Tragedy Stirs debate on Stand Your Ground Laws and Racial Stereotypes


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


In February, 2012, we posted a piece about Texas’ version of the “stand your ground” law which was passed by the Legislature in 2007. Our piece examined a November 2011 decision by the Texas Court of Criminal Appeals, Morales v. State—the court’s first real opportunity to interpret the “stand your ground” self-defense which was inspired by the Florida “stand your ground” law and which has been the focus of bitter controversy surrounding the February 26, 2012 shooting death of Trayvon Martin by George Zimmerman.


For purposes of this discussion, we will only utilize some of the different accounts placed in the public record about what transpired that night. A grand jury will soon hear the case and determine if there is sufficient “probable cause” to indict Zimmerman for killing the 17-year-old Martin. ABC News and Reuters have assembled excellent timelines about the emotionally and politically charged case. We would only comment that pundits for Fox News and MSNBC have shamefully fueled the racial tension this case has unleashed across the country.


While no one really knows exactly what happened that February 26 night when Martin and Zimmerman confronted each other on a street in the gated community in which they both resided in Sanford, Florida, a number of indisputable core facts have emerged. Trayvon was living with his father, Tracy, at the time he was killed. The 17-year-old went to a convenience store where he purchased some Skittles and a bottle of tea. He was wearing a hooded sweatshirt, much like many other teenagers do in America. He was talking to his girlfriend on a cell phone as he walked home.


George Zimmerman was a member of a neighborhood “crime watch” group. These groups consist of volunteers who patrol the streets of their community looking for suspicious behavior, or real criminal activity. Some of the volunteers are individuals who want to be policemen. George Zimmerman was one of those individuals who wanted to be a cop. That February 26 night Zimmerman saw Trayvon walking down the street. He thought the teenager was acting suspiciously. He called and reported his concerns to a 911 operator—something he had done on other occasions. Zimmerman told the 911 operator he was going to follow Trayvon. He was instructed not to do that by the 911 operator.


Zimmerman did anyway, and a few minutes later, just 70 feet from Tracy Martin’s home, Trayvon and Zimmerman had their confrontation. It is not really known which one escalated that initial verbal confrontation into a physical one. Witnesses described hearing loud verbal exchanges, shouts, screams and a gunshot captured during a 911 call.


Texas Law


Under Texas’ “stand your ground” law, the prevailing party in such a confrontation has a legally recognized “self defense” claim if he can show the use of deadly force was a reasonable response to the confrontation. Texas’ “stand your ground” law provides that “deadly force” is justified if a person “reasonably believes the deadly force is immediately necessary … to protect himself against the other’s use or attempted use of unlawful deadly force.”


Before the 2007 “stand your ground” creation, an individual could not claim self defense in a confrontation if he/she had an opportunity to retreat, to disengage from the confrontation. The “duty to retreat” no longer exists in Texas—if a person has a right to be present at the location where the deadly force is used, and did not provoke the confrontation, he can plead that he “reasonably acted” in self defense and is accorded a legal “presumption” that he did so.


Both Trayvon Martin and George Zimmerman had a right to be at the location where the deadly force was used against Martin. The question, then, under the Texas statute, is who provoked the confrontation. Zimmerman was instructed not to follow Martin. He did so anyway. Did Trayvon reasonably believe he had to use deadly force to protect himself from Zimmerman by punching him in the nose (as alleged by Zimmerman)? Or did Zimmerman believe he had to use deadly force to protect himself from Martin’s alleged physical attack? In either case, Texas law bestows a presumption that the prevailing party acted in a reasonable manner.


Based on the information available in the public record, this violent confrontation could have easily been avoided. That Martin was walking down the street in a hooded sweatshirt did not create a reasonable inference he had committed or was about the commit a criminal act.  Zimmerman should not have pursued Martin once he was told not to do so. Both men were just 70 feet from where Martin lived when the confrontation occurred. Martin could, or should, have told Zimmerman “I live right there, man – just going home.” But if Zimmerman confronted Martin in a more aggressive manner, much like unprofessional police officers do a criminal suspect, the teenager would automatically take offense.


