george_zimmerman*WASHINGTON, D.C. –  Despite all the complaints about the Zimmerman verdict, gun owners frequently shoot unarmed children, cops shoot unarmed suspects, and spouses shoot each other, and all without any punishment, because of the very broad protection afforded by the legal doctrine of self defense.

These killings without punishment will almost certainly continue, says the public interest law professor who articulated the defense in one of the most famous and controversial cases.  Here are just a few actual cases which have some remarkable similarities to the facts of the Zimmerman case.

* HORN:  A white homeowner, concerned about a suspected break-in next door, called 911, and was told repeatedly not to go after the suspects since police were on the way.  However, he disobeyed, and followed, shot, and killed two Latino men.  A grand jury refused to even indict him.

* GOETZ:  The so-called “Subway Shooter,” a white man, shot four black youths in a NYC subway car because he felt they were menacing him, then ran away and hid for several days.  He was found not guilty of any of the shootings, based upon his claim that he acted in self defense.

* PEAIRS:  A homeowner shot and killed a teen who was innocently approaching his house.  The shooter had said “freeze,” but the student didn’t understand the command.  The shooter was initially released, and only charged because of public pressure.  After a 7-day trial, he was found not guilty because of self defense.

* ROWAN:  In the so-called “Jacuzzi Gunman” case, a black homeowner shot an unarmed white youth who was in his backyard swimming, and clearly presented no threat since he was wearing either nothing or just his wet underwear. The homeowner was never even charged for the shooting.

* THOMAS: An adult opened fire, on an SUV full of teens, over an alleged drug deal.  Two were injured, one fatally.  The SUV was apparently driving away when the shots were fired, but it was argued that someone could have jumped out of the car and shot at Thomas.  A grand jury accepted the argument of self defense.

* JUDE: A driver shot a pedestrian walking in front of his car, allegedly waiving his arms and carrying what Jude thought might be a metal pipe, but was actually a dog leash.  Jude was never even arrested.

* GARCIA: Garcia had chased a suspected burglar more than a block, and then stabbed him to death when the thief swung a bag of stolen property at him.  The judge tossed out a charge of second-degree murder, finding that Garcia was “well within his rights to pursue the victim and demand the return of his property.”

Mistakes are inevitable when citizens are suddenly confronted with situations they might believe are threatening.  Indeed, as the U.S. Supreme Court has determined, “detached reflection cannot be demanded in the presence of an uplifted knife” so we allow the defendant to use self defense as a complete shield even if he made a serious  – even fatal – mistake, using deadly force when it wasn’t necessary or using too much.

When we add to this the requirement that the prosecutor must prove each and every element of the crime beyond any reasonable doubt, it seems clear that there will be many more situations like Zimmerman’s in which an unarmed person – all too often a teen and/or a minority – will be shot and sometimes killed when perhaps he should not have been, all because of the very broad sweep of the protection we afford under the doctrine of self defense, says law professor John Banzhaf, suggesting that there might not be any feasible alternative.

Even where the facts of the situation are reasonably clear, as they were in most of the situations above, jurors may still disagree as to whether the defendant’s belief that he had to use deadly force was reasonable, and/or whether the force he used was reasonable or excessive under the circumstances.

But since the test of “reasonableness” must be based not only on characteristics like the defendant’s sex and age, but also to some extent on his personal experiences, jurors are understandably reluctant to second guess someone who believed swift action was necessarily because his life was in danger.

For example, New York courts held that, in determining whether Goetz’s fear was reasonable, jurors had to consider “any prior experiences he had which could provide a reasonable basis for a belief.”

In Goetz’s case, he had previously been thrown through a plate-glass window by black youths in a day time robbery attempt. So a belief that he was in danger, which might not seem so reasonable to some ordinary jurors, might nevertheless be reasonable – and far more compelling – to people like Goetz who had been injured under somewhat similar circumstances previously.

Unlike most of the situations noted above, in the Zimmerman case there seemed to be general agreement that the prosecutors had not been able to even establish what had actually happened, especially to the high standard of “beyond a reasonable doubt.”  Since there was reasonable doubt as to what had happened, and under some possible versions of the facts Zimmerman’s actions might have been justified by self defense, it seems that a verdict of not guilty was the only one which could properly have been brought.

Can such shootings be prevented in the future?  It seems doubtful, suggests Banzhaf.  Mistakes, especially when people are suddenly placed in what might seem to them to be situations of great peril, are inevitable, and those who are apparently threatened will use deadly force if necessary no matter what the law provides.

As an old saying goes: “It’s better to be judged by 12 than to be carried by 6.”  So changing the law to provide that a defendant can use self defense only if he didn’t make a mistake probably would not reduce such incidents much if not all, but simply put more people into prison.

In any event, the mood of the country seems directly to the contrary.  Instead of narrowing the protection afforded by the doctrine of self defense, legislators are moving to enlarge it, enacting “Make My Day,” “Stand Your Ground,” “Castle Doctrine,” etc. laws.  Moreover, judges and juries seem, perhaps for the same reason, to be interpreting the doctrine more broadly so as to make convictions even more difficult to obtain.

It is not unusual for the law to apply doctrines, even when we know it will lead to wrongdoers not receiving punishment they might otherwise deserve.  The Miranda warning protects an important right, even though it means some wrongdoers will often escape punishment, perhaps even to go out and kill again.

Similarly, it can be argued that the principle of self defense, even applied when the defendant made a serious or even fatal mistake, likewise protects an important right, and we can and do apply it even though it means that some wrongdoers may sometimes escape punishment. Perhaps that’s the true lesson of Zimmerman, suggests Prof. Banzhaf.

John Banzhaf

John Banzhaf III

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418 @profbanzhaf