Off to Scandinavia for Two Weeks

Tomorrow I'll be off to Scandinavia for a few weeks. First Copenhagen, then Oslo, then Stockholm, then perhaps somewhere else. I've never been north of Denmark before, so the first trip is just hitting the capitals.

Needless to say, there will be lighter-than-usual blogging, and recommendations are welcome. 

Trayvon Martin, National Cliches, and German Smugness

I was quoted a few times in this Legal Tribune story (g) about the Zimmerman case, which makes the point that, if you consider all the facts surrounding the shooting of Trayvon Martin, a German court would likely have acquitted George Zimmerman as well. After analyzing the case in some depth, the author speculates about why the German media has been so consistently wrong about the case (my translation):

Where does the mistaken impression come from that American self-defense law is so much more permissive than German law? For one thing, ignorance of the foreign legal system, combined with national cliches which assign Americans the role of pistol-wielding cowboys. The circumstances of the case certainly lent themselves to this interpretation at first glance.

No, that's not a quote from me, but I could hardly agree more. Coverage of the Zimmerman case in much of the mainstream German media has been marked by truly epic incompetence, smugness, and East-German style moralizing tendentiousness.* So many German journalists desperately wanted to believe that an all-white jury set Zimmerman free after he gunned down a young black man for no reason. To this end, they have resolutely ignored anything that complicates that narrative (why let the facts get in the way of a good story?), implicitly reassuring their readers that in Germany, the best of all possible worlds, such a horrible scandal could never take place.

Much of the coverage has featured in-depth interviews with protesters venting their opinions about the case, as if that were any way to shed more light than heat. Whenever I see German news teams broadcasting completely uncritical interviews with American protesters, I always feel a temptation to go to Occupy Frankfurt, interview some of the ragamuffins and leftist extremists camping out there, and broadcast them on German television until every German viewer is convinced their country is a fascist police state with massive unemployment.

Now, before this post gets any more ranty (but that was pretty fun), I'll just make a few points before moving on from this topic forever:

  • The jury in the Zimmerman case was not all-white. There was one member who was non-white. Although there is no Constitutional requirement that juries mirror the local ethnic composition, this one did. 1 out of the 6 jurors was non-white and Seminole County, Florida, is 78% white. The jury was all-female, which is a bit unusual, but I can't imagine what difference that would have made. Zimmerman himself, of course, is half-Peruvian, and would be identified by most Americans as 'Hispanic', for what that's worth. Only 8% of German judges (g), by the way, have foreign origins, and the number who have dark skin is no doubt miniscule.
  • The jury deliberated 16 hours on the case, was divided over the issue of possible manslaughter liability for a time, but then came to the unanimous conclusion that Zimmerman acted in self-defense. To reach that conclusion, they had to find that George Zimmerman, at the time he fired the gun, had a reasonable fear of great bodily harm or death.
  • Although we will never know exactly what happened and Martin isn't here to tell his side of the story, Zimmerman consistently stated that he followed Martin for a time, that Martin turned around and came back toward Zimmerman and confronted him, and began the physical fight. Martin got the upper hand, forced Zimmerman to the ground, punched him in the face, and hit his head repeatedly against the concrete sidewalk. At this time, Zimmerman fired.
  • Zimmerman had called the police, with the call ending at 7:15 pm, and knew the police were on their way to find him, which they did at 7:17 pm. If you were planning to gun down an unarmed person for no reason or just out of spite or racism, would you (1) call the police beforehand, and (2) carry through on the plan knowing the police were literally seconds away?
  • Physical evidence corroborated Zimmerman's story. He had injuries on his face and head consistent with the story, he had grass stains on the back of his clothes, and the gun was fired from the position he said it was fired. His basic account of the confrontation remained stable through several explanations to the police, which is why the police believed him. The jury, after hearing hours and hours of evidence during a full formal trial on the merits, also found his story about the physical confrontation credible, otherwise it's difficult to see how they would have reached the verdict they did.
  • The 'stand your ground' law in Florida played a role in the case, but it wasn't decisive. The defense never invoked the 'stand your ground law' during the trial. They did not have to — their theory from the very beginning was that, at the time of the shooting, Zimmerman was on the ground, being repeatedly hit by Martin. Since there was no chance of his escaping anyway, the question of whether he should have tried to do so was moot. It is true that the phrase 'stand his ground' appeared in the jury instructions and one juror has said they discussed the idea. But there's no evidence the law played a significant role. Zimmerman would have been acquitted by the jury even if Florida didn't have a stand your ground law.