That’s why Zimmerman’s self defense claim could face difficulty in Texas. Granted, Zimmerman had a right to be at the location where he killed Martin—a city sidewalk—but he did not have either a civilian right or the law enforcement authority to confront the teenager in an unreasonably hostile manner. Even if Zimmerman believed that Martin had committed or was about to commit a criminal act, he was instructed by the 911 operator not to pursue the teenager and while this order is not mandatory, a jury will certainly consider it.


Zimmerman could have been perceived as a hostile threat, regardless of the motive—and at the time he initiated the confrontation, Martin had every right to be offended, cautious, or even intimidated by Zimmerman’s confrontation and respond. Even accepting Zimmerman’s version of the events as they were conveyed to the Sanford police (that Martin attacked him), Zimmerman could have became the aggressor when he chose to follow and aggressively confront Martin for no other reason than he thought the teenager looked suspicious. The real question, to which we have no independent witness, becomes how did Zimmerman approach Martin and how did Martin respond.

Assuming Zimmerman initiated the confrontation, it would be difficult for a jury to infer that he reasonably believed the use of deadly force was necessary to protect himself from Martin. In fact, it is likely Martin, not Zimmerman, had the greatest right to use deadly force to protect himself from Zimmerman who confronted the teenager in an aggressive manner. Accepting Zimmerman’s account that Martin attacked him, Martin had the legal right to resort to force—even deadly force—to ward off Zimmerman’s confrontation. The teenager would certainly have had a reasonable belief that Zimmerman posed a physical threat to him.


Beyond the “stand your ground” legal controversy, the Trayvon Martin case kindles an underlying debate about our perception of crime in America. Why should a young black man walking down the street wearing a “hoodie” arouse suspicion in anyone? He shouldn’t, but in reality he does. The very media and entertainment industries now capitalizing off Trayvon’s death created the “hoodie” thug image. Granted, a lot of “gang bangers” and “street thugs” do wear hoodies, but so does New England Patriots’ coach Bill Belichick who is frequently referred to by some sports commentators as “the Hoodie.” Would Geoge Zimmerman have called 911 about “suspicious” concerns had he saw Coach Belichick walking down the street at night wearing his hoodie?” We think not.


The tragic, inescapable reality is that crime in America is perceived to wear a black face. This has been the case since President Richard M. Nixon declared “war on crime” shortly after he took office. Armed with staggering LEAA funds funneled to local police department, Nixon encouraged law enforcement agencies, especially in the South, carry out the front line battles in this war by arresting hundreds of thousands of young black men. The nation’s prison system was not prepared to accommodate so many new and “angry” young inmates—many of whom had to get lean and mean in a hurry just to survive the prison experience. Riots steadily brewed in prisons across the country through the 1970s. Attica, the most infamous example.


And it produced an inevitable problem for society: these young black inmates became hardened criminals while in prison and they returned to the free community with a mentality ensuring that the Nixon “war on crime” had become a permanent fixture in American society. This war spawned the “white flight” from urban to suburban America to escape the black face crime. By the 1980s, our society had assumed the ugly trapping of racial polarization which manifested itself in President Ronald Reagan’s concerted effort to enact the Comprehensive Crime Control Act of 1984 which ensured a continued stream of inmates (predominantly black) into the nation’s prison system which, in turn, launched this country’s massive “prison industry.” Former President George W. Bush put a name to the black face of crime when he launched the “Willie Horton” ad against Massachusetts Gov. Michael Dukakis when he campaigned to succeed Reagan.


In response to Reagan’s escalation of the “war on crime”, neighborhoods across the country increasingly established what had become known as “Neighborhood Watch” programs. The purpose of these programs was educating volunteer citizens about how to identify and report suspicious activity in their neighborhoods. In 1981 when Reagan took office about 12 percent of the population was involved in “neighborhood” watch programs and that percentage increased to 20 percent during his first six years in office. Such programs had become so popular that approximately 40 percent of the people in neighborhoods with such “crime watch” programs participated in them.


