MARCH 20, 2012 3:34PM

Trayvon Martin Case & Florida's "Stand Ground Law"

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 I would like to add that I would like to thank Derek Simms, Simms and Associates, for the opportunity to have studied the law from a practitioner's point of view as a paralegal, in addition of course to teaching Constitutional Law for eight years, if his proof-reading skills are most definitely superior to mine. :)

Simms and Associates: "Our Job is not to Judge, but Defend."

Florida Statute, often called a Stand Your Ground Statute:

"776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

 

The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and... "(other conditions not present).

It seems at first glance rather obvious from a fair reading of the Florida statute, often called a "Stand Your Ground Law," that this unpopular in some circles type of law in the Trayvon Martin case will actually work as intended, in the prosecution of the alleged shooter.

But then that's for a jury to decide in the end.

This is because his use of force would not seem to be authorized under that Statute, if it does make some wonder as to the wisdom of such a statute not being more clearly stated as to a non-law enforcement officer only being authorized to use force on someone only using obviously potentially lethal force against another person, and announcing that very clearly to the public, to protect people from being led astray by what can be a well-intentioned desire to protect their community from crime.

That would solve the "Virginia Tech" issue that some raise in the context of these laws as to public spaces, as opposed to domiciles.

Then again, that's why juries, grand and petit, decide such things, even if its a huge spectacle, if we of course already know that the State of Florida is obviously capable of handling such a thing.

Whatever the shooter's motive as to race, and that is unfair to presume, it is clear that under the Florida Statute, the shooter will have a somewhat difficult time arguing that when he accosted someone, as in this case, and who on tape apparently expresses no statement as to who he was accosting having committed a violent felony, or being about to do so (and  if there was a trepass on the gated community, that's a non-violent Class A/First Degree Misdemeanor),  that his use of force was justified, especially since under Florida Law, if one is within one's rights, possibly save as to trespass, as was only possibly Trayvon Martin, and even that's pretty marginal, "Stand Your Ground" applies both ways:

" A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony."

The statute is about domiciles and vehicles as it is written primarily, or "forcible felonies" being committed, and it would seem rather obvious that to defend such a case wouldn't be an easy task.

Then again, that's why we have juries, grand and petit, to decide such things, if of course the public has a right to know such things too, even if it causes what some might call a distracting spectacle.

It would seem to be hard to argue that this was a justified shooting as to trespass in a gated community, the best case from the shooter's point of view, as trespass is equivalent to an Alabama Class A misdemeanor, not a forcible felony:

"He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony."

Of course, the tragedy is probably partly that the shooter didn't listen to the 9/11 operator, who said, "We don't need you to do that," since absent a clear threat, i.e. someone wielding a gun, beating someone in the street, 999/1000 times, there is a reason for security professionals and police to deal with such things in a public place, which does not however make the law in and of itself a bad law, since in this case, given trespass as a Class A Misdemeanor and the way that the statute is written,  there will be some punishment for the shooter it would seem like.

But then again, that's why we have trials, even ones with huge amounts of publicity, something that people feel like that they have to watch on television, just to make sure that justice is done.

finis

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It would seem that way, and it's what it looks like to me. However, there is another section of the law that says even if he initiated the contact, if he withdraws and claims Trayvon kept coming, then he is immunized.

776.041. Use of force by aggressor

The justification described in the preceding sections of this
chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the
commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself,
unless:
(a) Such force is so great that the person reasonably
believes that he or she is in imminent danger of
death or great bodily harm and that he or she has
exhausted every reasonable means to escape such
danger other than the use of force which is likely
to cause death or great bodily harm to the assailant;
or
(b) In good faith, the person withdraws from physical
contact with the assailant and indicates clearly to the
assailant that he or she desires to withdraw and terminate
the use of force, but the assailant continues or resumes the use of force.

The law is freaking insane and is widely opposed by DAs and police, including, evidently, the Sanford PD.
One commenter said it's illegal to shoot a dog in Florida, but not a child...especially a black child.
Hi PJ. That doesn't sound like a likely defense to work, as subject was unarmed and younger, and smaller. That's a really hard to sell to a jury I would think.
I don't have a problem with people shooting breaking and entering, but it also isn't really something one would want to encourage too much, it would seem like, partly because people get prosecuted under these laws thinking that they were ok, when there is still a narrow set of circumstances in which one is legally authorized to use deadly force. Small, like violent/forcible felony. Where is the ability the shooter will have to articulate what felony? I doubt it, which means there may well be two tragedies here in the making, as it will be some sort of manslaughter charge not unlikely coming down the pike, save the trespass argument, which is weak, as that is a misdemeanor. And again, if someone sees someone being beaten in the street, of course, people shouldn't be prosecuted for intervening generally speaking. That part of the law is fine, but, it might really be a good idea to have it clear when and when that isn't the case as to being ok in public service announcements.
Don,
Be assured Zimm's lawyer will coach him ahead of time and get away with it, given the sorry inadequacy of the on scene police interrogation. "I tried to stop. I backed off and told him to stop also. That's when he came after me and when I shot him."

