Why Trayvon Martin’s Killer Remains Free

Florida’s self-defense laws have left Florida safe for no one—except those who shoot first.

Trayvon Martin
Trayvon Martin was shot and killed in a gated community in Sanford, Fla., by George Zimmerman. Zimmerman has not been charged.

family handout

Read Slate’s complete coverage of the Trayvon Martin case.

The story of Trayvon Martin’s death is heartbreaking. If you have missed the facts: The 17-year-old, who is black, was walking to a friend’s home in a gated community in Sanford, Fla., when a neighborhood-watch volunteer*, 28-year-old George Zimmerman, spotted him. Zimmerman, whose father says identifies as Hispanic, called the cops to report a suspicious person. They told him not to follow. “They always get away,” Zimmerman told dispatch in a 911 call released Friday, and he kept tracking Martin. Zimmerman had a gun. Martin was carrying only an ice tea and the Skittles he’d just bought at the store. The two had a struggle that no one saw. Hearing shots, neighbors called 911. In one call that’s hard to listen to, a woman anxiously says she can hear someone calling for help while in the background, a terrified, wailing voice pleads, “No! No!”

Zimmerman shot and killed Martin, but he said he did so in self-defense. The shocker of this case so far is that the Sanford police say they don’t have enough evidence to dispute Zimmerman’s claim and arrest him. Martin’s mother told the Today show Monday morning that her son was killed “because of the color of his skin,” and his parents want the FBI to investigate. With these facts, you can see why. UPDATE, March 20, 2012: On Monday evening, the Justice Department announced it will investigate Martin’s killing.

How did we get to a place where Zimmerman’s claim of self-defense, which seems barely plausible, could prevent his arrest? The answer starts with the “Stand Your Ground” law that Florida passed in 2005. The idea was to give people who think they are being threatened the right to use force: They can protect themselves without first trying to retreat. The history behind that controversial idea is actually about gender, not race. It involves the intersection between the fight against domestic violence and the agenda of the National Rifle Association.

Let’s back up, with the help of Jeannie Suk, a Harvard law professor who wrote an article in 2008 that I’ll rely on for the next few paragraphs. In the 17th century, English common law held that people whose lives were threatened in a public place could use deadly force to defend themselves only after retreating as far as possible. It was up to the king and his men to keep the peace, and everyone else was supposed to stand aside. There was only one exception: If someone broke into your house, you could kill him without retreating.

This is called the Castle Doctrine, after the old saying that a man’s house is his castle. It makes intuitive sense—a limited exception to the duty to retreat that leaves the rule in place. But when the Castle Doctrine made its way to America, Suk says, some courts expanded it. Now someone under attack could “repel force by force” if he was attacked “in a place where he has a right to be.” That’s how the Supreme Court put it in 1895. This is amazingly called the “true man” doctrine, from a line in an 1876 case: “A true man, who is without fault, is not obliged to fly from an assailant, who by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.”

Not all the states adopted the true man doctrine. And 100 years later, courts and legislatures faced a new problem: What to do with women who said they were victims of domestic violence and had killed their husbands to save themselves? Did you have a right not to retreat if the person coming after you lived under the same roof? At first, the answer was no, to the fury of feminists. Then in 1999, the Florida Supreme Court said a woman who shot and killed her husband during a violent fight at home could successfully call on the Castle Doctrine to argue self-defense. “It is now widely recognized that domestic violence attacks are often repeated over time, and escape from the home is rarely possible without the threat of great personal violence or death,” the court wrote.

Suk calls this revision of the true-man rule to encompass domestic violence transformative, and you can see why. The new rules made for more shooting and less retreating. And they set the stage for Florida to ditch the duty to retreat entirely, which the legislature did in passing the nation’s first Stand Your Ground law in 2005.

Florida’s new law did three things: It further loosened the restrictions on using deadly force at home. It scrapped the duty to retreat in public places. And it gave people who use self-defense civil and criminal immunity. Pushing for these changes, NRA President Marion Hammer focused on women and their need to protect themselves. “You can’t expect a victim to wait and ask, ‘Excuse me, Mr. Criminal, are you going to rape me and kill me, or are you just going to beat me up and steal my television?” she said.

Prosecutors opposed the Stand Your Ground law, and they still complain about it. “It is an abomination,” former Broward County Prosecutor David Frankel told the Sun Sentinel in January. “The ultimate intent might be good, but in practice, people take the opportunity to shoot first and say later they had a justification. It almost gives them a free pass to shoot.” The quote comes from a story about a former sheriff’s deputy, Maury Hernandez, who killed an unarmed homeless man in a Haagen-Dazs shop on a Saturday afternoon. Hernandez, who was with his children, said the man aggressively asked for money and then tried to assault him. Witnesses said Hernandez warned the man several times before taking out his gun and firing multiple times. The police said they wouldn’t charge Hernandez for the shooting because he claimed he was under attack.

It’s that decision not to press charges that makes Stand Your Ground laws, which a bunch of other states have adopted, a crazy departure from the past. It’s one thing to raise self-defense at trial. It’s another to have what the Florida Supreme Court calls “true immunity.” True immunity, the court said, means a trial judge can dismiss a prosecution, based on a Stand Your Ground assertion, before trial begins.

At least there’s supposed to be a hearing before that happens, at which the defendant has the burden of proof. And yet as the Hernandez and Martin’s case shows, Stand Your Ground laws often lead prosecutors to decide against so much as bringing charges. According to the Sun Sentinel, “In case after case during the past six years, Floridians who shot and killed unarmed opponents have not been prosecuted.”

Now the death of Trayvon Martin is the latest in that line. Maybe this is the kind of case that is so sad and so tinged with racism that Florida will think hard about the very scary place where their self-defense laws have taken them. Maybe.

Read Slate’s complete coverage of the Trayvon Martin case.

*Correction, March 20, 2012: This article originally stated that George Zimmerman is white, but his father says he identifies as Hispanic.