Zimmerman would probably have also been acquitted under German law. German law also has a 'stand-your-ground' principle, called (in various wordings) 'Recht muss dem Unrecht nicht weichen' — someone who is not doing anything illegal is not obliged to retreat in the face of an illegal attack. The response to the threat must be proportional, but the judge will take into account the means available to the attacked person when judging proportionality. You cannot immediately respond to a punch with a knife, for example, but if you are punched repeatedly and you have a reasonable fear of severe bodily harm or death and cannot adequately defend yourself with your fists, you may then use the knife. German law also allows you to use a gun in these circumstances. If you are being physically attacked, have a reasonable fear of severe injury or death, and the gun is the only realistic means you have to stop the attack, you may use it to defend yourself. You are ordinarily expected to yell a warning or fire a warning shot, but the law will not require you to do these things if the circumstances don't allow for it. As does American law, German law realizes that a physical fight is a chaotic event and that you cannot expect people to exercise careful, detached judgment in the middle of one.

Of course, spinning out a counterfactual about how a case would have played out in another legal system is only a mental exercise, but I think that Zimmerman would have had a good chance under German law. He would have argued that (1) he was doing nothing illegal at the time of the incident (following someone isn't a crime, nor — for the purposes of this hypothetical only — is owning a legal, licensed concealed weapon); (2) Martin started the physical confrontation; (3) Martin got the upper hand, forced him to the ground, and punched him and hit his head against a concrete sidewalk; (4) he was unable to defend himself with his fists against the continued beating and feared serious injury or death; (5) was not in a position to yell a warning or fire a warning shot, since he was lying on the ground being punched; and (6) fired the gun in self-defense.

Of course, it should go without saying that the death of Trayvon Martin, like the senseless death of any 17-year-old, is a tragedy (in the genuine sense). Martin was where he had a right to be and was doing nothing wrong when some guy began to follow him for no reason he could discern, quite possibly just because he was black. It appears Martin may have overreacted out of fear or anger, but it's hard not to sympathize with him. If Zimmerman hadn't been carrying a gun, it's likely nobody would have died. But still, this case is simply not a convincing symbol for the very real, very problematic racial and class disparities in the U.S. criminal justice system. In fact, it's not even a symbol of how 'different' American justice is from German, or European justice. The fact that so many (not all, but many) German journalists have tried to make these points by using a selective and distorted version of the case is yet another serious black mark on the German media.

* I know this comparison is unfair. It's unfair, that is, to East German media. I once read a content analysis of East and West German school textbooks from the 1980s which found that the West German textbooks presented a more biased, one-sided, and negative portrayal of American society than East German textbooks. Let that sink in for a minute. (I'll work on getting the cite for this soon).

The Stasi as a Cautionary Tale

Scott Horton agrees that the NSA-Stasi comparison is inapt, but notes that it can have a cautionary relevance:

East Germany was indeed a surveillance state, but it was one in which the power and authority of the intelligence services to spy on their own citizens rested on an elaborate network of laws that empowered surveillance and eroded the rights of citizens specified in the country’s constitution. The detention of citizens was subject to strict legal regulation, and long-term imprisonment rested on decisions taken by courts. As is the case in many nations, matters that involved sensitive national-security issues could be tried in secret by special courts (the 1a panels of the Bezirksgerichte), but long-term detention required a criminal conviction. The conduct of Stasi officers was also subject to careful regulation and discipline — there are, for instance, no documented cases in which Stasi officers physically tortured detainees using such “enhanced interrogation techniques” as waterboarding and forced standing, which were approved and employed in recent years by the American intelligence community.

This isn’t to say that the Stasi was any less loathsome, only that it operated under the strictures of a highly formalized legal system. This system ultimately bent to allow increased Stasi surveillance, and the rights of East German citizens became ever more ephemeral. This is not the reality of America today. However, the Stasi’s evolution does reflect the corrosive effect a powerful surveillance apparatus can have on legal institutions — in other words, it reflects what America (and Germany) must guard against.

