What Would Jewish Law Say About George Zimmerman?
The recent acquittal of George Zimmerman in the killing of Trayvon Martin has been seemingly endlessly scrutinized and debated across the political and legal spectrums. Still, Jewish law might offer a new perspective. There are two areas of halacha related to self-defense and crime intervention: the law of the intruder and that of the pursuer. Each has its own set of criteria and applications that are worth analyzing in turn.
Regarding the intruder, Exodus 22:1-2 states:
If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt (en lo damim) in his case. If the sun has risen on him, there is bloodguilt (damim lo) in that case.
The Talmud (Bavli Sanhedrin 72a) explains that a thief who is breaking into a home to rob it at night must presume that the homeowner will likely be at home and will surely defend his property, prompting the robber to use violence. Since the homeowner may assume that the thief is ready to kill him, the homeowner may preempt and kill the thief first. If, however, the robbery occurs during the day, when people are not usually at home, then we can assume that the thief only comes to steal money and has no violent intentions. This reasoning also dictates where the law of the intruder applies. A homeowner may kill an intruder not only in his house, but also on his roof or in his yard. He may not, however, kill an intruder in his field or storage shed, since nobody is likely to be there (Mishneh Torah, Hilchot Genevah, 9:8, 12).
Night and day in the verse are not absolute categories, but rather guidelines approximating the degree of suspicion that the thief has violent intention. The homeowners must use a variety of factors in order to determine the level of threat in each case, time of day being only one of them (Bavli Sanhedrin 72a). Whether and to what extent dress, race, behavior and the weather could be calculated into this split-second decision is beyond the scope of this essay. However, it would seem that natural instinct should kick in here, and hopefully that instinct will be informed by verified statistical probabilities, not preconceived biases and prejudices. The slightest misjudgment as to the reality of the threat can make all the difference between life or death, self-defense or murder.
The law of the intruder law bears affinity to the Castle Doctrine, which dictates that a homeowner has a right to defend his dwelling with lethal force if he reasonably fears the intruder will be violent. The homeowner need not run away to avoid a confrontation. This law dates back to the Hammurabi code, which permits a homeowner to use lethal force in all cases, even when one is sure the thief will not be violent. A Torah innovation, followed by Western law, is to prohibit the homeowner from killing the intruder when he can presume that the intruder will not threaten violence. Some states, Florida among them, have extended the Castle Doctrine beyond one’s home to include any place where one happens to legally be, including a car, a subway seat, or a sidewalk. Halacha would extend the law to one’s outdoor dwelling places, but not to one’s field and certainly not to public space. In such cases, both halacha and states that have not adopted the Stand Your Ground law would require that the victim avoid confrontation if possible by running away or using non-lethal means.
The translation above follows Targum Yerushalmi and Ibn Ezra and takes the pronoun “he (lo)” to refer to the homeowner. Mishnah Sanhedrin 8:6, however, attaches the pronoun to the intruder, who is in fact the subject of every other verb in the sentence. In this reading, the intruder at night “has no life-blood”; that is, he is not considered alive because he is pre-sentenced to death on account of his future crime. It would seem that since this thief is not considered alive, the homeowner need not even try to stop the thief through non-lethal means, but rather may shoot to kill. In fact, since he is already dead, anyone who sees the intruder, not only the homeowner, may kill him. Once the thief turns to leave the house, however, then this law no longer applies and anyone who kills a fleeing thief would himself be liable as a murderer (Mishneh Torah, Hilkhot Geneva, 9:11).
George Zimmerman suspected Trayvon Martin of being a burglar. There had been a spate of burglaries in his gated community, and so he was looking out for suspicious characters. Martin had been walking on people’s lawns and behind their houses. If the area where Martin was walking was comparable to a courtyard that is regularly used by the homeowner, and it was further evident that Martin was in the act of robbing a home, then Zimmerman would halachically be justified in shooting Martin with intent to kill. However, this was not the case here; even the defense did not claim that Martin was in the act of a crime.
More relevant is to this case is the law of the pursuer. If A is pursuing B to kill him, then a bystander, or B himself, may kill A in order to save A from committing murder (Mishnah, Sanhedrin 8:7; this would thereby save B’s life as well, but the Mishnah’s primary concern is to save the pursuer, and the law would apply even if B consented to be killed). This law is derived from the law of rape at Deuteronomy 22:25-27:
25But if the man comes upon the engaged girl in the open country, and the man lies with her by force, only the man who lay with her shall die, 26but you shall do nothing to the girl. The girl did not incur the death penalty, for this case is like that of a man attacking another and murdering him. 27He came upon her in the open; though the engaged girl cried for help, there was no one to save her.
