I know that he was shot by George Zimmerman while wearing a hoodie and carrying a box of Skittles. No weapons of mass destruction. An awful tragedy. My thoughts and prayers go out to his parents and family. A thorough and fair investigation is obviously a necessity.
But after decades of studying the criminal justice system, how it works and how it doesn’t, including the shadow cast by racism over that system, that is what I know.
I also know this: If the police and prosecutors had a clear case that Zimmerman had unreasonably resorted to deadly force in a situation where the law prohibits it, if they had probable cause to arrest him and believe they could and should secure a conviction, they would have arrested him.
With the eyes of the nation upon them, with the president comparing Martin to the son he doesn’t have, with marchers and editorials, the easiest thing, the most political thing, the move that would turn down the temperature would be to arrest Zimmerman.
I know that is not always what has happened. Too often in our history, police and prosecutors have been reluctant to arrest African-American men for killing white men in situations where they would have done so had the races been different.
I know that police and prosecutors and juries have been too willing to assume that any African-American man in a hoodie is likely to be a criminal and that crimes involving the death of an African-American have not received the same attention as those involving the death of a white person.
I also know that in highly politicized cases, just the opposite has happened.
The most notorious example of this, obviously, was the Duke lacrosse team case, where the prosecutor moved too fast, where his motives were political, where a thorough investigation would have spared not only the young men involved but also, ironically, the young woman, whose reputation was also ruined in the process.
And Martin’s also almost certainly would be were an unjustified arrest made here.
We are a nation of laws, not men and women. From everything I can see, police and prosecutors in Sanford, Fla., are proceeding carefully and thoroughly — as they must, given the issues involved.
The law allows an individual to resort to deadly force when he reasonably believes he is facing death or serious bodily injury. In many states, an individual is required to retreat (at least when attacked outside his own home) when he could do so safely. Florida is not one of those states. I do not support “Stand Your Ground“ laws because they allow lives to be taken in self-defense where it is not in fact a necessity. But I don’t make the law in Florida, and neither do those charged with its enforcement.
The law does not require that the individual who resorts to deadly force be right. His actions must be judged at the time he takes them. The standard is objective: what a reasonable person would do. But in applying that standard, the reasonable person stands in the shoes of the one who resorted to deadly force.
Obviously, race should not be a factor in this analysis.
Obviously, wearing a hoodie should not be a factor in this analysis.
But if there is credible and substantiated evidence that Zimmerman reasonably believed he was facing death or serious bodily injury at the time he shot, then the police and prosecutors would be violating their ethical duties and the rule of law in arresting him to respond to a political crisis.
I understand the president’s identification with Trayvon Martin. I understand his concerns that deaths such as this have, historically, been too easily ignored on racial grounds. But it is essential that our leaders have the courage to say that, ultimately, the issue here should not be race. The issue is the rule of law, applied without regard to race.
Susan Estrich is a law professor in Southern California and managed the 1988 presidential race of Democrat Michael Dukakis.