Skittles, Iced Tea, and a Death Sentence

Date posted: Monday, March 26, 2012

Why Trayvon Martin’s killer might never be prosecuted.

Photograph via Wikipedia

Photograph via Wikipedia

I. Introduction

On February 26, 2012, the Sanford, Florida, 911 dispatcher received a call from neighborhood watch captain George Zimmerman about “a suspicious guy” in Zimmerman’s gated community. Read in a vacuum, Zimmerman’s ongoing updates to the dispatcher give the impression that Zimmerman feared that his life could be in danger: “[t]his guy looks like he’s up to no good or he’s on drugs or something. It’s raining, and he’s just walking around looking about. Now he’s coming towards me. He’s got his hand in his waistband. And he’s a black male . . . something’s wrong with him. Yup, he’s coming to check me out. He’s got something in his hands. I don’t know what his deal is.” Following the call, cries rang out, shots were fired, and George Zimmerman killed seventeen-year-old Trayvon Martin, an unarmed teen holding nothing but a bag of Skittles and some iced tea.

In the wake of Martin’s tragic death, an angry nation has justifiably examined the racial implications of the shooting, the persistent societal mistrust and criminal stereotyping of young African American men, and the American criminal justice system that is so disproportionately prone to incarcerating African Americans that it has been dubbed “The New Jim Crow.” Perhaps the most compelling question is also the most confusing: why wasn’t George Zimmerman arrested?

The answer? He might not have broken the law. And that fact is representative of a disturbing, and growing, trend in the passage of state laws that provide expansive protection to anyone who claims they killed in self-defense. Although invariably framed by their supporters as necessary to protect “the rights of the victim,” these laws encourage vigilantism, provide unwarranted protection to actual criminals, and make all of us less safe.

II. The Law in Question

The now-infamous Florida“Stand Your Ground” law, which boasts counterparts in almost two dozen states, reads as follows:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.[1]

Consider the above transcript of Zimmerman’s 911 call. According to Zimmerman, he saw someone who was up to no good, someone who might have been on drugs, who was coming to check him out, who had something in his hands. It was nighttime; Trayvon was wearing a hoodie; Zimmerman was part of the neighborhood watch. What’s to say that Zimmerman didn’t “reasonably believe it was necessary . . . to prevent death or great bodily harm” when he shot Trayvon, and thus was not guilty of any crime under Florida law?

III. The Legal Reactions

Not so fast, says Dennis Baxley, the Republican Florida State Representative who sponsored the Stand Your Ground law. Baxley explains that the law does not apply in this case because “Zimmerman’s unnecessary pursuit and confrontation of Martin elevated the prospect of a violent episode, and does not seem to be an act of self defense as defined by the law.” Instead, says Baxley, “[t]he Stand Your Ground law, as passed, clarified that individuals are lawfully able to defend themselves when attacked and there is no duty to retreat when an individual is attacked on his property.”

I highlight the final portion of this sentence for a reason. The Florida Stand Your Ground Law, and others like it, have been cited as necessary to ensure that citizens who are victims of a home invasion, or otherwise subjected to the threat of bodily harm in their own home, are permitted to use deadly force against the intruder: the so-called “Castle Doctrine.” Indeed, Representative Baxley himself states that he originally sponsored the law to ensure that Floridians who had shot and killed looters that had broken into their houses in the aftermath of hurricanes were not charged with any crime.

But, while Baxley assumes that the intention of the law is clear cut, there is one small problem with his explanation, particularly with the section I highlighted: as rightly pointed out by Adam Winkler of the UCLA School of Law, an expert on the Second Amendment (and my own constitutional law professor), by its plain language, the relevant provision of the Florida Stand Your Ground law is not limited to home invasions. Let’s break it down piece-by-piece: it allows (1) a person who is not engaged in unlawful activity and (2) who is “where he or she has a right to be” to (3) use deadly force (4) without a duty to retreat (5) if he or she has a reasonable belief that deadly force is necessary to prevent death or great bodily harm to (6) himself or herself or (7) another person or to (8) prevent the commission of a forcible felony. That’s a lot to digest . . . but no matter how you read it, what it absolutely does not say, regardless of Representative Baxley’s post hoc assertions to the contrary, is that it is limited to attacks on a person’s real property. In other words, the law gives you license to kill whether you are in your home, at the mall, or on the streets of a gated community.

