Tuesday, July 23, 2013

Obama on being Trayvon and on "stand your ground" laws


"Trayvon Martin could have been me, thirty-five years ago."

Somehow I don't think so. Obama is a child of privilege, Martin was not. There is more difference between the two people than Obama credits in his remarks. Indeed, the difference is greater than any skin-deep similarity. Let's see... Obama was schooled at Punahou, Occidental and Harvard and somehow became a political insider rather quickly... The above picture is being circulated on Twitter as a photo of Obama being profiled 35 years ago.

The tragedy of Trayvon Martin's death is overshadowed and cheapened by using it for political grandstanding. Obama's full remarks: http://www.whitehouse.gov/the-press-office/2013/07/19/remarks-president-trayvon-martin

The President said some high-toned and thoughtful things, brought out some well worn and reliable platitudes about race, and even said some things that I agree with. But he slipped a poison pill in amidst the Skittles:

I know that there's been commentary about the fact that the "stand your ground" laws in Florida were not used as a defense in the case. On the other hand, if we're sending a message as a society in our communities that someone who is armed potentially has the right to use those firearms even if there's a way for them to exit from a situation, is that really going to be contributing to the kind of peace and security and order that we'd like to see?

And for those who resist that idea that we should think about something like these "stand your ground" laws, I'd just ask people to consider, if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman who had followed him in a car because he felt threatened? And if the answer to that question is at least ambiguous, then it seems to me that we might want to examine those kinds of laws.

There are many things  wrong with that. The President, a lawyer, knows it and said it anyway. No one, of any color, is justified in shooting only because he feels threatened. That answer is unambiguous. The test is whether one reasonably fears imminent death or severe bodily harm, the old "reasonable man" doctrine that any schoolboy knows about, let alone any lawyer.

Left dangling is a question of whether the law would be applied equally to a black. (Obama set up that dangler previously in the talk, explaining a series of factors that "...contributes I think to a sense that if a white male teen was involved in the same kind of scenario, that, from top to bottom, both the outcome and the aftermath might have been different.") But wait, the whole problem the left is having with this case is that the trial went by the book. Anyone knocked down in the street with his assailant astride gets the benefit of the same book. The law is the law, even when there is a loud public clamor for a conviction, and backroom pressure from inside the state government, as there were in this case. Would race prejudice be a more powerful biasing factor, in present-day Florida, than those things were? It seems at least as reasonable to suppose that if Trayvon Martin had been white and the same thing had happened, no one outside of Sanford, Florida would have heard about his death.

Then there is the hypothetical, "if Trayvon Martin was of age and armed." If at that time he had a clean record and no other disqualifications, then yes, he would have the same rights as any other man to arm himself and defend himself. This is the 21st century, Florida is ethnically diverse and seeks justice equally for all--or more than equally if it is "justice for Trayvon." In that matter, it seemed that the state made extraordinary efforts to bring Martin's killer to trial, efforts without which the case would have been dropped; it is common practice to drop cases where the state, in all likelihood, cannot win. In terms of the realities of this case, Obama is not dealing squarely with the facts. He is drawing us a cartoon.

"Stand your ground," of course, concerns the "duty to retreat." It is extraneous to this case. When someone is flat on the pavement with someone atop him, he has nowhere to retreat. Problems with the "duty to retreat" are the point of "stand your ground" laws. There are many difficulties in fairly applying laws asserting that the citizen has a duty to retreat when attacked, difficulties for which "stand your ground" serves as a simplification. When has the attacked person retreated enough? If he did not retreat, was it because he could not safely do so, and how can we be sure? Was there time to retreat, or was the attack so sudden that defending one's self was a matter of "do or die?" Was it possible to retreat, or was the victim's back against a wall, literally or figuratively? Did the victim of the attack even have his wits about him well enough to think out his chances of retreat? As Justice Oliver Wendell Holmes remarked in a case of the kind, "detached reflection cannot be demanded in the presence of an uplifted knife."

In view of these complexities and the many opportunities to misjudge such matters after the fact, most states as well as federal precedent have some or other recognition of the "stand your ground" principle. Most people will retreat without being told they have to, and in cases where that does not happen, the exact circumstances are hard for judge and jury to sort out; it is best if they do not attempt it, but look into the other circumstances of the case. Obama caricatures what "stand your ground" says and does. He must know what he is leaving out here, or was he asleep in that class?

Embedded in his otherwise irenic remarks is a partisan push for one of the items on the Brady Campaign wish list, revisiting the self defense laws with a view to weakening them. He is playing politics, of course. When does he do anything else? He is nothing like Trayvon, the law is not as he presents it, he hands us a hypothetical situation and a leading, insinuating question about ambiguity that turns out not to be ambiguous at all...smoke and mirrors, all of it!

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