Neanderthal Descent and Rock-Crusher

Last weekend I took my GoPro on this fantastic mountain-bike tour (g) through the Neander Valley and nearby areas. The first bit is a fun descent down a hillside road (pardon the stabilizer artifacts, still working on the technology), the second is a panning shot of a 'rock-crusher'. Part of the bike tour goes through Grube 7 (g) (Quarry 7), a former chalk-quarry pit that was closed down in 1964 and allowed to return to nature. There are a few reminders of its former purpose, though, including this huge platform, which was the above-ground portion of a rock crusher, now left to be slowly reclaimed by ivy and mosses. 

You Can Also ‘Stand Your Ground’ in Germany

There's been a lot of banter about 'Stand your Ground' in the German media lately. Many of the legions of lazy German journalists seem to be convinced that it allows Americans to simply begin firing at anybody they consider to be suspicious-looking. In fact it means only that if someone else begins a physical confrontation with you, you are not under an obligation to retreat from it. Instead, you can use force to defend yourself — as long as that force is reasonable in relation to the danger.

Is it different in Germany? Not very, argues GJ commenter Paul:

Germanys self-defense law is very generous to the self-defendant. "Recht muss vor dem Unrecht nicht weichen" is a time tested German legal principle and sounds suspiciously similar to stand your ground. It covers the use of deadly force to prevent the stealing of relatively unvaluable property. Many Germans don't undstand that and are foccussed on snippets from American movies and debates. You are right to point that out.

This piece in Slate makes a similar point:

English common law imposes a duty to retreat whenever it is safe. In continental Europe, the duty applies only when the defender provokes the attack, or when the attacker doesn’t understand the situation. (Europeans must retreat from young children with guns, for example.) Nor is there a general duty to retreat in countries like Japan and Argentina, which derive their criminal-law systems from Europe. Even England, originator of the duty to retreat, repealed the doctrine in 1967 by statute. Defenders of the European system argue that imposing a duty to retreat may prevent the attack on the victim’s life, but it permits an attack on his legal rights—the right to be in a public place, the right to move freely, etc. By passing the “stand your ground” law, Florida brought its laws closer to those of Europe. Otherwise, the U.S. is in the minority in having, within some states, an explicit duty to retreat.

It’s not entirely clear how much this doctrinal division matters in practice, though. There may be a practical duty to retreat under many circumstances in Europe, even if the law doesn’t explicitly say so. That’s because the law also says you can use deadly force only when it’s necessary to avert an attack, and the force must not be grossly disproportional.

To see how the doctrinally distinct English common law and European systems can converge on the same result in practice, consider a classic hypothetical: A disabled man in a wheelchair, carrying only a sword, assails an able-bodied victim, who responds by shooting the attacker to death. Under English common law, the killer could not rely on the self-defense justification, because he used deadly force when retreat was an equally safe option. On a different basis, a court in Germany, Argentina, or Spain would almost certainly convict the killer as well, despite the lack of an explicit duty to retreat. Deadly force was both unnecessary and disproportional. Because any given case is factually distinct, and the laws are subject to human interpretation, it’s impossible to say with certainty when one has a practical duty to retreat in any country.

In practice, the mainstream view of when deadly force should be permissible seems to vary minimally between countries. When a country’s laws produce an outcome that diverges from a standard people are comfortable with, the doctrine ultimately yields to the popular intuition. Here’s an example to illustrate that point. In 1920, a German orchardist was tending to his trees when he happened upon a thief, who immediately fled. To thwart the theft, the orchard owner shot and killed the thief. Arguing that “right need never yield to wrong,” the German court acquitted the shooter. Public questioning of that absolutist doctrine, however, eventually led to the adoption of the proportionality rule.

So, if Zimmerman provoked the attack in the Martin case, he might be under an obligation to retreat. But it's actually not clear who provoked the physical confrontation — Zimmerman claimed that Martin doubled back to confront him and started the physical fight, and there's some evidence that points in that direction.

It's also possible that German law would see the use of a firearm as a disproportionate response to an attack by fists. Commenter Paul believes Zimmerman would have been convicted of manslaughter in Germay for this reason, and the argument is sound. However, it's a bit hard to evaluate, since (1) Germans aren't allowed to carry legal firearms around with them, so the question rarely comes up, and (2) there are quite a number of beating deaths in Germany every year. When someone is actively pummeling you, it's not far-fetched to argue that the next blow could have rendered you unconscious and unable to defend yourself, so you felt a need to stop the beating at all costs, even with the use of a deadly weapon. Much would depend on the individual circumstances of each case — but then again, that's precisely what the jury in the Zimmerman case considered, for 16 hours, before they reached their verdict.

