Tuesday, July 16, 2013

On Aggression...

Aggression is not a binary concept, neither as a matter of practice, nor as a matter of law in most jurisdictions. Unfortunately, many people who support George Zimmerman seem to be of the mindset that aggression is a particular magic line that is crossed, and he who crosses it is The Aggressor, and therefore all other parties by definition are not. It often doesn’t work this way in the real world, however, and when it does there is not much to discuss. In practice, however, many fights arise from a series of tit-for-tat escalations, without a clear beginning, or a beginning that stretches back far before the incident in question.

Human psychology is ill-equipped for these tit-for-tat scenarios. Numerous studies have shown that we tend to underestimate how much pain and fear we are inflicting relative to what we receive, and this is even more so if our opponent is of another race. Hence, while we think we are just pushing back no harder than the shot we just took, in fact we are escalating. Our opponent then completes the cycle, and the pattern repeats until things spiral out of control.

In the magic line theory of aggression, it is not clear who is The Aggressor in the case. The magic line, such as it exists, would exist somewhere in the few minutes where we have no data other than Zimmerman’s self-serving story. Hence, Zimmerman’s supports claim of his innocence – clearly, if we don’t know who crossed the magic line, we can’t prove Zimmerman’s guilt beyond a reasonable doubt!

The problem with this logic is that outside of that small period of no data, Zimmerman unilaterally escalated the conflict at every point, including the conflict’s initiation and its final, ultimate escalation.

Zimmerman escalated the conflict at no less than six points:

1: By carrying a gun. Any conflict you find yourself in while carrying is automatically escalated to an entirely different level of danger for anyone involved or merely nearby

2: By tailing Martin in his vehicle.  

3: By cursing into his phone to the 911 operator. Reading the transcript, it is clear that Martin saw Zimmerman doing this and could sense Zimmerman’s hostility, which is patently clear in the transcript and would have been more so in real life. This is probably why Martin fled.

4: By exiting his vehicle and pursuing Martin

5: By confronting Martin in a hostile manner, using phrases like “What are you doing around here?” rather than something polite and calming like “Excuse me, I’m George from the Neighborhood Watch…”

6: By countering a punch to the nose with a bullet to the heart

Martin, in contrast, may have (and in my opinion, probably, legally, and morally justifiably) escalated the conflict once, between Zimmerman’s fourth and fifth escalation, while clearly trying to de-escalate it at least twice, by first walking and then running away. Any logic that finds Martin to be The Aggressor just because some magic line lies between #4 and #5, and ignores everything before and after, is a deeply flawed logic. Fortunately, despite its many short-comings, Florida law does not follow the The Aggressor logic – aggression is based on “provocation”, and is not exclusive:  multiple parties on both sides of the conflict can be An Aggressor in the same conflict, both in real life and under Florida law.

Under Florida law, it is hard to not find Zimmerman to have been an aggressor in this conflict, having engaged in no less than five aggressive, provocative behaviors before Martin engaged in his first, and during which time Martin repeatedly tried to de-escalate the situation. As for Martin being an aggressor, it depends on some specific facts that are only known to Zimmerman, and one’s interpretation of Florida’s self-defense provisions. Specifically, Martin would have been justified in the use of force if he

 reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force”.

Is the combination of #2 through #5 a “reasonable” reason to fear the imminent use of unlawful force? I believe so. Should we judge this standard of “reasonable” from the perspective of a minor alone with a “perv” on a dark, rainy night, rather than an adult? I believe so. Children, having a lower capacity for reason and less control of their emotions, should be expected to consider a wider range of behaviors reasonable than adults sitting safely at their computer might.

Given the facts we know, Martin probably was not An Aggressor, either morally or legally. Zimmerman, in contrast, was An Aggressor both under the law and under the eyes of God. Given the long deliberation and the clarifications they ask for, I believe the jury agreed with me on that point. Zimmerman got off not because he wasn’t An Aggressor, but because of the deeply flawed Florida statue 776.041 “Use of force by aggressor”, which is written in such a way that Aggressors can too easily escape punishment. It is this law, not Florida’s famed Stand Your Ground provision, that allowed a major injustice to occur in this case. I will address my specific concerns with 776.041, which is similar to other such provisions in other states, in a later post.