Several exchanges I’ve had with regular readers have reminded me that it is all too easy to assume that everyone has similar bodies of knowledge, to take such things for granted. One of those bodies of knowledge relates to the law governing self-defense, unarmed and armed. Those who have been following this series may recall that I briefly dealt with issues of deadly force, particularly applying those guidelines to the Martin case in Update 4. A visit to that article might be useful, as would a visit to my series of articles on the rationale for gun ownership, most particularly Article 4 which deals with deadly force issues with great specificity.
However, the issue the concerns us in this article is raised by “Clark County Criminal Cops,” who, in response to Update 9, wrote in part:
The problem is, your arguments are perhaps the most well formed and dispassionate I have seen, So much so that I know you are too intelligent to actually believe, ’All Zimmerman or any citizen needs in order to watch, even follow, approach or speak with another citizen is the desire to do so. None of these actions gives the person being watched, followed, approached or engaged in conversation grounds to attack.’
You can’t tell me that if you we waking home, alone at night and some guy starts following you, watching you, stalking you, that you wouldn’t perceive that as a threat? Now let’s arm the guy and your argument is preposterous. If some tweaker [reference to Zimmerman] is watching me, following me, and then finally approaches me and I see that he is armed, well as they said in Tombstone, he better skin that Smoke Wagon pretty quick.
The issues raised here are important, not only in the Martin case, but in everyday life, but the primary issue is: when is it reasonable and legal to use non-deadly force against another?
In Update 9.2, “Omegapaladin” replied, again in part and quite correctly:
So, if someone follows me on a sidewalk, I am legally justified to attack him? I actually had a car follow me after a basketball game back in high school. Would I have been justified in attacking the driver or running the car off the road? If George is in a place that he is legally allowed to be and Trayvon is in a public place, he could follow Trayvon for hours on end.
Which in turn provoked this reply from “Clark County Criminal Cops:”
‘So, if someone follows me on a sidewalk, I am legally justified to attack him?’ Yes! If an armed man is tracking me in the darkness of night, you bet I will defend myself from his twisted intentions. . .
Please keep in mind that I’m not including the complete comments involved for no reason other than that I’m confining this brief update to a single issue. Those interested in reading the complete comments need merely take the links to the appropriate updates. However, those doing that will discover that “CCCC” also suggested that George Zimmerman was himself under the influence of drugs. My former Confederate Yankee (now closed to all but archival access) co-blogger, Bob Owens, provides an appropriate response to that line of thought at his self-named blog. It’s brief, definitive, and certainly worth your time.
In our free society, everyone has the absolute freedom to watch anyone they like for any reason or no reason. I may, if I wish, sit on a park bench and idly watch people as they sit on park benches, walk, run or bicycle by, or frolic in the park. They may do the same. In fact, we can sit on opposite benches and watch each other through binoculars if that pleases us.
By the same token, anyone may decide that they like the direction the person in front of them is walking or driving, and in effect, “follow” them. They may also actually choose to follow them for any reason or no reason. The person being “followed” might not like it, but if that is all that is happening, no crime is being committed, and self-defense is not implicated, and that’s a good thing indeed, for it allows the maximum liberty for all.
If you’re walking down a city sidewalk, or even in a mall, a great many people are “following” you. It’s likely that most or all of them could care less about you, and by mere chance simply need to walk in the same direction, but that’s reality. Again, self-defense absolutely does not apply, and if, in a fit of paranoia, you suddenly round on the person behind you, grab their lapels, slam them against the nearest building and demand to know why they are following you, you have committed assault and they are now within the law if they use force to fend you off.
Of course, if you notice that the same person appears behind you day after day, and clear patterns emerge, patterns that cannot reasonably be attributable to mere chance, stalking laws might be applied, but that is quite another issue—it has no application whatever in the Martin case–and an article for another time. The point is that in a free society, the law is generally very careful about restricting and criminalizing what is usually nothing more than perfectly common and innocuous behavior.
None of this means that you shouldn’t be watchful and aware of your surroundings. The old saying applies: “just because you’re paranoid doesn’t mean they’re not out to get you.” There is, however, always a clear difference, in logic and the law, between being unreasonably paranoid and reasonably vigilant (which is the root word of “vigilante” by the way: one who is watchful).
So when can you use force? Only when a reasonable person in the same circumstances would reasonably believe that they were about to be attacked, or were being attacked. If it is absolutely clear to you that someone is about to attack, you are not required to allow them to land a blow before defending yourself, just to be absolutely certain of their hostile intentions. That blow could seriously injure you or render you unconscious and at their mercy. Of course, once anyone strikes you, there is no question about the legitimacy of and immediate need for self-defense.
In any case, you must be able to clearly articulate the things the person you attacked did to make you—a reasonable person—believe that you were about to be attacked by that person. You can’t just hit first and ask questions later.
An attacker can communicate their intentions in a variety of ways. Let’s say that someone is following you one night as you walk down a lonely, poorly lit sidewalk. You cross the street, they cross the street. You turn a corner, and they follow. You walk faster, and they walk faster, and soon, they break into a run and begin to close the distance between you. Any reasonable person might believe they were in danger, and if overtaken, might reasonably use force to defend themselves.
