03/29/2012 02:46 pm ET Updated May 29, 2012

Trayvon Martin Could Have Lawfully Killed George Zimmerman in Self-Defense Under Florida Law

Based upon the undisputed facts in this case and this crazy Florida statute, if Trayvon Martin had a gun, he could have lawfully shot and killed George Zimmerman. If he could have shot him, he certainly could have punched him in the nose, knocked him down and beaten him in his own self-defense. These are the undisputed facts which I believe warrant that conclusion: Trayvon was engaged in legal and permissible activity. He was carrying a phone, candy and a drink and headed for a specific destination. He was speaking on his cellphone with his girlfriend. No objective or reasonable basis existed to suspect him of any illegal or wrongful activity, except possibly "walking while black." Mr. Zimmerman, nonetheless, became suspicious and reported the "suspicious" activity to the 911 dispatcher.

The dispatcher specifically instructed Mr. Zimmerman not to follow Trayvon, but he ignored that instruction. Trayvon advised his girlfriend that someone was following him. When he began to run away from Mr. Zimmerman, Zimmerman can be heard running after him on the tape. He says something to the effect that "these a**holes always get away."

So at this point there is no dispute as to what is occurring -- Trayvon is trying to get away from Zimmerman and Zimmerman, despite the instruction of the 911 dispatcher, is chasing him. So here we have a young boy who has done nothing wrong running in fear, being chased by a large man, not in uniform, who has not identified himself in any way. We do not know whether or not Trayvon saw Zimmerman's gun, but if he did that would certainly make the conditions that much more fearful for him. I suggest that if at that moment Trayvon had a gun, he could have turned "stood his ground" and fired at Mr. Zimmerman, because under the statute: "a person is justified in the use of deadly force and does not have to retreat if he believes that such force is necessary to prevent imminent death or great bodily harm to himself." Force, other than deadly force, such as punching someone, is allowed when the person reasonably believes it is necessary for self-defense "against another's "imminent use of unlawful force."

What has been totally ignored in this discussion is the statutory provision regarding "aggressors," which Zimmerman clearly was. None of this would have happened if he had followed the dispatcher's instructions and not chased after Trayvon. Under the Florida statute the defense of justification "is not available to a person who initially provokes the use of force against him," unless the initial aggressor clearly retreats or withdraws and the assailant continues nonetheless. Can there be any doubt as to who provoked this chain of events? Zimmerman claims (through the police) that Trayvon hit him and was beating him. Witness accounts differ and a police video fails to show any injuries, but that claim, even if true, is hardly dispositive.

How could the police possibly conclude that there was no evidence to rebut Zimmerman's claim of self-defense in the face of these undisputed facts? It may well be that Trayvon was beating Zimmerman because Trayvon was in fear for his own life. Is there any evidence that Trayvon would have attacked Zimmerman but for Zimmerman's conduct? I concede that there is a factual dispute as to whether (as Zimmerman claims), Trayvon attacked him after Zimmerman had turned away and was heading back to his vehicle. But that suspect contention has to be weighed against the undisputed facts that Trayvon did not attack Zimmerman when he was chasing him, but supposedly followed him back to his vehicle and suddenly attacked him when he withdrew. When Zimmerman first displayed his weapon is also critical but unknown at this juncture. Those final moments may be in dispute, but nothing leading up to it is. In essence, Zimmerman and apparently the police claim that the self-defense available to him under the statute is not available to Trayvon, although Zimmerman was clearly the initial aggressor. Mr. Zimmerman is entitled to the presumption of innocence and the opportunity to be heard, but he is not entitled to be exonerated without charges and whatever further process is warranted following those charges.

Finally there is the question of whether or not Zimmerman issued a racial slur. That is in dispute, but no one can look at this tragedy without wondering what part race played in Mr. Zimmerman's suspicions, the investigation by the police and the decision to let Mr. Zimmerman leave without arrest or charges. I know that many resent raising the issue of race, but isn't it fair to ask -- if Trayvon had shot and killed Zimmerman as I posit at the outset -- would the result be the same -- would Trayvon be at home with his family without charges and Zimmerman's body being tested for drugs and alcohol?