IV. A Troubling History

What is particularly problematic about the 2005 Florida Stand Your Ground law (and its counterparts nationwide) is that it upends decades of legal developments specifically designed to strike a balance between the right to self-defense and the prevention of vigilante justice. As former prosecutor Gregory O’Meara notes, the statutes and common law governing the self-defense doctrine in most states require the person claiming the defense to prove that he reasonably thought that he (or a third party) was unlawfully under imminent deadly attack, that the deadly force taken in response to this attack was necessary to stop the attack, that the defender acted solely with the intent to thwart the unlawful attack, and, in many jurisdictions, that it was unsafe for the defender to have withdrawn from the confrontation before using deadly force. This defense applies “even if the defender is completely wrong about the situation but his mistake is reasonable about either the imminence of the deadly attack or the necessity of his forceful response.” Finally, the question of reasonableness is usually one for a jury, ensuring that the community is (at least nominally) given the opportunity to determine whether an individual was justified in his use of deadly force. Taken as a whole, the defense is aimed at preventing the use of gunfire as conflict resolution and to ensure some legal accountability for people whose objectively unreasonable beliefs prompt them to kill first and ask questions later.

But this is no longer the case for many of our states, including Florida, which expanded their gun laws in such a way that allows people to shoot without having to prove that they were actually in danger. As Professor Winkler notes, Baxley’s explanation that the law does not apply to people who seek out or escalate a confrontation rings hollow because according to the law’s plain language, “[s]o long as someone reasonably thinks he or someone else is in danger, he can shoot to kill, regardless of whether the shooter is the one who initiated the hostile confrontation.” The law also does away with the duty to retreat and, unlike laws in other jurisdictions, does not require that the person have actually witnessed someone committing a felony before shooting at them. Perhaps most egregious, a separate provision of the Florida law removes the question of reasonableness from the jury altogether: such an individual is (almost always) completely immune from civil or criminal liability, and cannot even be arrested unless the police find probable cause that the person used unlawful force. Rather than protecting the rights of homeowners, according to Florida law enforcement officials, the law has resulted in chaos: a nearly threefold increase in justifiable homicides and acquittals in cases of road rage and gang violence.

The death of Trayvon Martin reemphasizes that sweeping stand-your-ground laws, like the one in Florida, provide an unwarranted opportunity for individuals to claim self-defense under manifestly unreasonable circumstances. Pimped by pro-gun lobbyists,[2] these laws are by and large a part of the gun rights movement’s push to allow people to carry firearms essentially anywhere. The laws blur the line between victim and aggressor, encourage a culture of vigilantism, and are ambiguous to the point of absurdity. In Florida, even if you initiate or escalate a confrontation, you can kill anytime, anywhere, and without a thought of retreat so long as you “reasonably” believe your life is being threatened (say, by an unarmed teenager carrying Skittles and iced tea); virtually everyone is now at the mercy of the “reasonable beliefs” of anyone with a weapon and an attitude.

V. Justice is Not Served

At the time the Florida law was being debated, Florida governor Jeb Bush described it as “a good, common-sense, anti-crime issue.” Its sponsor, Representative Baxley, insists that the law was necessary to clarify an individual’s legal rights during a home invasion. Wayne LaPierre, executive vice president of the National Rifle Association, said the Florida law was needed to “empower the crime victim” because “[g]ood people make good decisions.” When George Zimmerman shot Trayvon Martin, he was not in his home, he was the victim of no crime, he was making the worst of all possible decisions, and he was standing no ground. He also may never be arrested for his actions. Is that what passes for justice in America?


[1] This is the portion of the law that arguably applies to Zimmerman. Other provisions of the law do apply specifically to home invasion situations, as Florida Republican sponsors argue was its original intent and the limits of its legal protections.

[2] The NRA heavily lobbied in favor of the Florida Stand Your Ground law, reported triumphantly upon its passage, and has repeatedly stated its intention to use the Florida law as a template to pass similar legislation nationwide.

More from Supreme Court Cheat Sheet

Democracy For a Price
The Law of the Land

Tagged in: , , , ,


Sam Ennis is an attorney working for a national law firm that represents Indian tribal governments, Alaskan Native corporations, Native American-owned health corporations, regional tribal confederations and Native American health and social service providers. The views and opinions in this article do not represent those of his firm or its clients.

View all posts by Sam Ennis →

You might also like...


