Why does everyone think Zimmerman wasn’t arrested?

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
2.       Detention
3.       Arrest

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 interrogated interviewed.

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.
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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14 Responses to Why does everyone think Zimmerman wasn’t arrested?

  1. When most people think “arrest,” they believe it means “pressing charges against someone.” I think that’s the problem right there. Everyone who is bitching about Zimmerman not being arrested is basically admitting they feel he should be in jail, on charges, with a pending court date.

    And that’s fine, they’re free to believe that, but as you pointed out, that’s not what an arrest is.

  2. i appreciate your attempt at clarity. but the real problem we have here is that the police department was incompetent. people are saying zimmerman was not arrested because that is what the sanford pd has said. i’d also like to point out that you make a lot of reasonable assumptions about what the police did, but it’s becoming pretty clear that they did a lot of weird things that night. they never impounded his car. they never gave him a drug or alcohol test. i would also like to point out two odd things… your quote from z’s attorney says he asked for medical attention before being brought in, and that isn’t in the report. also, martin was listed as a john doe when he was brought into the morgue, yet his name is there on the report.

  3. I think that the PD may have said he was not arrested so that they didn’t run afoul of the Florida self defense law that says that they can’t arrest. Plus, it’s a typical tactic of cops to say later that the person was not under arrest so that they don’t lose a confession because it was “coerced” and they didn’t read him his rights.

    Why would they have impounded his car? What probable cause did they have to seize or search his car? He wasn’t in his car during the incident, nor did he go back to his car after the shooting. It’s not part of the crime scene.

    Why would they give him a drug or alcohol test? They didn’t have probable cause to suspect that he was under the influence, and besides, according to Florida law (790.151) the law against being drunk and carrying does not apply to people who exercise lawful self defense. In short, it doesn’t legally matter if he was as drunk as a lord, if it was legal self defense, he wasn’t breaking any law.

    The report is pre-interview. The lawyer was saying that he asked for medical attention while he was IN the interview, and was denied and kept there.

    When was the report completed? It can’t have been written before 03:07 (am) on Monday morning. That’s the time listed as “Completed,” which means that’s the time he reported having left the scene, not the time he finished the report. If the cop didn’t leave the scene before then, he couldn’t write the report until then, and typically reports are not completed until days later. The shooting happened about 7:15 pm on the 26th, and the father reported him missing the next day. You will have to ask someone else what time he was actually identified, but likely it wasn’t until much later than his body arrived at the morgue. We all need to recognize that real life is not like CSI. If you want a more realistic (though still not perfect) view of homicide investigation, watch “The First 48.”

  4. Lots of people seem to want to prosecute the shooter for the death of a 17 year old. I think that’s because the people who publicized this deliberately chose many year old photos of Trayvon to make him look like a child. These people are seizing upon every perceived inconsistency in a process that they don’t ever deal with to “prove” that there is some sort of conspiracy. They assume that there MUST be a conspiracy because the obvious killer is not locked in jail for his “crime.”

    Real life does not work that way. In real life, the accused has the presumption of innocence, and cannot be found guilty unless it is beyond a reasonable doubt. All these doubts people have aren’t things that can convict, but things that WILL acquit. The prosecutors know this. They won’t file charges against a person that they don’t think they can prove beyond a reasonable doubt.

    The biggest charge they can level against Zimmerman is Manslaughter, and they can’t prove it. So why bother? They aren’t going to deliberately file a charge that they can’t win just to placate a grieving family. They’ve gone as far as offering a Grand Jury to a screaming mob, but I think that’s too far. You can’t placate a mob by giving in. I would have simply told them no, not going to happen. You have to stand up to a mob; otherwise they start burning things down to get their way. Are you prepared to allow them to lynch Zimmerman? Demanding that he be prosecuted and found guilty with no evidence is basically no different than lynching him.

    Unless they are sitting on bombshell information (and why would they) there’s not a prayer of getting a conviction. Filing a malicious prosecution is something that can get you sued, and disbarred. Aside from that, it messes up your win/loss ratio.