This whole insane expansion of the Castle Doctrine and self defense is a brand new concept in law, changing centuries of law. It needs to be ended.
Check out the story I left on Klingaman's blog on this subject. It comes from a national assoc of DAs.
I'll only repeat what I said elsewhere, and the assumptions I made in that comment sound remarkably close to what we've come to understand about the actual events in this tragic case.

"However well-intentioned, the law protecting Zimmerman is fatally flawed. As I understand it, it has already led to the deaths of 11 people in Florida, 10 of whom were unarmed. This felonious excuse for a law attempts to justify acts that don't even rise to the level of vigilantism. There was nothing here to avenge except a pathetic little man's wounded pride.

In fact, the most telling evidence against Zimmerman are his own words -- "they always get away with it". Leaving aside the hateful aspect of who "they" are, this clearly indicates motive and intent to commit a crime, that is to take the law into his own hands.

Let's assume for the sake of argument that Zimmerman, despite the order given him by the police operator, accosted Trayvon and demanded to know what he was doing in the (white) neighborhood? Certainly, Trayvon had no duty to answer that question or otherwise respond to a belligerent white man who showed no identification establishing him as an authority figure.

And let's assume that Zimmerman, emboldened by the 9mm tucked in his belt pushed the issue and stepped into the path of Trayvon and continued his belligerent demands. And let's suppose Trayvon, who in such a situation would be the one actually threatened, tried to push past Zimmerman.

From that point on, any further escalation by Zimmerman was -- or certainly should have been -- illegal. In most jurisdictions, he was already guilty of assault, and any physical contact with Trayvon would make him guilty of battery as well.

But instead of staying in his vehicle as he had been advised by the police, he chose to escalate the confrontation. It's possible that words and blows were exchanged. But there seems to be no evidence that Zimmerman was in imminent danger of "death or great bodily harm" (quite the contrary is obvious from the fact that Trayvon is dead), and thus there was no need to "stand his ground".

At any point, Zimmerman could have just walked away. Had he done so, he would not be facing a real threat to his freedom, and if incarcerated, a likely real threat to his life, given the nature of this case.