  1. David BarnwellMarch 26, 2012 at 6:48 pmReply

    Your argument is nonsense, if the stand your ground law meant that a person like Zimmerman could say that the streets of a gated community was a place that they had a right to use deadly force on then so could Trayvon Martin. His father lives in that community, so he had a right to be there. So if he had a right to be there, what gives Zimmerman the right to shoot him? What if Zimmerman had shot any other resident of that community, your arguement would give him the right to do so, and it would give the person he shot at the right to shoot back.
    So two people could be dead and no-one be at fault. Your argument is in fact ridiculous, a street, whether in a gated community or not, has to be thought of as a common thoroughfare, ie, no-one owns it. Zimmerman has no legal protection for his actions and the Sanford PD have no protection for their inaction.

    • Dickie SimpkinsMarch 28, 2012 at 3:00 pmReply

      The argument is not nonsense. The law says that a person must be in a place they have a right to be to match force with force. Surely Zimmerman was in a place he had a right to be, the street…much like you or I have a right to be on the street. You don’t get to use deadly force just because you are in a place you are allowed to be it is simply a requirement that you are in such a place for the rest of the laws provisions to apply.

      I would, however, say that the law does not realy apply to the actions of Zimmerman and, if all facts in favor of Mr. Martin are true, he would be criminaly liable for killing the young man. Rep Baxley is correct in stating that Zimmerman’s action of following Martin and instigating the situation would mean the law would not apply. By following Martin, Zimerman became the instigator or attacker and he would no be allowed to claim this defense. Even if you accept the story of Martin attacking Zimmerman after Martin was followed then Martin would be entitlted to claim the defense, if he were alive, and Zimmerman would not.

      I don’t think the argument that Zimmerman can claim the defense and get away with it is right. I make no judgement on the actual law itself, that would take ages. The problem in this situtation is not in the law or its application but in the actions of the investgating officers who chose not pursue a full investigation of the incident before letting Mr. Zimerman leave with his weapon. That will prevent justice more than the law will.


  2. The Race Card Card | CONSTRUCTIONMarch 28, 2012 at 2:10 pmReply

    […] soul searching,” looking both at the laws at play (presumably referring to Florida’s “stand your ground“ law) and the specific circumstances of the killing. He closed on a more personal note, directly […]

  3. Ryan HendrixsonApril 2, 2012 at 9:31 amReply

    Well written article, dude! I’m no “law talking guy”, but from everything I’ve seen in the media and read online, it seems that there is a significant chance Zimmerman gets away with this. A law like the stand your ground law does seem to allow for the highlighted problem, but shouldn’t people be allowed to defend themselves anywhere they are? I suppose the burden of proof falls on the DA to prove whether or not he felt threatened? What if Trayvon did threaten Zimmerman, even if Zimmerman was following him? I guess what’s scary to me is that I can’t think of a way that a state could pass legislation that would satisfy all parties

    • Sam EnnisApril 3, 2012 at 2:06 pmReply

      Ryan: the problem that most people have with this type of stand your ground law is that it specifically allows for the use of deadly force without imposing a duty to retreat upon the shooter. This makes it much easier for an individual to shoot and then claim that he or she felt threatened without having to take common-sense safety precautions like running away, calling the police, etc (assuming it was safe to do so). The biggest problem with Florida’s specifically is that it actually provides immunity to defendants who satisfy the stand your ground law. Normally, the reasonableness of this type of action would be determined by a jury, which would hopefully allow the community to decide that someone was using self-defense as a bogus excuse for a legitimate murder. Here, though, the shooter cannot even be prosecuted, i.e. no charges may even be brought, thus eliminating that safeguard against unreasonable killings in the name of self defense. Third, the stand your ground law is what’s known as an affirmative defense in criminal law, which means that the defendant had the duty to prove that it applies (whereas the prosecution has a duty to prove the elements of the actual crime, be it murder, manslaughter, whatever). The problem is that the prosecution’s burden of proof is higher than the defendant’s in criminal cases, and it’s very difficult to prove that a stand your ground law doesn’t apply and still prove the elements of the crime beyond a reasonable doubt. Faced with extremely limited resources, many state prosecutors simply choose not to prosecute people who will be able to at least argue that stand your ground applies simply because the odds of getting a conviction aren’t worth the expenditure of resources. That is, in essence, the problem: not that these laws give an individual the right to defend themselves, but that they deter any meaningful judicial or factual inquiry into whether the shooter was acting within the parameters of the law.