The implication of the closing phrase is that had there been someone to save the girl, he would be able to use force to stop the rapist from committing the crime. Since this case is explicitly analogized with the case of murder, one can infer that a murderer may also be stopped with violence (Bavli Sanhedrin 73a). In this law, as in the case of the intruder, the pursuer may be killed even if he is a minor (13 years old in halacha).
However, unlike the case of the intruder, the pursuer may not use lethal force unless absolutely necessary. This detail derives from Deuteronomy 25: 11-12:
11If two men get into a fight with each other, and the wife of one comes up to save her husband from his antagonist and puts out her hand and seizes him by his genitals, 12you shall cut off her hand; show no pity.
The Talmud considers the wife’s action to be life-threatening and labels her a pursuer of her husband’s adversary. In order to stop her, one may only cut off her hand—implying that killing her would be prohibited, even though she threatens someone’s life. If, however, it would not be possible to save the pursuer by non-lethal action, then “show no pity” teaches that one may even use lethal force (Sifre Deuteronomy 293; Bavli Bava Kama 28a).
Zimmerman did not suspect Martin of attempting murder, and so he would have no right to harm Martin. He would, however, have a right to keep an eye on him. From Martin’s perspective, once Zimmerman begins to follow him, Martin could reasonably have been suspicious of his pursuer. That Martin was afraid is supported the testimony of his friend, Rachel Jeantel, who suggested that he run home. Martin may have worried that his pursuer would follow him even to his home, and, in any case, under Florida’s Stand Your Ground law, he had no duty to flee. Martin would then have the right to treat Zimmerman as a pursuer and use non-lethal force to stop him. If he saw that Zimmerman would not back off and instead threatened violence, then Martin would be justified even in using lethal force if necessary. Certainly after Martin saw Zimmerman’s gun he had every right to save his skin using whatever means possible—including bashing Zimmerman’s head on concrete. This in itself would not mean that Zimmerman was guilty of murder, since he had committed no crime and had a right to defend himself once engaged by Martin. It is thus possible that neither party acted criminally, despite the fact that one party ended up dead.
If Zimmerman had been returning to his car, as the defense claimed, then Martin would certainly have no right to start up with Zimmerman. If even a homeowner may not harm a thief on his way out, then certainly one may not harm a pursuer who has relented. In such a case, Zimmerman’s right to defend himself from a pursuing Martin would be absolute, although even here he would not be able to use lethal force unnecessarily. One has to imagine that Zimmerman could have pulled his gun before the fight ensued in order to scare Martin away or shoot him in the leg. If, indeed, Zimmerman purposely allowed the brawl to continue so that he would be left with no choice but to kill Martin, then Zimmerman could be considered a murderer for using unnecessary lethal force. However, without evidence of such–certainly without the two witnesses required by Jewish law–that remains speculative.
Certainly, there is a problem with a justice system wherein anyone can purposely instigate a fight and then kill his adversary under the protection of self-defense and get away with murder. On the other hand, people must maintain the right to self-defense without fear of prosecution. The Stand Your Ground law, not recognized in Jewish law, disrupts the balance between these two considerations, making it too easy to abuse the self-defense law. Even though Zimmerman did not make a Stand Your Ground claim, the law was discussed in the trial and was a major factor in the mind of at least one juror. One detail of this case that makes it especially fascinating is that Zimmerman enrolled–and earned an A–in a criminal justice course that discussed extensively the Stand Your Ground law using actual scenarios from YouTube. In his testimony before the court, the course instructor shared a mini-lesson of what he had taught Zimmerman about how this law is applied.
Rabbi Jacob ben Joseph Reischer, who lived in Prague from approximately 1670 to 1733, penned a responsum to a case that bears some similarity to the Zimmerman/Martin one (Shevut Ya`akov 2:187). Two teenagers were traveling together when they began fighting. One pulled out a knife and threatened to kill the other. The latter managed to overcome and kill the former. Rabbi Reischer rules that the killer cannot claim self-defense because there must have been some way for him to defend himself without using lethal force, and therefore he must repent for his actions. Rabbi Reischer would presumably find Zimmerman equally in need of repentance. I believe the public outcry over this case is not directed only at the verdict; the case certainly has much room for reasonable doubt. Rather, the issue is that a grown man with a gun must have made at least one misguided decision for such a tragic outcome to have come about. Even if no proof exists for Zimmerman acting criminally, he was at least irresponsible and lacked forethought as to how such a situation might end. Classical Jewish law would exile such a person to a city of refuge, where he would both be protected from blood avengers as well as have an opportunity to repent. Perhaps our country would do well to adopt an equivalent rehabilitation program for those found not guilty but still in need of atonement.
Rabbi Dr. Richard Hidary is an assistant professor of Judaic Studies at Yeshiva University and the Distinguished Rabbinic Fellow at Congregation Shearith Israel. He is the author of Dispute for the Sake of Heaven: Legal Pluralism in the Talmud.