Interview about the Zimmerman Case on BR Radio


Here's an interview I gave to Bavarian Radio yesterday (in German) which was broadcast this morning. My legal analysis of the Zimmerman case, plus a mild howler.

 Me on BR Radio

In this post I clear up a misconception that I've encountered among many Germans, who seem to think that Zimmerman got out of the car, followed Martin, and then executed him in cold blood for no reason. The very fact that Germans believe that this sort of thing would go completely unpunished in the United States shows how grossly distorted the German image of America can be.

As the photos above show, there was a physical confrontation between Martin and Zimmerman before the shot was fired. Zimmerman's injuries were not life-threatening, but they do show that there was a chaotic, physical fight before the shots were fired. The jury found that Zimmerman fired his gun because he reasonably feared, in the precise words of Florida law, 'imminent death or great bodily harm to himself'. The fact that Zimmerman provoked the confrontation by following Martin was only of secondary relevance from a legal perspective, whatever you think of it from a societal perspective.

This is not to say that I endorse Zimmerman's actions. It's a simple plea for Germans to inform themselves more fully than their own media typically does before making a judgment. And if you think that German law on self-defense is very different, you might want to read this court decision (g) in which a German court ordered the complete release of a member of the Hell's Angel's motorcycle club who shot and killed a German SWAT-team member without warning (except for yelling 'fuck you') as the officer was trying to enter his apartment and conduct a search. The court found that since the Hell's Angel's member was in his home and feared for his life because the Bandito gang wanted to kill him, his mistaken assumption that the break-in was being done by the Banditos, coupled with the fluid and unpredictable situation, allowed the biker to immediately shoot to kill without firing a warning shot or announcing his intentions.

Of course there are differences between the two cases, but they certainly show that German law also permits you to use deadly force to protect yourself if you believe you're under threat — and that the law recognizes that in a fluid, fast-moving situation like a physical confrontation, you cannot expect participants to obey all the niceties of civilization.

The Kevins are Failing in France

A French sociologist has released a study showing that French students with English names get worse scores on the bac: 

What jumps out is the high frequency of English language names on the left hand side of the picture. People named Kevin, Anthony, Jordan, Cindy, or Dylan were much less likely to receive high scores. Although there is some evidence that names can affect how children perform in school, this more likely reflects naming preferences: parents in lower social classes are more likely to name their kids after characters from American tv shows or music groups than parents from higher social classes.


The U.S. to the Non-English Speaking World: We Spit on Your Privacy

So, almost a month ago I was asked whether Edward Snowden was a hero or a villain. I thought that was a pretty foolish question, and it still is. His personality is irrelevant: what is important is that he's uncovered a level of arrogance and cynicism on the part of the NSA — and, by extension, the U.S. government — that will damage America's reputation for decades. 

The revelation of spying on American citizens, although dramatic, was not the biggest bombshell. Many Americans surmised as much, and given how many liberties Americans have sacrificed in recent years, you could perhaps almost argue that Americans implicitly consented to being spied on. But that's certainly not true of the citizens of Germany and Brazil. As I pointed out in an earlier post, U.S. law currently affords zero protection — zero — to the privacy rights of non-U.S. citizens located outside of the U.S. And it now appears the NSA has been ruthlessly exploiting this fact to hoover up millions of pieces of data on all other countries. According to Der Spiegel, the NSA has spied on 500 million data connections of Germans. And just 2 days, ago, also relying on Snowden documents, Glenn Greenwald reported that the NSA is also indiscrimately vaccuming up the emails, phone calls, and other data of millions of citizens of Brazil:

I've written an article on NSA surveillance for the front page of the Sunday edition of O Globo, the large Brazilian newspaper based in Rio de Janeiro. The article is headlined (translated) "US spied on millions of emails and calls of Brazilians", and I co-wrote it with Globo reporters Roberto Kaz and Jose Casado. The rough translation of the article into English is here….

That the US government – in complete secrecy – is constructing a ubiquitous spying apparatus aimed not only at its own citizens, but all of the world's citizens, has profound consequences. It erodes, if not eliminates, the ability to use the internet with any remnant of privacy or personal security. It vests the US government with boundless power over those to whom it has no accountability. It permits allies of the US – including aggressively oppressive ones – to benefit from indiscriminate spying on their citizens' communications. It radically alters the balance of power between the US and ordinary citizens of the world. And it sends an unmistakable signal to the world that while the US very minimally values the privacy rights of Americans, it assigns zero value to the privacy of everyone else on the planet.

