Due process tight rope claims victim


The verdict in the George Zimmerman murder trial has already attracted the full force of editorialists, activists and pundits. To be sure, the outcome is baffling. It appears to violate a very simple rule: you can’t pick a fight and then kill your opponent just because they begin to win the fight.

The trouble is Zimmerman acted under a quasi-color-of-law assumption when he approached Treyvon Martin. Buttressed by his station in the area’s Neighborhood Watch, Zimmerman did what no private citizen should do: he confronted someone he thought was dangerous. Perhaps more precisely, he approached someone he thought “didn’t belong” in that neighborhood.

In so doing, Zimmerman waded into a terrible legal gray area that dogs even professionally trained police officers. Sometimes things happen that area residents may not like. There is, however, a deep chasm between what people want and what is legally permissible.

The famous criminologist, Carl Klockars, says it best when he observes that the patrol function of the police is tasked to address, “Things that ought not be happening, about which something ought to be done.”

Nowhere in that statement have we assailed a matter of law, just stuff that somebody doesn’t like. Even so, the police get called to “a disturbance,” “disorderly conduct,” “suspicious persons” or any of a dozen different catch-all offenses that are by design vague and very pliable. The flexibility of these public order statutes is precisely what make them such a valuable tools for the community to regulate itself; and paradoxically, the flexibility also makes them easy tools for bigots, provincialism and puritanical business-minding. They are, in short, easy to use, easy to abuse.

The right-minded cop knows this. They also recognize some of the associated perils, one of which may be termed “goal confusion.” Whose interests are to be given priority at that particular moment?

Which one best serves the interests of all concerned and how does a cop know the difference? Even if best interests are served by the officer’s decision, is the remedy an acceptable one even if it leaves a majority of people dissatisfied?

Policing is at its essence, a tightrope walk between law, order and freedom. People must generally be allowed to do what they will — police must only intervene if the actions of an individual pose some kind of demonstrable harm to him/herself or others. Police must predicate their actions with reference to specific laws, not merely the whim of the discontented.

This where the Constitutional due process protections come into play. They are there to ensure government actors and processes are as fair and even as possible. Here too, is a peril for police officers.

Another criminal justice luminary, Hubert Packer, once observed, “The due process system makes a habit of questioning the competence and intelligence and even the honesty of police officers as a regular part of how it operates.”

Even though Zimmerman was hardly faint shadow a police officer, he was attempting to cloak himself in those robes. He failed. He failed and it cost someone their life. Unfortunately for Zimmerman, in his zeal to be cop-like he not only inherited the “authority” but also the liability. He fell squarely off that tight rope of law, order and freedom — perhaps in part because he was attempting something he should not have. Unfortunately for the rest of society, the jury didn’t see it that way.