Wednesday, August 1, 2012

George Zimmerman and the Right to Violence (Part One)

What follows is the first part of an 1800-word piece I wrote after George Zimmerman killed Trayvon Martin. It connects recent events to my research on nineteenth-century violence and criminal justice. I have split it up into parts, and will post a final draft (with footnotes) on SSRN after the series is posted. I hope you enjoy it! And thanks, Karen, for the warm welcome to Legal History Blog!
George Zimmerman and the Right to Violence
For more than 200 years, the Constitution and common law have not just enabled but tacitly encouraged citizens to respond to provocation with violent force. Though scholars have already investigated the developments that eroded the duty to retreat, a major part of this story has been overlooked: a deep-seated American apathy toward interpersonal violence. The Stand Your Ground law in Florida has received intense scrutiny in the aftermath of the killing of Trayvon Martin. But to understand Stand Your Ground and its roots we have to look well beyond chapter 776 in the Florida code.

(Image of George Zimmerman from Wikipedia)
We all know how the encounter between George Zimmerman and Trayvon Martin ended, but we should pay careful attention as we learn more about how it began. Witness reports suggest that the two were first entangled in a rather run-of-the-mill scuffle. In this case, however, the violence escalated. Zimmerman had a gun; his animus and adrenaline likely did the rest. Indeed, many homicides begin as fights involving individuals who, like George Zimmerman, refuse to back down. The laws of Florida and the United States entitled Zimmerman to carry the pistol with which he killed Martin. In decisions like Heller and McDonald, the Supreme Court has affirmed an individual’s right to bear arms. So emboldening the public to take matters into their own hands can have calamitous consequences, given an expansive view of the Second Amendment. A punch-up can turn into manslaughter in seconds once concealed weapons come out of their holsters.
Zimmerman will probably escape conviction for second-degree murder, as the prosecution will have a very difficult time proving its case. For example, Zimmerman’s broken nose might be sufficient evidence of self-defense. It is also doubtful that the prosecution will succeed in proving that the accused had a “depraved mind” as required by Florida statute. Even if the court deems his defense “imperfect”, Zimmerman will at most be convicted of manslaughter. It is not entirely surprising that Sanford police department and prosecutor’s office chose not to prosecute Zimmerman at the outset, but only after a media firestorm demanding his arrest.