Before Sanford, A New England Gunshot With Better Results

About a week before Trayvon Martin died while walking home from a Florida convenience store, another shot was fired by a private citizen confronting someone he found acting suspiciously in his neighborhood.

But that earlier case in Farmington, N.H., had a very different, and much less tragic, ending. Though it briefly drew national attention, the case of Dennis Fleming has dropped from the public agenda amid the uproar over the killing of Martin, 17, by George Zimmerman, who told police he was defending himself against the unarmed teenager. It is worth contrasting the New Hampshire incident, which was handled coolly and professionally, with the one in Florida, which has led to ongoing demonstrations demanding Zimmerman’s arrest, and even some overheated talk from both sides of possible riots if Zimmerman is not charged.

Fleming fired his gun, one of several that he owns, after he returned to his home and found that it had been burglarized. He then saw Joseph Hebert climbing out the window of his neighbor’s house. He shouted “Freeze,” fired the shot into the ground, called the police and held Hebert at gunpoint until the police arrived. The police arrested both Fleming and Hebert: Fleming for reckless endangerment and Hebert for burglary and drug possession.

County Attorney Tom Velardi then conducted a thorough investigation. Hebert confirmed Fleming’s account of events, and Velardi concluded that Fleming had not put anyone in danger. He dropped the charges. An initial public outcry over Fleming’s arrest promptly subsided.

Zimmerman has reportedly told police that Martin attacked him while he was patrolling his gated community as a neighborhood watch volunteer. The events at the conclusion of the fatal confrontation remain very much in dispute. Zimmerman’s family and other defenders insist that Martin physically attacked Zimmerman, knocking him to the ground, breaking his nose and leaving him bloodied, before Zimmerman shot Martin to protect himself. This is the version of events that apparently led Sanford police and prosecutors to conclude, in the days and weeks immediately following the Feb. 26 shooting, that there was insufficient evidence on which to charge Zimmerman. But the subsequent release of 911 tapes and other evidence prompted Martin’s family and many others to accuse those Sanford authorities of incompetence, indifference and cover-up. The federal Justice Department has now joined the investigation.

Though the final moments of the incident are in doubt, the events at the beginning are not. Zimmerman placed a 911 call when he first saw Martin, saying, “This guy looks like he’s up to no good or on drugs or something. It’s raining and he’s just walking around, looking about.” Zimmerman may also have muttered a barely audible racial slur. Zimmerman is white and Hispanic, while Martin was black. The dispatcher asked “Are you following him?” and when Zimmerman acknowledged he was, added, “OK, you don’t need to do that.”

At the same time, Martin was talking on the phone with his girlfriend. According to her, he said he was being followed. She advised him to run. She then heard him ask Zimmerman, “What are you following me for?” and heard Zimmerman reply, “What are you doing here?” After that, she says, there seemed to be a struggle and the line went dead.

Next, local residents heard calls for help, followed by a gunshot. Several people called 911. The cries and the shot can be heard on the 911 recordings. One resident, Mary Cutcher, told reporters, “I heard the crying. We were in the kitchen. It was a little boy. As soon as the gun went off, the crying stopped. Therefore, it tells me that it was not Zimmerman crying.” By the time police arrived, Martin was dead. Only one witness claims to have seen Martin attack Zimmerman. Even his account, taken together with the other evidence, seems to support the theory that Zimmerman initiated a confrontation and Martin tried to protect himself, despite the fact that Zimmerman was armed while he was not.

Race almost inescapably became a factor in the controversy that followed. The local police force has a history of problems with racial issues. In 2010, police waited several months before arresting a police officer’s son who had beaten a black homeless man, although the attack was recorded on video. Sanford is also where, back in 1946, baseball legend Jackie Robinson was forced to leave town because of his skin color after his first two days of spring training with the Montreal Royals.

But history, whether distant or recent, is history. The Justice Department will likely focus on whether race was a factor in Zimmerman’s actions or in the law enforcement response that followed, but apart from the slur some people believe they detect Zimmerman muttering in the 911 tape, no evidence of racial bias has emerged.

The case has also drawn significant attention to Florida’s “stand your ground” law. The law, signed by former Gov. Jeb Bush in 2005, allows an individual to respond with force, including deadly force, when he or she has “a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another.” Florida is one of 21 states with similar laws. These contrast with “duty to retreat” laws, which require individuals to make an effort to retreat from a confrontation before resorting to force.

Sanford police say the “stand your ground” law is the reason they have not arrested Zimmerman. They say there is no evidence that Zimmerman wasn’t exercising his right to self-defense in accordance with the law. Some critics of the police response, however, including former Gov. Bush, have said “stand your ground” is not applicable. “Stand your ground means stand your ground. It doesn’t mean chase after somebody who’s turned their back,” Bush said while speaking at the University of Texas in Arlington.

I agree that the law is irrelevant here. This is not a case in which someone faced a genuine threat and needed to decide between fleeing and using deadly force. This is a case in which an armed adult apparently followed and then killed an unarmed youth who was doing nothing wrong other than trespassing on the common grounds of a residential complex.

The Fleming case illustrates what happens when everyone involved is both careful and lucky. By firing safely into the ground, Fleming was able to detain a person he believed he had witnessed in the commission of a crime. Fleming was fortunate enough, however, to have a cooperative perpetrator. What would Fleming have done if the suspect had attempted to flee? No self-defense law authorizes a private citizen, or even a police officer, to shoot a fleeing burglary suspect in the back.

And what would Fleming have done if Hebert had attempted to wrest the gun from his hand, as Zimmerman claims Martin did? Is an armed private citizen truly exercising self-defense when he draws a gun on an unarmed opponent who has not initiated the confrontation?

If it was a tragic chain of miscalculations that led to Martin’s death, it was a fortunate chain of events, in which everyone acted with reasonable calm in a stressful situation, which de-escalated the Fleming-Hebert story into a run-of-the-mill petty crime.

The New Hampshire police did their part, too, by charging Fleming and leaving the matter in the hands of prosecutors. This avoided the appearance of a cover-up. It might have been a crucial factor in maintaining public confidence if it had happened that Hebert was non-white.

Sanford police argued that the Florida stand-your-ground law tied their hands. But they were faced with a dead, unarmed teenager, whose only possible misconduct on the night in question was to trespass across a gated community’s streets. They had an armed private citizen who had expressed unfounded suspicion of the dead boy, followed him against police advice, and ended up in a deadly confrontation. Maybe a court really would accept a self-defense claim from someone who precipitates the confrontation requiring self-defense, but that’s an issue for prosecutors, judges and juries to decide - not investigating officers.

When George Zimmerman stood over the body of the boy he followed and killed, police had probable cause to make an arrest. Sanford’s officers did not recognize that. New Hampshire law enforcement set a better example, and sent a more useful message to neighborhood watchers across America.

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