    Here’s how I see it playing out. The Grand Jury MIGHT vote to indict. I rate that at about 25%. I think that they are much more likely to vote “no true bill” and let him walk. Even if they do indict, the next step is not a trial, but an evidentiary hearing where a judge makes a determination if it was self-defense or not. He make that on the basis of whether or not a reasonable person would believe that Zimmerman believed he was in immediate danger of death or serious bodily injury. He also makes that decision “on the preponderance of the evidence,” which means that if Zimmerman can show 51% or more that he was in reasonable fear, he wins, the judge rules it self-defense, and Zimmerman walks. I think that’s a slam dunk. With the original police report saying bleeding nose and back of the head and Zimmerman saying that Martin bashed his head into the sidewalk and went for his gun, it’s as clear a case of self defense as possible.

    People won’t like it, but that’s too bad. We don’t rule on appearances, we rule on facts. And if the Government doesn’t have enough facts to convict, we don’t.

  5. The very said thing about all of this is that we only have one side of the story – Zimmerman’s. Trayvon is dead and of course Zimmerman and his family will say any and everything to support Zimmerman’s claims of self-defense. Of course, self-defense would justify his having killed Trayvon. Given his motive, how could the PD just take Zimmerman at his word? This is unheard of and given the unusual things that occurred within the PD, the claims of self-defense are highly questionable. Zimmerman’s father, the Magistrate, obviously has a lot of influence. His son’s involvement seems to have bought out all the big guys to the scene of the killing, which I understand is very unusual. One might be led to believe that it was the same influence that helped Zimmerman escape a felony conviction when he assaulted a police officer in 2005. One thing I can say for sure, had this been a black man, regardless to influence, there would have most definitely been a felony conviction and this man would have never been allowed to carry a gun. Thus the reason that statistics show a large percentage of black men being incarcerated, compared to white men. The legal system simply does not work for black men in the same manner as it works for whites. Yes…a lot of odd things occurred on February 26th that caused suspecion and outrage. There was obviously cover-up. Regardless to Trayvon’s height, he was nothing more than a child. He was bearly 17, as he had just turned 17 three weeks before he was killed. So what the media displayed younger pictures of him, he was still nothing more than a child. What do you consider your 15, 16 and 17 year olds? Trayvon was nothing more than a child, especially compared to this 28 year old man. Trayvon had not mentally matured or developed the physical strength as a man of Zimmerman’s age. Zimmerman’s claims that Trayvon broke his nose and beat his head against the ground is absurd, but what else would you expect him to say under the circumstances? What would you say if you had just killed a person? Would your family stand by you, regardless to what occurred? As a mother of four children, when I heard that 911 tape there was absolutely no doubt in my mind that this was the voice of a young person. You don’t have to be a forensic expert to know that. Zimmerman’s father’s claim that the screams were that of Zimmerman’s was of course a desperate attempt to protect his own. However, the claims just do not add up. It just doesn’t make sense that an aggressor, armed with a gun, would cry, “help me”! None of the claims of self-defence add up. As far as the unidentified witness, I would question his/her reliability. Any decent person can see this case for what it is. For just one moment, put yourself in Trayvon’s parent’s place. Does the claim of self-defense add up? We really do need a lot of “soul searching”. If we would just practice treating others in the same manner that we wish to be treated, this would be a better world.

  6. Spelling, punctuation, and paragraphs.

    Video shows Zimmerman’s injuries.
    http://patdollard.com/2012/03/msnbc-admits-zimmerman-had-head-injury/

    independent witnesses verify that Martin was on top and beating him.
    http://justoneminute.typepad.com/main/2012/03/send-better-witnesses.html

    It doesn’t matter how many “holes” you think there are in his story, the fact remains that you have to prove him guilty beyond a reasonable doubt. I don’t think that can be done at this point.

  7. for some reason i can’t reply, but there’s no reason to be condescending about this. i’m not even a fan of csi and i have two lawyers in the family. i just wanted to state that, according to the florida statute in question, “detention” is defined as being part of the criminal prosecution that a shooter claiming self defense is supposed to be protected against. that’s my point. once they took him into the station the police had opened themselves up to being sued. so that’s very odd. either the police department didn’t actually know how to handle this kind of case and protect themselves from a lawsuit (the rationale the chief claimed for not arresting him in the first place) or (and this is seeming more likely as more news comes out) the police who detained zimmerman actually thought he should have been charged and were too incompetent to sweep the crime scene for evidence that could have exonerated or convicted zimmerman. that’s real life. whatever you might say about a howling mob, zimmerman really shot a dude, and he’s now paying the penalty of having the police take him at his word instead of following the law. and it’s not surprising that this is the result when people lose confidence in the police. if the tables were turned, i am positive that zimmerman’s father would have howled just as loudly that the police let martin walk while his son was in the morgue. that’s a natural reaction when your unarmed son is shot by some stranger.

