The Law Heard Round The World

Correction Appended: March 30, 2012

The killing of Trayvon Martin has kindled a moral and legal debate over race as searing as any since 1955, when 14-year-old Emmett Till was murdered in Mississippi for allegedly whistling at a white woman. George Zimmerman, 28, a former altar boy and wannabe cop, fired the bullet that killed Martin, 17, on Feb. 26 in Sanford, Fla., outside Orlando. Zimmerman has said that Martin brutally assaulted him. But even if that’s true, what kind of law would excuse Zimmerman’s deadly shot?

When it comes to a confrontation on a dark street, at least two competing impulses come to mind: Do you stand your ground or turn the other cheek? Engage or run? Instinct, evolution, psychology and religion all offer different answers. But the law–which has to wrestle a moral conundrum into plain language–ends up as a blunt instrument trying to solve a delicate puzzle.

In 2005, Florida became the first state to expand an ancient rule of law called the castle doctrine. That doctrine says that if strangers enter your house without permission, you can use deadly force to defend yourself. The Florida legislature decided that the old common law should extend not only to the sidewalk outside your house but to “any other place where he or she has a right to be”–any street, any park, any store: anywhere.

Despite its breadth, only 20 of Florida’s 153 legislators opposed the “Stand your ground” bill. Republican governor Jeb Bush signed the bill into law on April 26, 2005. Since then, at least 25 states have enacted similar expansions of the castle doctrine.

And yet from the beginning, many of Florida’s prosecutors despised the law, which they know as 776.013 of the Florida statutes. When a killer claims he acted in self-defense, state’s attorneys can’t get a murder conviction under 776.013 unless they prove beyond a reasonable doubt–the strictest legal standard–that the dead person did not “attack” the killer, even in cases of a bar fight or a workplace shooting or a road-rage incident.

Consequently, many cops won’t bother prosecutors with purported self-defense cases. The Sanford police department has officially released little information about why cops didn’t arrest Zimmerman the night of Feb. 26. But on March 26, sources leaked some details: Zimmerman told police that Martin punched him in the face and then slammed his head into the sidewalk. Apparently at least one witness confirmed the latter part, although no one saw the initial punch. Also, the leaker said the bullet was fired into Martin’s chest at very close range, which indicates Martin wasn’t running away when Zimmerman shot him.

Leaks tend to spring in sinking vessels, which is why this reconstruction of events should be seen only as a rough (and possibly self-serving) draft of the truth. If it turns out that cops did find Zimmerman with a bloody nose and lacerations on the back of his head, the security-guard-gone-amok narrative may collapse. But in any case, the arriving officers made a choice: they didn’t arrest Zimmerman.

All these questions lead back to the original one: How could Florida enact a law that lets killers go free so easily?

A New Presumption of Innocence

The “stand your ground” law passed at a peculiar time in Florida–a time propitious for Second Amendment purists. On Sept. 16, 2004, Hurricane Ivan crashed into northwestern Florida. A brutal storm, Ivan killed 25, and damages exceeded $18 billion. Looters raided businesses and homes in and around Pensacola, as people did in New Orleans when Katrina struck a year later.

Reporters began to fixate on one story, that of James Workman, 77, who shot and killed a man who broke into an RV where Workman and his wife were staying after Ivan took their home.

Workman was clearly protected under the castle doctrine, but authorities struggled with whether they should take him into custody or charge him. Dennis Baxley, a member of Florida’s house of representatives, says Workman was in legal limbo for weeks. Even though prosecutors eventually declined to charge Workman, Baxley co-sponsored the bill that would become the “Stand your ground” law.

“We wanted citizens to know that if they are attacked, the presumption will be with them,” says Baxley.

But Workman’s case obscured a deeper political agenda. The National Rifle Association had been working for years to advance the idea that the castle doctrine didn’t offer adequate presumption of innocence to gun owners.

The NRA had amassed great power in Florida’s legislature. In 1987, the organization successfully backed a landmark state law that allowed Florida citizens to carry a concealed weapon into virtually any public space. Applicants for a concealed-weapons permit had to pass a background check and were screened for criminal records and mental illness.

The gun lobby’s clout in the state owes a lot to Marion Hammer, a Tallahassee lobbyist who served as the first female president of the NRA in the 1990s. Hammer, a tiny, gray-haired grandmother who once joked that the key to the gun debate was to “get rid of all liberals,” helped craft “Stand your ground” and then persuaded lawmakers to back it, according to gun-control advocates. “Her sway in the Florida legislature has been instrumental for the NRA,” says Brian Malte, director of legislation at the Brady Campaign to Prevent Gun Violence. “It’s why the NRA has used Florida as its laboratory.”