      • Bob HallApril 11, 2012 at 3:15 pmReply

        “A person who is not engaged in an unlawful activity” is the part that leaves Zimmerman without a leg to stand on. It is not lawful to stalk, follow, and pursue people, making them fear for their life and physical safety.

        Arguing that Zimmerman had the right to be on the street and walk on the street and even speak to Martin miss the point. Zimmerman had the right to do all that, but he didn’t have the right to frighten Martin. Had a cop gone by, and Martin had complained to the cop, “That man is following me,” the cop would have told Zimmerman to cut it out. The cop wouldn’t have arrested Zimmerman if he was cooperative, but technically what he did falls under some form of “disturbing the peace” in most jurisdictions.

  4. Cliff TyllickApril 2, 2012 at 11:36 pmReply

    Sam, what about the constitutionality of the law itself? I’ve heard it said that the state of Florida has deprived Trayvon of due process in the investigation of Zimmerman’s suspicions. After all, if this law does protect Zimmerman, then it has also made it legal for Trayvon to have been executed for the “crime” of looking suspicious to Zimmerman, and for that execution to have been carried out even before the police arrived to investigate the complaint. Even King George III’s redcoats offered more process than that.

    • Sam EnnisApril 3, 2012 at 2:10 pmReply

      Cliff: I’m not a criminal law or criminal procedure expert, and so can’t really give an informed opinion on the due process argument, but it is an interesting point. I don’t think you could successfully allege a due process violation for the actual stand your ground aspects: for example, I believe every state statutorily authorizes the use of deadly force by private citizens in certain contexts (like the Castle Doctrine). So, even if the law, in practice, affords wide legal protections to alleged self-defenders, that in and of itself would probably not rise to the level of a due process violation. What could, though, is the accompanying immunity from prosecution, which conceivably could be read as depriving the victims of a crime of legal recourse and thus violating their due process rights. Again, I’m simply not familiar enough with due process in the context of criminal law and procedure to be able to assess that validity of that kind of argument (and I suspect that today’s fairly conservative federal judiciary would be hostile to such a claim), but it’s an interesting avenue nonetheless.

      • LennySandsApril 4, 2012 at 1:55 amReply

        I like Cliff’s due process argument a lot actually. I think the thing that separates the “Castle” laws from these “Stand Your Ground/Shoot-em-up” laws is the fact that the Castle laws involves someone actually being on your property, a place where they have no right and are committing a prima facie crime/tort, whereas these shoot-em-up laws allow the vigilante to make a ton of judgement calls making the due process issue even more apparent.

        I mean, it doesn’t take a lot of reasoning and thought to determine whether someone is on your property without permission. When you compare that to the amount of reasoning that goes into determining whether someone in a public or semi-public, or private place that doesn’t belong to him/her, and whether that person should be there, and whether that person is dangerous, or committing a crime, or attempting to commit a crime, or intends to commit a crime, or looks like he’s capable of committing a crime, or on drugs, or tough, or in a bad mood, or black… (catch my drift?), you can see how big of a jump that is.

        • Sam EnnisApril 5, 2012 at 11:08 amReply

          What concerns me about the due process argument is how easily it could be extrapolated, fairly or unfairly, into a slippery slope argument of “well, if a victim has a due process right to having the attacker/robber/etc brought to justice, then isn’t every discretionary prosecutorial declination a due process violation?” I think that the critical distinction that could be used against such an argument is that when a prosecutor declines to bring charges, at least they were able to weigh the factors and make that determination; by fully immunizing a shooter, stand your ground laws remove even that modicum of honest discretion.

  5. Bob HallApril 11, 2012 at 3:07 pmReply

    What’s to say that Zimmerman didn’t “reasonably believe it was necessary . . . to prevent death or great bodily harm” when he shot Trayvon, and thus was not guilty of any crime under Florida law?

    That’s not what “reasonable” means in the law. You’re confusing it with “genuine” or “sincere,” but it doesn’t mean that. A person could genuinely be terrified out of their wits without their fear being legally reasonable. “Reasonable” means that an “average person” in the same circumstances would feel the same fear.

    So who’s to say if Zimmerman’s fear was reasonable? The jury.

  6. After Newtown: The Second Amendment and Gun Control | CONSTRUCTIONDecember 26, 2012 at 1:44 pmReply

    […] sweep of many state legislatures in the 2010 midterm elections, state-level pro-gun laws have actually […]

Leave a reply

Your email address will not be published. Required fields are marked *