In Florida the trial is well under way now of Gerorge Zimmerman, who is charged with second degree murder for shooting dead a 17-year old named Trayvon Martin.

You may recall the case. Martin was visiting family in the town of Sanford. He had gone to he store at night to buy a soft drink and sone Skittles and was on his way back when unexpectedly he found himself being followed by a man who was armed — not clear if Martin knew this — and who at no time identified himself to Martin other than to ask “what are you doing here ?” And that only after Martin had asked, “why are you following me ?” Martin, thinking that this unidentified man meant him harm, defended himself. Zimmerman, thinking that Martin was up to no good, kept pressing. A fight ensued, ended only when Zimmerman, having gotten much the worse of the fight and being afraid for his life — his testimony — he took out his gun and shot Martin dead.

It transpired that Zimmerman was a volunteer for the gated community’s security watch patrol. It also was learned that Zimmerman had noted Martin walking across the gated grounds and called the Sanford police, telling them he intended to follow the Martin. The police advised him not to do so; but he did it anyway.

These are all the relevant facts in the case.

A huge outcry went up when the American public learned that the Sanford police decided not to arrest Zimmerman, who claimed that he shot Martin in self-defense; as a result of that outcry, the police did arrest him, and the state of Florida set in motion the prosecution that has now reached trial.

The outcry and its consequences — lots of public accusation and recrimination — has led to a focus on the fight that took place and not on the events that led up to it. This is a mistake and quickly distracts the mind from a proper consideration of criminal culpability on the part of Zimmerman. As it happens, Zimmerman is unmistakably culpable. Let us see why :

1. He is armed with a loaded gun. A loaded gun is something that the law terms a “dangerous instrumentality.” Our tort law imposes a strict liability upon those who use dangerous instrumentalities, be these explosives, lethal chemicals, waters in a private reservoir, or loaded weapons. And for very good public policy reasons. Our criminal law similarly imposes a like duty upon those who use dangerous instrumentalities; except that criminal liability for their use is not strict; it only arises if the dangerous instrumentality is misused recklessly or, obviously, intentionally). For example, if I drive my car at 60 mph in a 30 mph zone and doing so kill a pedestrian, I am guilty of reckless conduct resulting in a death and am criminally responsible.

2.¬† He disregards police advice and initiates a train of events that leads to a fight and a killing. Being armed, and following young Martin, in the mistaken belief that Martin is up to no good, persists in following without identifying himself. He allows — induces — Martin reasonably to conclude that he, Zimmerman, means him harm. What actually followed was almost forseeable, just as forseeable as that if I drive 60 in a 30 zone, in disregard of posted speed limit signs, an injury and even death will occur.

3.¬† His belief that Martin is up to no good is entirely mistaken. The likelihood of mistake — while being armed — is why he owed Martin a legal duty to identify himself. He has no idea who Martin is other than that Martin is walking across the gated community’s grounds.He has no evidence at all to the contrary. If he was going to follow Martin — despite being advised not to — while being armed, he owed Martin a duty to identify himself. Had he done so, none of what ensued would likely have happened.

Zimmerman’s defense is that he shot Martin in self-defense while being beaten pretty badly. However, the self-defense assertion¬† cannot stand. You cannot initiate a train of criminally reckless train of events and then, when events go against you, claim the rightful man’s defense.

There really is nothing further to this case. The death that took place was the direct result of a train of events set in motion entirely by Zimmerman. His conduct from the beginning was reckless — the mistaken assumption, the disregard of police advice, the failure to identify himself — and, as he was armed, his recklessness was criminal. The only difficulty is in deciding whether Zimmerman is guilty of second degree murder, as the State of Florida charges, or of manslaughter.

As manslaughter is a death caused by criminally reckless conduct, without regard to who is killed, the facts here readily meet that standard.

Second degree murder, however, requires an animus specifically against the person killed. As Zimmerman did not know Martin, the only way to reach the second degree murder standard is to prove that Martin had a generalized animus against people unidentified walking at night across the gated grounds. His original statements to police after the killing make clear that he plenty of such animus. But are these pre-arrest statements admissible evidence ? Probably not. The state is going to have to prove animus from the bare facts of the events of the case. As Zimmerman is unlikely to testify, it will be difficult, we think, to establish the extent of his animus.

Manslaughter it likely is.

—- Michael Freedberg / Here and Sphere