By 2001, when Zimmerman graduated from Osbourn High School in Virginia and moved to Florida, the state had become the most gun-friendly in the nation.

Unintentionally, Florida also created a huge loophole for criminals. “Stand your ground” quickly became a favorite among defense lawyers representing gang members, spouse abusers and drunks, who could now claim that ordinary disputes in private residences or businesses–“any other place” besides the home, according to “Stand your ground”–provided the right to “meet force with force.” In 2004, the year before “Stand your ground” became law, Florida authorities deemed eight homicides justifiable. In 2010, 40 homicides were called justified.

Some 20 million people live in Florida, which makes it unlikely that the increase is a statistical anomaly. In any case, the state’s attorneys in Florida–who are, by definition, obligated to defend state law–have launched unusually blunt criticism against “Stand your ground” in the wake of the Martin shooting. On March 27, the Orlando Sentinel published an extraordinary op-ed by Buddy Jacobs, general counsel of the Florida Prosecuting Attorneys Association, who wrote that the legislature should reconsider the law even as FPAA members must defend it in court.

Fire, but Don’t Draw

All the political dynamics swirl around the moral questions: How could a state get to the point that an armed man can shoot a defenseless teenager and not be arrested? Among the protesters gathering day by day in Sanford, that question leads to a simple answer: arrest Zimmerman immediately. Better to hold him now than let him escape. Better to question him in a cell than let him remain free.

But as pro-gun attorney Jon Gutmacher points out, the law doesn’t explicitly give the cops the power to hold anyone after they have evidence that the shooter has been “attacked in any place where he or she has a right to be.” Gutmacher, author of the book Florida Firearms, Law, Use and Ownership (seventh edition), says that even under “Stand your ground,” gun owners who shoot an ax-wielding lunatic on their sidewalk (technically outside their “castle”) must convince the authorities that they were threatened with death or bodily harm–but once they do, cops must walk away. Gutmacher went on to criticize Zimmerman and his lawyers for not releasing more information that would protect the man under a law that Gutmacher regards as a simple self-defense statute.

But 776.013 has forced authorities to accept thin defenses. Consider the 2007 case of 19-year-old William Wilkerson, who got into an argument with Jason Payne, 22, at an outdoor party in Wellington, Fla. According to state records, Payne was drunk and angry that Wilkerson was flirting with his girlfriend. A squabble ensued, and Wilkerson put three bullets into Payne, who died. Wilkerson, who claimed self-defense under “Stand your ground,” was acquitted of murder, although prosecutors were able to eke out a conviction for discharging a gun from a vehicle. Wilkerson got four years.

One of the stranger elements in the legal landscape of such cases is that Florida law offers a strong incentive to shoot your gun once it’s drawn. Even though the “Stand your ground” law excuses shootings with the barest of evidence, Florida punishes the crime of simply pointing a gun at someone with a mandatory minimum of three years in prison. In other words, you can point a gun and go to prison–or you can fire the gun and go free under “Stand your ground.” It is highly unlikely that Martin died because Zimmerman, an aspiring police officer, knew this legal distinction. One can imagine that Zimmerman was not racist but merely hasty when he drew his Kel-Tec PF-9 pistol.

The Sanford authorities are looking into these questions. The U.S. Department of Justice has launched an investigation into whether Zimmerman violated Martin’s civil rights, and a special prosecutor appointed by Governor Rick Scott is examining cell-phone tapes suggesting the two men were struggling violently at closer range than some initial reports suggested. A grand jury is scheduled to convene on April 10.

The case will unfold slowly in court and will offer only agony to Martin’s parents. But even if Zimmerman is eventually charged, it should be Florida’s gun laws that go on trial.

Seeking justice Protesters in Sanford on March 26. A Florida special counsel is looking at the case anew

A previous version of this article asserted that Sanford, Fla. police chose not to take George Zimmerman in for questioning on the night of the shooting, and that this lapse contributed to the administrative leave of Sanford police chief Bill Lee. Recently released video footage indicates that officers did indeed take Zimmerman into custody that night and questioned him; according to reports, police also asked the prosecutor for an arrest but were refused. Lee stepped down over the criticism directed at his department over the handling of the case.