Ryan Sibley of the Sunlight Foundation, which does outstanding work in making government documents, including statutes, accessible, understandable, and making government itself transparent, has used some of the Foundation’s electronic search tools and concluded that a number of states – at least ten – adopted language identical to the Florida statute which may govern prosecution for the death of Trayvon Martin. See 10 States Copied Florida’s “Stand Your Ground” Law. Mr. Sibley asked an excellent first question about the Florida law – is it part of a trend? – and we’d like to add to the discussion. We think the self-defense statutes (and their specific retreat provisions) – and their histories – are important, unquestionably essential to any discussion of these events. But – equally necessary is at least a mention of firearms licensing laws and practices, community-based safety patrols, and the use of deadly force in the United States, not in all circumstances, but when the force is used under color of law – that is, in the name, at least, of the law, crime prevention, and public safety.
I can’t speak to the other 49 states, but New York adopted its Penal Law Article 35 in the 1960’s. Article 35 is about “Justification,” the breaking of any regulation or law when it outweighs the rule to be violated. It’s difficult to write these things well, given the many – perhaps infinite – possible factual permutations. For instance, it’s Article 35 which makes it legal for a police officer or firefighter to run a red light when en route to an emergency, but not when, for instance, on a meal break.
With respect to deadly force, Article 35, under a number of circumstances involving the threat of harm to self or others (deadly force, rape) certain other crimes (such as arson), permits the use of deadly force unless the person acting can retreat with absolute safety to self and others, and knows that safe retreat is possible, and that the threat is over.
What makes this – on the basis of facts as widely reported – unjustified, if we’re using a statute like New York’s, is the lack of anything that might be interpreted as any actual risk of any harm or threat, except, perhaps – in the worst possible case – simple trespass. Simple trespass – for instance, stepping on to property to allow a parent with a baby carriage or walking with a toddler to pass unimpeded on a narrow sidewalk – is committed millions of times a day by polite, upstanding citizens. In New York, it’s only a violation – not even a “crime.”
More recent reports indicate that the officers on-scene apparently made a reasonable assessment: that the killing was not justified, and that it was negligent, thoughtless, but not cold-blooded, calculated or premeditated. Of course, initial charges after arrest aren’t binding on prosecutors.
What’s missing – in my view – from public discussion – is how we’re going to make sure this doesn’t happen again. All the ingredients are ever-present: anxiety about crime, xenophobia, de facto segregation, and ready access to firearms.
At the risk of alienating parties on all political flanks at the same time, I think we could start with the analogy of the automobile. We don’t permit vehicle operation without some training and education, and tests which increase in difficulty in rough parallel with the risks associated with particular types of vehicles: by weight, length, cargo hazards (oil tanker trucks), or passengers (ambulances and school buses).
By way of analogy, if we’re going to permit people to carry handguns, might we not link it to training requirements? Two countries with nearly universal access to firearms, and widely differing cultures, are Israel and Switzerland. Both have more or less universal conscription, and their military training includes instruction in firearms handling, storage, transportation, and, most importantly, use. Both have exceptionally low rates of homicide.
And community patrols: we don’t permit people to join volunteer fire departments, ambulance squads, or search-and-rescue (SAR) teams without applications, background checks, initial and ongoing training and certification, and at least basic equipment and staffing levels. Did this shooter – or other members patrolling with him – have flashlights? With sufficient illumination, it would have been readily apparent that the young man was unarmed. Would Zimmerman have fired on a clearly unarmed man? As he approached, did he simultaneously place cover or concealment (such as an automobile, or architectural/landscaping elements) which would have afforded him some reduction of risk had the young man actually been armed?
This case is horrific – especially because it is so clearly preventable. It is of an entirely different character than the Mississippi case which led to guilty pleas this same month, involving a group of young white men, who decided as a group to find and attack a black man for no reason other than hatred. See “Three Plead Guilty to Hate Crimes in Killing of Black Man in Mississippi,” by Kim Severson of Tbe New York Times.
There are, of course, other deeper elements in these events: drug prohibition laws which are heavily enforced against young men of color, in some communities effectively criminalizing the status of being male, black and in public; and school and housing systems which are effectively segregated. None of this helps to break down deeply ingrained attitudes; that may take generations.
But what we can do in the short term is to employ evidence-based policies (training for neighborhood crime patrols, better and more training for police officers) where the damage is being done, and where it can be predicted to recur: street encounters between representatives of the legal system (volunteers or paid) and young men of color.
If we’re not willing to see the pattern AS a pattern, it’s not likely that we’re going to do much about it; and there is no reason to believe that it will end without concerted social political discussion and action.