Law enforcement agencies not only encourage but actively assist in creation of Neighborhood Watch programs. This law enforcement affinity for such programs probably explains why the Sanford police did not arrest Zimmerman following the shooting death of Martin. All the police need to arrest someone is probable cause. The killing of a human being under any circumstances normally constitutes probable cause to arrest. It is then left up to the prosecutors, courts and juries to determine what, if any, crime was committed.


Influenced by the “stand your ground” law, law enforcement would automatically feel that a Neighborhood Watch cop known to them acted reasonably when he gunned down a “suspicious” looking black teenager wearing a “hoodie.” This would be especially true in neighborhoods with single-family homes, few commercial establishments, and residents who have lived in that neighborhood for extended periods of time.


Ironically, in a 1988 book, Daniel P. Rosenbaum said the purpose of Neighborhood Watch is to bring the community together to “reestablish” control of their neighborhoods which has been lost by law enforcement. “… if social disorganization is the problem and if traditional agents of social control no longer are performing adequately, we need to find alternative ways to strengthen informal social control and restore a ‘sense of neighborhood.’” In other words, when the “cops ain’t or can’t do their jobs,” neighborhoods should enlist the support of the likes of George Zimmerman to do it for them. That’s exactly why and how the Ku Klux Klan was formed during Reconstruction and carried horrific crimes they called “vigilante justice.”


The National Sheriffs Association has endorsed the following five fundamental steps in creating an effective Neighborhood Watch program:


  1. First, strategies that address the problems in a given area must be mapped out. From the beginning stages of a Neighborhood Watch effort, it is essential to incorporate neighborhood involvement and identify ways to deal with the crime patterns in that area.
  2. The second step involves building a partnership between law enforcement officers and residents. This is not always an easy hurdle to overcome since citizens are often angry with law enforcement for not doing anything about the crime problem in their community. For a Neighborhood Watch program to be successful, it is essential that the officers understand the needs of a neighborhood and work as role models for neighborhood crime prevention efforts.
  3. The third step is to assess the needs of a given neighborhood. In many cases, law enforcement and community members do not have the same focus. For instance, law enforcement may be focusing their attention on a problem that the neighborhood is not concerned about, such as attempting to address major crimes throughout the city. On the other hand, community members may be more concerned about crimes such as bicycle thefts or graffiti, which are considered minor from a police standpoint. Effective Neighborhood Watch programs unite law enforcement and residents and encourage them to collectively determine what problems should b addressed and how.
  4. Next, selecting and training an active body of volunteers that are led by organized and motivated leaders is critical. Without motivation and organization, volunteers may be uninspired to participate and quit out of frustration.
  5. The fifth and final step is to develop meaningful projects. Often, after a Neighborhood Watch has addressed its original issue, members lose interest. It is important for leaders to remain enthusiastic. One way to accomplish this is to create and embark upon new projects so that there is always a goal towards which the team is aspiring. Projects may include building a neighborhood playground or painting over graffiti, for instance.

This intimate relationship between law enforcement and Neighborhood Watch is, as we said, probably why the Sanford police did not arrest Zimmerman. An arrest by the police would have betrayed the trust and alliance they had with the crime watch group to which Zimmerman belonged. It would have felt akin to arresting one of their own in a similar situation.  After all there have been many police shootings of unarmed people, done in equally mistaken belief of danger couple with prejudice inspired fear.


Let us be clear: we do not oppose the existence of Neighborhood Watch programs, but we do find the intimate relationship between law enforcement and civilian crime fighters to be troubling in many respects, primarily that law enforcement bestows upon these groups a sense of legal authority they do not have, like killing people. But unquestionably the most troubling reality to us about the tragic shooting death of young Trayvon Martin is this: Zimmerman was really shooting Willie Horton wearing a “hoodie.”


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Houston Criminal Attorney John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization