When you read about the Florida shooting, the biggest complaint I keep hearing is that “they didn’t even arrest the shooter.” I would like to know how they get that idea.
The first question is, what is an arrest? According to all the training I have been given, there are three “levels” of police interaction
1. Casual conversation
Level 1 is easy to understand. Anyone can have a conversation with anyone else. If the person is entirely free to leave, then the police cannot be said to have detained or arrested them. Arrest is also easy to understand. When you are arrested, you are under the complete control of the police. You are not free to go. It’s level 2, detention, that’s complicated. There are a few things that make a stop by police a detention under Terry v. Ohio rather than an arrest. First, it’s a brief stop based upon Reasonably Articulable Suspicion. Second, it must occur in close proximity to where the suspect was found.
Under United States v. Mayen-Munoz, when you handcuff a compliant suspect and remove him from the scene down to the station, even for a brief time of 5 minutes, that constitutes an arrest. Handcuffs are not an absolute signal of arrest, they can be used for officer safety, but when there is no reason to suspect that the suspect is armed and dangerous, handcuffs signal arrest.
Let’s look at what we know about the capture of George Zimmerman.
I’ve cut out a paragraph that isn’t relevant to this discussion, but you can read the whole report here. (PDF)
So what we know is that George Zimmerman was handcuffed and his weapon was taken from him. He was placed in the back of the police car, given first aid, and transported to the interview room of the Sanford Police Department.
How can anyone spin this as not arrested? He was handcuffed. He was transported away from the scene. He was placed in an interview room, and we know from other sources that he was
This hits all the elements for a court to decide, if anyone bothered to ask them, that George Zimmerman was arrested. Now the police might want to call it an investigative detention, or some other polite locution, but the fact remains that George Zimmerman was not free to refuse any of this. He was certainly permitted to exercise his right to remain silent, and was almost likely mirandized. I think that it is very unlikely that they looked at Zimmerman and said “George, if it’s all right with you, we’d like to have a chat with you. You totally don’t have to go with us, it’s your free choice. You just say the word and we’ll be more than happy to take you home without asking you any questions at all.” What makes it even more unlikely is the fact that neither officer’s report says anything at all about it being voluntary. Cops are careful to put things like that in their report. It helps them at trial when the defendant tries to claim he was searched without a warrant when the cops want to call it a consent search.
It seems to me that what really happened is that they arrested him because they had probable cause to do so. He was standing next to a body, with a gun. He admitted to the arresting officer that he, in the words of the police report, “shot the subject.” Note how the words of the second officer’s statement above are “At no time did I question Zimmerman about the incident that had taken place.” This is ass covering. What that does is preserve probable cause for the arrest. If he is told directly by the suspect that it was self defense, and then he questions that suspect, he runs the risk of developing enough information supporting a self defense claim, which triggers the Florida law saying they have to let him go. Plus it’s good procedure not to mess up the Detective’s interview by accidentally feeding the suspect facts. I’ll bet that if you ask, you’ll find that they discourage the patrol cops from playing detective.
It’s what happened in the interview room that changed everything. Zimmerman is reported to have told them that Martin attacked him, climbed on top of him, and pounded Zimmerman’s head into the sidewalk. That coupled with the witness reports, and the physical evidence triggered the Florida self defense law, and the prosecutor told them that they had no probable cause to charge Zimmerman and needed to let him go. But that doesn’t change the fact that by handcuffing and transporting Zimmerman, they arrested him.
The next question is, why does anyone care whether or not Zimmerman was arrested? The prosecutor decided that there was no probable cause to charge him, so they had to release him. Anyone who thinks that a person should be charged with a crime without Probable Cause is advocating for arbitrary arrest and detention. The attitude of “arrest him, charge him, and let a jury decide” is entirely at odds with our system of jurisprudence. As I read the Florida law, the next step is the Grand Jury. If they decide to indict Zimmerman, he is entitled to an evidentiary hearing under Dennis v. State, where a judge will decide, on the preponderance of the evidence, whether or not statutory immunity applies. Unless the State can show by the preponderance of the evidence that Zimmerman’s actions were not self-defense, the charges get dismissed. If that fails, he gets a jury trial where he can raise the claim of self-defense.
I think it is possible that Zimmerman will get indicted. They always say that a good prosecutor can get a Grand Jury to indict a ham sandwich, but unless they have some bombshell evidence, they won’t get past the evidentiary hearing. And if they had bombshell evidence, they would arrest him before the Grand Jury happened.
Update: Here’s more evidence of it being an arrest.
Police brought Zimmerman into the station for questioning for a few hours on the night of the shooting, said Zimmerman’s attorney, despite his request for medical attention first.
They denied his request for medical attention in order to get him into the interview room for “a few hours.” This says that the “detention” was lengthy, and absolutely against his will.
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