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What Would Jewish Law Say About George Zimmerman?

What Would Jewish Law Say About George Zimmerman?

August 6, 2013 in Latest
7 Comments

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.

 

7 Comments
  • Jankel 11:06h, 08 August Reply

    Very interesting analysis of a criminal case in Halachic way but it seems useful for the Judges’ and Jury’s skill and public opinion education…But for the Criminal and Pursuer, the question once answered…..they have already missed the point: one of the two is dead…. and the survivor in harsh judiciary condition….anyway.
    Or nothing happened if things were clear…..So the question wasn’t the point neither……..?

  • Kenneth Mathews 11:49h, 08 August Reply

    “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.”

    What Would Jewish Law Say About “Stand you ground” laws? The principle of the “Stand Your Ground Law” is recognized in Jewish Law – 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. – Night and day in the verse are not absolute categories, but rather guidelines for determining if there is an immediate threat to one’s life and/or the life of one’s family. The “Stand Your Ground” law does not make it too easy to abuse the self-defense law it prevents the degradation of self-defense law in favor of criminals – The “Stand Your Ground” law simply says that law abiding men have the the right to resist evil men with force if the criminal is an immediate threat and that law abiding men have no obligation to retreat in order to prevent harm coming to the criminal. The primary concern of the society should be protecting the law abiding by allowing them to protect themselves against criminals who are an immediate threat- The Society should not be protecting criminals who are an immediate threat from the consequences of their evil actions. Zimmerman didn’t make the “Stand Your Ground” law his defense because it didn’t apply to his situation – he defended himself claiming self-defense under different statutes and was found innocent by a jury of his peers. We live in strange world where men (liberals) think that it is somehow sophisticated and compassionate to take the side of criminals against their would-be victims. The “Stand Your Ground” law is simply an effort to prevent this twisted thinking from corrupting justice primarily in home self-defense cases.

  • Jonathan 13:52h, 08 August Reply

    “Martin would then have the right to treat Zimmerman as a pursuer and use non-lethal force to stop him.”

    Zimmerman was not a “pursuer”, first of all. It was *Martin* who was the pursuer: he did a menacing circuit of Zimmerman’s car before the latter ever even got out of it. He was also high on drugs, which makes you paranoid. Secondly, Martin was a racist who was profiling Zimmerman, and attacked him based on this. If Martin was not racist, or a violent person, Zimmerman would have seen Martin was harmless, and then none of this would have happened. But Martin tried to murder Zimmerman because of the color of his skin, and Zimmerman rightly shot Martin in self-defense. Based on the evidence actually available, Zimmerman could have been lost and stopped to ask Martin for directions – and the same thing would have happened.

    Also Kenneth above is right: Hidary doesn’t understand Stand Your Ground. All it says is that you’re not duty-bound to protect your attacker: you don’t have to run away. (It was also not applicable in this case anyway, since Zimmerman was restrained on the ground while Martin was trying to murder him.) In other words, Stand Your Ground is pure common sense, and the fact that a separate law is even needed is what is problematic with our justice system.

  • George Zimmerman and Jewish Law « There is Tikvah 14:01h, 08 August Reply

    […] On the Moment Magazine website, Richard Hidary, a Tikvah Affiliate Scholar in Academic Year 2012-2013, writes on “What Would Jewish Law Say About George Zimmerman?” […]

  • DaniEl 03:36h, 10 August Reply

    The “Stand Your Ground” law was not invoked as part of GZ’s defence. In fact the first crime that occurred that night was the felony assault that TM was perpetrating on GZ and he defended himself. Any analysis of who and why is pure speculative BS. If you were in GZ’s shoes on your back with a taller guy straddling you knocking you senseless, you would have done the same thing.

  • Arlene 15:43h, 11 August Reply

    If the objective would be for him to “be protected from blood avengers as well as have an opportunity to repent”, wouldn’t the facility be called a penitentiary?

  • Rabbi Philip J Bentley 20:07h, 11 August Reply

    This is a grotesque misuse of Halakhic principles. Martin was in a public space and not in a private domain. There was no basis for Zimmerman, a self-appointed policeman/vigilante to attack him, gun in hand. (Based on testimony – I watched parts of the trial- Zimmerman had to already have had his gun out in order to shoot Martin from a prone position as the holster was on his back) He was told by the real police to get back into his car. He had a history of calling in complaints against Black people dozens of times. At any rate the rules involving burglars is inapplicable to this case and Hidary’s whole argument is mistakenly based on those principles. Hidary’s use of pursuer laws is positively twisted. The commenter who brfought up “Stand Your Ground” law has brought in something that did not come up at trial so it is irrelevant. Most likely “Stand Your Ground” law was not raised by the defense because it would not have worked. Such laws are tantamount to a license to commit murder in any case, abnd there have been several cases to show that. Zimmerman got away with murder because the prosecution failed to prove its case. Members of the jury have revealed that they thought Zimmerman was guilty but the way the case was argued combined with the judge’s instructions forced them to acquit. Hidary is using a strained version of Halakhah to justify his own prejudices and opinions. Moment should not have published this piece. I am already considerting dropping my subscription for a number of reasons. This did not help.

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