  8. The rationale that the police used in the first place to explain why they didn’t arrest him was that they didn’t have probable cause, and if they arrested him they were breaking the law and opening themselves up to a federal civil rights lawsuit.

    Here’s how you know that the cops have nothing: They haven’t charged him. It’s not that hard to understand. If they had something that would prove his guilt, they would have charged him.

    I don’t understand why this is even considered unusual. Everyone has seen cop shows. They play this scene over and over in every cop show ever made. They haul in a suspect and interrogate him. They don’t get a confession, nor do they have enough to charge him, so they have to let him go. Sometimes it turns out that he’s the criminal, and they eventually prove it, and sometimes they prove it’s someone else.

    Self defense is a valid excuse and it doesn’t require the person you kill to be armed. Banging someone’s head on the pavement is the same as hitting them on the head with a brick. And if someone’s hitting you on the head with a brick, it’s perfectly legal to shoot them in order to make them stop.

    Until the cops can show, on the preponderance of the evidence, that Z was not under threat of death or serious bodily injury, they can charge him. Until then, it was valid self defense.

  9. So I guess it doesn’t matter that Trayvon was pursued by George Zimmerman, even after the 911 dispatch told Zimmerman not to follow him? How would you feel if some guy was following you late at night? But I guess there’s no EVIDENCE for that….except the 911 dispatch call.

  10. You know all of this how? Are you part of the investigation? Are you privy to anything that hasn’t been released to the media? I didn’t think so. Since basically everything about this story has been busted as more and more info leaks out, I am just going to categorize you as one more person who made up his mind the first day and has refused to listen to reason ever since.

  11. As a matter of fact the 911 dispatch call that Zimmerman made was released, anyone that knows how to google can look it up. Im suprised you don’t already know about it since you know so much, or you just like to pick and choose what is pertinent.

  12. I don’t have to Google it. It was posted at Sanford, Florida’s website.

    http://www.sanfordfl.gov/index.html

    It’s call #1. I’ve downloaded it and listened to it multiple times.

    Dispatcher: Are you following him
    Zimmerman: Yeah
    D: OK we don’t need you to do that
    Z: Okay

    Maybe you ought to listen again. That starts at about the 2:20 mark.

  13. seriously, you wrote a post that says “why does everyone think zimmerman wasn’t arrested”… explain how his detention was an arrest as far as the law is concerned, then state that the police couldn’t arrest him because they could open themselves up to a federal lawsuit. and that makes sense how?

    further, you’re saying that the cops needed to prove he wasn’t under a threat of bodily harm in order to charge him. you can’t prove a negative. these are fundamental flaws in the case. in normal murder investigations, you only have to place a person at the scene with the murder weapon to convict, let alone charging. we know zimmerman was there, that he shot martin and he confessed! your whole explanation demonstrates that not only is this case flawed, the whole law has huge problems if you can hunt people and get off by yelling, “he’s coming right for us!” they need to rename this the south park defense.

  14. Maybe you should have a sit down chat with a lawyer, or even a cop before you look even sillier than you already do.

    Given that they found him with a gun, and he said he shot the dead guy next to him, they had probable cause to arrest him for suspicion of a crime. Once he asserted that he was defending himself, and they couldn’t find any evidence to contradict him (plus those pesky witness statements supporting his story) they found that they had no probable cause to charge him. Without any evidence, they were required to release him without charge. The law is very specific about this.

    You can’t prove a negative? What kind of stupid statement is that? No one is asking them to prove a negative. What they are being asked to prove is that a crime was committed. Since they can’t prove a crime was committed, they can’t arrest and charge. This shouldn’t be controversial.

    So you think placing him at the scene with the weapon = murder conviction? Have you considered the fact that no one thinks that this is a murder? At best, it’s manslaughter, and only then if they can prove that killing him was unlawful. Since they can’t show it was wrong to kill Martin, they can’t charge him.

    I only hope that you don’t find yourself in a position where you have to defend your own life at the cost of another’s. But if you do, I hope that the police will carefully look at the situation and determine if you acted appropriately rather than just run you in for murder and damn the evidence.