But far more importantly, had Zimmerman done so, Trayvon could have walked away, too."
The potential for abuse of this law is mind boggling. This law should guarantee a walk for all killings by domestic violence victims, simply due to state of mind, and opens the door to some very scary scenarios.
r./
Look Donny, I know you erased my comments on one of your earlier posts where I liberally used the 'n' word. As an Alabama boy I don't understand what your difficulty is with a little good-natured racism. You ain't a LIB'RAL are youse? Trayvon got what he deserved...for having that ridiculous first name, ridiculous names being beloved by the Afrikan-'Merikan savages, and for eating Skittles...case closed...wink
Yes CA, I deleted only those words, for civility reasons, but you are of course always welcome, and if I'm reading about Hannibal Barca, to see why he lost to avoid that, have been on the Glenn Beck show when on CNN, published by a libertarian think tank, and ... have a rather lot of personal associates and friends in the military, including one at Gitmo, I don't think I'm a liberal.
I think he has a weak case for it being a good shoot, but, to be fair, working for a criminal defense lawyer has taught me that one wants to see it adjudicated properly too, hence the quotations of the law.
having done a fair amount of security work over the years, I don't personally think you generally speaking want untrained individuals trying to be John Wayne, since it takes a certain mindset to enter a potentially violent confrontation in control of your own emotions and ready to deescalate quickly. We'll have to see what the grand jury says, although there could be a prosecution no matter what, but to my reading of this law and a similar Alabama law, its a problem for the shooter, although Simms and Associates would love to take the case on a associated basis, if there is of course a fee.
Don,
The problem is juries never even see these cases, as the law provides immunity up-front. It's a bad law, period. If he killed somebody else in addition to Trayvon, the case, criminal or civil, would never see a court room. That applies to Trayvon's murder as well. The law is rigged against practicality and sanity. A license to kill.
We'll see what the grand jury says in a few weeks, but I don't see where they'll find the whacked-out law was violated if DAs and judges can't. If they don't - problem. However, perhaps politics helps push it into a charge. If the charge is weak--problem.
The idiots who promoted the law--the NRA, Repubs and Bush -- would be made to look like the jackasses they are if this goes to a regular jury and they find no violation of the law--bigger problem. Hell will break loose and for damn good reason. I hope all parties to this get it broken off in their asses.
It will be seen by a jury, grand first, then petit almost surely.
The shooter committed a misdemeanor of false arrest, and then compounded his situation. That will be the defense burden in the end, if the law firm I work for, Simms and Associates, would take that case I think, as our job then would be Derek Simms motto: "Our Job is to Defend, not Judge."
On a manslaughter charge, I should think that would be a good fee. :)
It would be ironic if the young man's "crime" was actually exercising his legal right to "stand his ground" when continuously followed (or stalked, we might say) by the self-appointed pseudo-patrolman by turning around and asking him(as is now reported by his friend on the cell phone) "Why are you following me? What's your problem?" or words to that effect. After all, under Florida law, he was under no legal obligation to flee Zimmerman's armed approach & baseless challenge of his presence, after all. And his "suspicious" behavior may have only been having the hood of his hoodie up....because it was raining, as has been reported. If so, too bad his exercise of his rights under Florida law is exactly what cost his life.
The law is pretty clearly aimed at a narrow set of circumstances when you read it, and so if he can't show the he believed, and that means there has to be evidence that this could be so, that there was some crime being committed, he is in deep trouble on the shooting, precisely because the law doesn't give anyone a right to open fire under any circumstances at all.
Don,
The law is insanely vague. I read about gang bangers yesterday. One car fires a small caliber shot, the other bangers open up with AK47 fire and chop the car to bits. They hide the guns, cops show up, arrests are made. They get a PD, the law is used and then they walk free. If what you say is true, then why are the police refusing to make arrests, DAs refuse to file charges, and in the case I cite above, even when they think they have a case, the perps walk. You're laying down a sound track that doesn't fit the film.
The Florida caselaw is different PJ, so those are political decisions, not legally supported by Florida precedent.
Florida v Johnson (2011)
I found a Johnson v. Florida, 2010, but I'm not getting how it fits.
Gotta link?
its 2011, its a westlaw case, so I can't really link it, but hold on a minute.
I found a Fla SC ruling - Johnson v. Florida - Jan 5 2012. Still, not seeing the connection.
What it shows is that people lose self-defense claims with lethal force all the time.
It was a carjacking conviction and doesn't address the shoot first law. It's about a PD's decision to withdraw due to a conflict of interest.
That aside, the cases of justifiable self defense have taken a large leap since the law was passed. There doesn't seem to be a shortage of abominations. The example I posted on Klingaman's blog is about two drug dealers who get in a shoot out and end up killing a child playing outside. Both guys walked, and the law prohibits any criminal or civil case being brought against either guy for the death of the child.
Face it, Don. It's a NRA and Republican law that stinks to high heaven. It should be taken down in Florida and everywhere else the coordinated ALEC effort has produced carbon copies. A complete change in centuries of established law has produced ample evidence the law as it was was good law, and this is insanely bad law.
Its not a carjacking case I cited. There was a fight, that escalated, and actually, the defendant had a claim, and lost. Happens all the time. Self-defense of the use of lethal force, that's a hard case to win, if prosecutors may not always bring it, for whatever reason, but if they do... its not a gimme at all.
I'm seeing plenty of "gimmes" in Florida. It's not as nuanced as you say. There's a reason police departments and DAs can't stand the law and I can see why. In the gang-banger case, the police figured it was an ambush. The car pulls up, the other group opens fire, the victim gets off one shot from a small caliber weapon (hard to say who fired first, but the perps claim was the guy in the car did--one shell of his found), thus establishing the chop-chop AK fire as Self Defense. The bangers end up walking.
It's kind of funny when you think about the political proclivities of the NRA and right-wingers--they invented a Gang Bangers get-out-of-jail-for-free law.
If you can Nexus, find a case where the law was used in a failed defense and we'll see why.
It fails as a defense all the time.
There were issues of instruction as to "forcible felony," but a properly written jury instruction solves that.
It's not going to solve Mr. Zimmerman's problem either.