The reason for the mass violation of privacy rights is apparently the fact that Brazilians don't speak English. Only a few countries worldwide are exempt from NSA spying, as Der Spiegel reports:

One top secret document also states that while Germany may be a partner, it is still also a target of the NSA's electronic snooping. According to the document, Germany is a so-called "3rd party foreign partner." The only countries that are explicitly excluded from spying attacks are Australia, Canada, New Zealand and the UK. "We can, and often do, target the signals of most 3d party foreign partners," a slide from an internal presentation states.

If these revelations turn out to be largely true — and, after a month of embarrassed, foot-shuffling silence from Washington, does anyone really doubt that anymore? — this should provoke a massive diplomatic crisis. Imagine that: you're a Brazilian using the Internet, and you know know that it's entirely possible that some spy thousands of miles away in Virginia can, if she wants to, read your emails or listen to your phone calls to your children, or mistress, or dying relative. If that doesn't provoke outrage and fan anti-American sentiment, it's hard to imagine what would.

What possible rejoinder could there be? 'Oh, don't worry, we don't listen to the really personal stuff, but we can't prove that, because the guidelines are all secret and you we won't tell you anything about them.' The U.S. is effectively saying to millions of Brazilians: 'We are going to spy on you, not because we deserve to, not because we need to, not because you authorized us to, but just because we want to and we can. If you don't like that, go dance a little samba or something.' This doesn't just climb the summit of arrogance, it jumps into a balloon and ascends into the troposphere.

Freiburg and the Black Forest

I spent the weekend in Freiburg courtesy of the German-American Lawyers' Association (thanks!) and got to enjoy that delightful city again. The people are friendly and laid-back (Freiburg gets more sun than any other place in Germany), the food is outstanding (Freiburg is right on the border with France), and the small old city is filled with artificial rectilinear 'brooks' (Baechle), about a half-meter wide and deep, through which cool, clear water courses rapidly. Kids float boats down them, people cool their feet on hot summer days, and the sound fills the narrow streets. These little brooks aren't covered, so one of the most amusing pastimes is listening for the agonized shrieks of tourists who, gawking at old buildings, have wrenched their ankle into one of these Baechle. You can't sue, because it's tradition. Besides, the locals say if you trip into one of the Baechle, you'll marry someone from Freiburg. I so far have managed to step over every one of these Baechle.

A hilly chunk of the Black Forest thrusts directly into Freiburg from the East like a giant arrow. This means that you can walk 10 minutes from the city center and literally be inside the Black Forest –especially if you take the mountainside railcar, which lifts you about 300 meters to the main hillside trail. In most other places in the world, this hillside would be covered with the mansions of the rich, but not in Freiburg. I hiked about 4 km into the Black Forest to the forest shrine of St. Odile of Alsace, a small baroque church housing a spring whose water is supposed to heal eye problems. According to this church website, the water has tons of radon in it, but that didn't stop a few pilgrims from washing their eyes with it (!) while I was there. Odile was born blind in the 7th century but her vision was restored through prayer, so one of her typical iconographies is a book with human eyeballs projecting from it, as in this Baroque sculpture from the church. There was also a group of young Germans who recited the Ave Maria in German in a monotone over and over, interspersed with some prayers sung in Latin. I wonder what this devotional exercise is called.

Here is St. Odila with her chalice-book-eyes! The some pictures of Freiburg, greenery and forest views, a panorama of the valley in which Freiburg is locaged, a foxglove plant (which is called Fingerhut — finger-hat! — in German), the interior of the St. Ottilien church. Oh, and a hideous, gigantic Brutalist building (housing a Breuninger department store) excreted like a steaming pile of shit right into the middle of Freiburg's Old City. 

Sculpture of St. Odila in St. Ottilien Church
View of Karlssteg in Stadtgarten
Brutalist Building in the Freiburger Altstadt

View of Path to St. Ottilien
Foxglove Plant on path to St. Ottilien
Panorama of Freiburg from the Burghaldering
Forest Clearing near Freiburg
Stand of Pine Trees on Path to St. Ottilien
View of Passionsweg near St. Ottilien
Interior of St. Ottilian Church