Thursday, April 12, 2012

Zimmerman, Probable Cause, and F.S. 776.032(2)

Yesterday George Zimmerman was charged and arrested by Florida law enforcement on suspicion of second degree murder of Trayvon Martin.  The facts of the case, publicly known as of this date, are widely published on the Internet and the reader can seek these elsewhere.  For purposes here, it is enough to say that Zimmerman shot and killed Martin, and upon questioning by law enforcement, asserted that he acted in lawful self defense.  Here we address the legality of his arrest under section 776.032(2), Florida Statutes.  That statute states:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Originally, several days after the shooting, local authorities announced that there was no probable cause to arrest Zimmerman.  Roughly 45 days later, an arrest was made, suggesting that either new evidence was discovered, or a re-examination of evidence suggested probable cause existed that Zimmerman's use of force was unlawful.

So what exactly is "probable cause?"  It seems that much of the public feels that probable cause for an unlawful use of force is present any time deadly force is used against an unarmed person.  In the Zimmerman/Martin case, advocates of this position are quick to quip that Martin was "armed" only with candy and soda.  These folks seem to think that although it is not impossible that an unarmed person can reasonably cause another person to fear for great bodily harm, such an event is facially improbable.  Are they right?

There is other publicly known evidence in the case, such as:

1. the statements made by Zimmerman, who is, as far as I have read, the only eye-witness to the shooting.
2. photographs and witness testimony as to Zimmerman's appearance and demeanor immediately following the incident.
3. witnesses who heard events unfold, including neighbors and Martin's girlfriend by telephone.

So putting it all together, how does one determine whether there is "probable cause" under 776.032(2)?

It seems most courts today rely on a standard similar to that in a Supreme Court ruling, Maryland v. Pringle, 540 U.S. 366, 370-71 (2003), which stated:
The long-prevailing standard of probable cause protects “citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime,” while giving “fair leeway for enforcing the law in the community's protection.” On many occasions, we have reiterated that the probable-cause standard is a “ ‘practical, nontechnical conception’ ” that deals with “ ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ”  “[P]robable cause is a fluid  concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.”  The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.  We have stated, however, that “[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,” (internal quotation marks and citations omitted), and that the belief of guilt must be particularized with respect to the person to be searched or seized, . In Illinois v. Gates, we noted:“As early as Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (1813), Chief Justice Marshall observed, in a closely related context: ‘[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation .... It imports a seizure made under circumstances which warrant suspicion.’ More recently, we said that ‘the quanta ... of proof’ appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant.  Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision.”  To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause.
In short, "probable cause" is a "fluid" concept, but boils down to a "reasonable ground for belief of guilt," and "guilt" means something far less than guilt beyond a reasonable doubt.

From the known facts at this time, there are certainly, in my opinion, reasonable doubts regarding Zimmerman's guilt.  He claims he acted in self-defense after, without provocation, Martin punched him in the face, knocked him to the ground and began slamming Zimmerman's head into pavement.  The police report regarding Zimmerman's wounds and witness reports of his cries for help seem to collaborate the story.  It may not be the truth, but there is enough evidence, in my mind, to create doubt that Zimmerman's defense was not lawful and was instead a murder.

But, would it be unreasonable to think Zimmerman might not have been acting in lawful self defense?  His victim was unarmed, and although Martin was an athletic football player, there was not a great size disparity between him and Zimmerman.  There also seems to be some dispute among witnesses as to whose voice was crying for help during the altercation, Zimmerman or Martin.  There is also some circumstantial evidence that Zimmerman may have provoked a confrontation.  All these facts may not be enough to convict Zimmerman (i.e. guilt beyond reasonable doubt), but do they create a "reasonable ground for belief of guilt"?  Put another way, is it unreasonable to believe Zimmerman might have acted unlawfully?

Unfortunately, it could be a long time before we know all of the facts and circumstances that were presented to whoever made the probable cause determination.  I suspect, like many, that proof beyond a reasonable doubt has yet to be established, but Zimmerman's arrest will likely be held valid (if challenged) on grounds that probable cause was present.



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