The family of 17-year-old Trayvon Martin still waits for criminal charges against the neighborhood watch captain who shot him on February 26. The young black man was walking back from the convenience store where he had picked up a can of iced tea and a bag of Skittles for his younger brother, when he was confronted by 28-year-old George Zimmerman, a white or Hispanic man, depending on accounts. We are unsure what, exactly, happened next but Mr. Zimmerman shot Martin dead and claims it was self-defense, and local police say they do not have evidence that contradicts his story.

In the 911 calls released Friday by police, I believe we do hear evidence that contradicts his claim. In Mr. Zimmerman’s own 911 call, not only does he give his motive for planning to kill Martin (“These a**holes always get away.”), but he reveals that at one point Martin is running away and Zimmerman pursues him. This means that Mr. Zimmerman is clearly the instigator of the conflict, and when a person intentionally starts a fight with another person, he cannot later claim self defense unless he is confronted with force “so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm,” such as if Martin had pulled a gun or had a knife, which was not the case.

(CNN offers a summary of the case, and the Orlando Sentinel has posted several 911 calls.)

However, even if police do not end up pursuing murder charges against George Zimmerman, the family should pursue a wrongful death lawsuit. Although self defense would bar a civil tort according to Florida law, it is unlikely to hold up based on the evidence I have seen. And there are several points of negligence on which Mr. Zimmerman could be held responsible for wrongful death.

First, as neighborhood watch captain, Mr. Zimmerman should have known Martin’s identity. The young man was staying with his father and his father’s fiancée. The couple were residents in the community, and this was not young Martin’s first visit. If there is any value to a neighborhood watch program, it is in their ability to be aware of events and people in the community. Mr. Zimmerman was negligent in his duties as watch captain if he was unaware of Mr. Martin’s status in the community.

Second, Mr. Zimmerman should have followed the direction of 911 operators when he was asked not to pursue or confront the “suspicious person” he reported. There is no legal requirement that a person obey the instructions of 911 operators, but the instructions do establish a “reasonable person” standard. Violation of the reasonable person standard is often considered the definition of negligence.

Finally, Mr. Zimmerman was negligent in either being unaware of, or deliberately violating, the guidelines for Neighborhood Watch published by the National Sheriffs’ Association’s USAonWatch, which oversees more than 20,000 watch programs across the country, though not the one in which Mr. Zimmerman participated. He violated the guidelines on a number of points. The guidelines explicitly state, “It should be emphasized to members that they do not possess police powers and they shall not carry weapons or pursue vehicles.” The guidelines also clearly give instructions that would have prevented the fatal confrontation: “Members should never confront suspicious persons who could be armed and dangerous.” Finally, the manual lists examples of suspicious behavior that would justify a call to police. This includes conduct such as “someone seen peering into car windows,” but in the 911 call, Mr. Zimmerman just reports a person on the street. Although “a stranger loitering in the neighborhood” is listed as suspicious, Mr. Martin should not have been considered a stranger.

Of course, the full facts of this case have yet to be revealed. However, even if police do not see fit to bring criminal charges, a wrongful death lawsuit does seem warranted, and should include the gated community, for permitting or encouraging an unauthorized and untrained neighborhood watch.

If you have lost a loved one due to the negligence of another person, you may be able to receive compensation for your loss. For a free case evaluation, please contact Robert W. Kerpsack, CO, LPA in Columbus, Ohio for a free case evaluation.