There are a variety of other things–smart things–one should do in such a case before using force—if possible. Reaching other people, entering a building where others are present, putting solid objects between you, asking your pursuer what they want and demanding they stop. If they refuse to answer or refuse to stop, the case for self-defense is strengthened, and if they verbally communicate their intent to cause you harm, it’s even stronger. In this sort of case, what’s happening fundamentally changes. At some point, it’s no longer a situation of someone being followed, but of being actively pursued, and in that case, any reasonable person would believe they were in danger.
But again, we must be cautious. Perhaps the person walking down the street behind us is simply going the same way. Perhaps they’ve just had a fight with their wife and aren’t really aware of where they’re going or who is around them. Perhaps they’re hoping to catch up to you to ask directions. Perhaps they’re handing out invitations to a neighborhood homeowner’s meeting—or they’re a Mormon missionary–and you just decked them. Oops. Have fun explaining that to the police.
THE MARTIN CASE:
CCCC suggested that Martin must have perceived Zimmerman as a threat, and that adding a firearm completely changes things and provides carte blanch for self-defense. The currently available evidence indicates that Martin was aware that Zimmerman was watching him. However, it is far more likely–again, given the currently known evidence–that Martin ran from Zimmerman, who was sitting in his motionless vehicle at the time, because of his guilty conscience and/or need to conceal evidence of his drug use than out of any real fear. In fact, the evidence indicates that Martin not only approached Zimmerman after he was aware that Zimmerman was watching him, but actually circled Zimmerman who remained in his vehicle as Martin did. This would hardly seem to indicate real fear of an imminent assault, and a man doing nothing more than sitting in a motionless vehicle is hardly communicating a threat. Genuine fear would cause a reasonable person to go out of their way to avoid the object of that fear, would it not?
But for the sake of argument, let’s allow that Martin ran out of fear alone. Let’s even concede that it was somehow a reasonable fear. At that point, Martin was only about a block from his temporary home and Zimmerman was heard on the 911 recording getting out of his vehicle and jogging after him, trying to keep him in sight (not pursuing him, but merely trying to keep him in sight so he could report his position to the responding police). He quickly lost Martin, who had a substantial head start, and within 30 seconds could easily have been home, indoors, out of sight of Zimmerman and the responding police. The evidence also indicates—and let’s remember that at the initial bond hearing, Dale Gilbreath, the special prosecutor’s investigator, admitted that the prosecution had no information to discount Zimmerman’s account–that Martin could have had no idea that Zimmerman was armed, and that he become aware of this only during the actual struggle and only seconds before being shot.
If Martin truly were in fear of assault, hiding and approaching Zimmerman would not be a rational thing to do, yet the evidence indicates that’s precisely what he did rather than immediately and finally run to the safety of home. The evidence also indicates something quite interesting: Martin removed the ear buds to his cell phone he had been using to speak with “DeeDee,” and the large button affixed to the chest of his hoodie (which was clearly visible on the chest of his hoodie in the 7-11 security camera footage as he left the 7-11) and put them in his pockets prior to confronting Zimmerman. They were both found in his pockets. Here’s a screenshot of the PDF of the relevant Sanford Police evidence form.
Notice where the police found these items, particularly the button. Why would Martin remove that button and put it in his pocket? The most likely reason is because he knew he was about to get into a fight—he was going to initiate it—and didn’t want to lose the button and/or didn’t want such a distinctive identifier visible. After all, he didn’t known Zimmerman, and he must have believed Zimmerman didn’t know him.
The evidence indicates that Martin approached Zimmerman, who had minutes earlier lost sight of Martin and believed he was gone, and demanded to know why Zimmerman was following him (Zimmerman was then merely walking back to his vehicle and a meeting with the responding police). At that point, neither had violated the law or indicated intent to attack the other. Zimmerman replied by asking what Martin was doing there. At that point, there was likely still no obvious intent to assault, though it might safely be believed that Martin was not behaving in a friendly manner. However, when Martin broke Zimmerman’s nose without warning, Zimmerman clearly had grounds for self-defense.
This is what the best available evidence indicates. Until the moment Martin struck Zimmerman, neither had violated the law relating to assault, and self-defense was not implicated. Both were perfectly able to approach and converse with the other, and if the encounter had remained in the conversation stage, self-defense would never have become involved. Of course, we now know that Martin was violating the law through his drug use at the time.
One might assert that things are other than I’ve stated here, but the evidence–as it is currently known–does not support other interpretations, and once again, please remember that the special prosecutor’s investigator has admitted that to be the case while under oath.
Reality is as I stated it: one may watch others, walk where they please, approach others, speak with them, ask them questions and do any other thing that is not specifically illegal. It is only when their conduct goes beyond such harmless expressions of individual freedom and clearly indicates to a reasonable person that a physical attack is imminent—or when an attack has begun–that self-defense may reasonably be employed. Being suspicious or afraid is not sufficient for suspicions and fears may be unreasonable and unfounded. The law requires more—always.
“Geez officer, he kept followin’ me and yellin’ somethin’ at me and he wuz wearin’ that dark outfit. How wuz I supposed to know he wuz a Mormon missionary before I broke his nose?”
Oooops + handcuffs.