense of the word -- in light of the indisputable evidence that the incident began with George Zimmerman pursuing Trayvon Martin while muttering "these assholes always get away."

Posted by: AF | Jul 8, 2013 7:09:49 PM

The question is what "provocation" means. I've looked at Florida law and could not find a lot of details. Some states are very lenient. The Model Penal Code denies the defense if "the actor, with the purpose of causing death or serious physical injury, provoked the use of force against himself in the same encounter." MPC 3.04(2)(b)(i). There's a great old case in which the defendant is denied the defense because he is attempting an illegal arrest which uses "unlawful act" as the standard, which is common in other cases. Stinson v. State 76 Fla. 421, 80 So. 506 (1918).

Posted by: Jack Chin | Jul 8, 2013 4:56:33 PM

The statute avoids the scenario I described. It really could not be otherwise.

Posted by: AGR | Jul 8, 2013 3:55:41 PM

Douglas Levene: Check out FL 776.041 "Use of force by aggressor"

Posted by: AF | Jul 8, 2013 2:56:52 PM

That is the weakness of the law. You pick a fight with an unarmed person, they start to beat you up, you pull out a gun and shoot them, and say it was in self-defense and then walk away.

Posted by: AGR | Jul 8, 2013 1:59:42 PM

"his pursuit of Martin makes it likely that Zimmerman provoked the confrontation"- not sure how this is relevant. I believe that the law on self defense in Florida is that one may use lethal force if one is reasonably in fear of death or great bodily injury. Who may have "provoked" the confrontation is not relevant. If you have some Florida case to the contrary, perhaps you could share it with us.

Posted by: Douglas Levene | Jul 8, 2013 1:42:51 PM

Not sure who is arguing that Zimmerman was breaking the law in pursuing Martin. The point is that his pursuit of Martin makes it likely that Zimmerman provoked the confrontation, notwithstanding his self-serving testimony to the contrary.

Posted by: AF | Jul 8, 2013 11:05:38 AM

Think of how we would view this if a man were following a woman in this same manner. If the woman were alarmed and fearful, we would accept her response. I gather most people would feel that the man was doing somethng inappropriate, if not illegal because of our common understandings about gender. In the conventional wisdom of America, Martin is the predator, no matter what. No, it is not illegal to follow someone. But following a person with a gun because you do not think he belongs in a neighborhood is a problem. This is the way black people live in ths country, and it speaks to our second class citizenship.

Posted by: AGR | Jul 8, 2013 9:44:27 AM

I think the commenter on the previous post was using "stalking" in a colloquial, rather than legal, sense. Zimmerman was (by his own admission) stalking Martin in the sense of a stealthy pursuit.

Posted by: Griff | Jul 8, 2013 9:40:37 AM

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