A Question For the Armchair Lawyers

[ttwtt78640]

Well, I don't know where you studied law, but my understanding is if one person has a gun, and the other person does not, then the person without the gun is facing imminent death or serious bodily harm, while the person with the gun...is not.

Point two: If the person with the GUN (who is NOT a police officer) approaches a person without a gun, that unarmed person having a reasonable presumption of imminent death or serious bodily harm has a right to act in his own self-defense.

Point three: If the intial aggressor (the guy with the GUN) fails to announce his intention to retreat, and fails to try to retreat once the person without the gun starts to defend himself, he loses the right to claim self-defense.

Point four: If the initial aggressor (the guy with the GUN) then shoots and kills the the guy without the gun, then he is correctly answerable to a charge of homicide without the right to claim self-defense.

This is all in conformance with the quoted law. Where are you confused by my answer?

Nonsense! What evidence do you have that GZ ever used the gun to initiate aggression? I carry a concealed rape tool and have approached many women - is that attemped rape? Simply possessing a gun is not an act of aggression.

 

[soccerboy22]

He would have plead "not guilty". He's the one being charged so the only thing he has to do is prove that he's not guilty of the particular charge. That's where that whole "presumption of innocence" comes in. It's kind of like if you get busted for DUI. You don't have to prove you weren't drunk, the prosecution needs to prove you were.

First disclaimer: I haven't been following the case because I read enough cases in school that I don't need another one.

Anyways from the limited knowledge of this case I have, in this case since the State in my opinion overcharged Zimmerman he can probably just go with not guilty. However, if the State had gone with like 2nd degree manslaughter, then Zimmerman would have to offer the self-defense. There is no doubt that Zimmerman killed Martin, so simply pleading not-guilty isn't enough, Zimmerman would have to show how he meets the elements of a self-defense. The State would have to prove the elements of the charge and then Zimmerman could prove how the actions fall under self-defense.

 

[Captain Adverse]

Nonsense! What evidence do you have that GZ ever used the gun to initiate aggression? I carry a concealed rape tool and have approached many women - is that attemped rape? Simply possessing a gun is not an act of aggression.

Look, how did the kid get shot? As far as I am aware, Zimmerman was the only person in the encounter who had a weapon. He was an adult male facing an unarmed teenaged boy. Even had the boy started a fight with his bare hands it would be hard to show Zimmerman was facing immediate death or serious bodily harm. Some harm yes, which would entitle him to use reasonable force to defend himself, but deadly force? On what grounds?

 

[What if...?]

I'm not an attorney and don't play one on the board, and I also purposely waited until the trial began to pay attention. But this much has been established in testimony: Zimmerman was on the bottom while Martin was on top. What does this say to an ordinary person?

I think there is a real possibility that the struggle was over the gun most or all of the conflict.

Right from the beginning.

Which raises the prickly question.

When does the person trying to shoot me get to shoot me for not letting them shoot me?

 

[ttwtt78640]

Look, how did the kid get shot? As far as I am aware, Zimmerman was the only person in the encounter who had a weapon. He was an adult male facing an unarmed teenaged boy. Even had the boy started a fight with his bare hands it would be hard to show Zimmerman was facing immediate death or serious bodily harm. Some harm yes, which would entitle him to use reasonable force to defend himself, but deadly force? On what grounds?

Aggravated assault and battery is a forcible felony - that is grounds for the use of deadly force in Florida.

776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

 

[Dapper Andy]

It is a criminal trial. The state has charged him with second degree murder. It is now their responsibility to prove that charge. Zimmerman is under no obligation to prove anything.

I suppose he doesn't have to actually do anything but I would certainly want to be proactive if I were on trial for murder.

He's not under any legal obligation to prove he acted in self defense but in doing so he would be proving he's innocent of murder charges.

 

[Dapper Andy]

Normally you would be correct. But he is claiming he acted in self-defense, which would excuse him from facing charges. He must show that is the case in order to have the charges dismissed.

It's entirely up to the state to prove he's guilty.

He and his lawyer can stare into space for the duration of the trial and it won't make an ounce of difference if the state fails to prove their charges.

 

[What if...?]

Wrong. Under Florida law (unlike Texas) even if you were the initial aggressor you retain the right to use deadly force under certain circumstances.



Statutes & Constitution :View Statutes : Online Sunshine

But when it devolves to a struggle over the aggressors gun, at what point is one certain the aggressor is withdrawing in good faith?

As a theoretical legal question.

If M believed the whole time he was trying to keep Z from shooting him, how does he know Z isn't going to just shoot him the second he lets him go?

I'm convinced it went down this way, more or less. But there is no evidence of it. There's no evidence AGAINST it either except the testimony of the individual with the most to gain by keeping that part quiet.

But just legally in FL.

When does an armed aggressors willingness to retreat become credibly "in good faith"?

 

[Aderleth]

It is a criminal trial. The state has charged him with second degree murder. It is now their responsibility to prove that charge. Zimmerman is under no obligation to prove anything.

Depends (and to be clear, I absolutely do not give a **** about this case one way or another). In most jurisdictions, the defendant bears the burden of proving an affirmative defense (which is what self-defense is). However, Florida has weird rules about that sort of thing, so in this case my understanding is that once Zimmerman's asserted the defense (i.e. asserted evidence consistent with self-defense), there's a rebuttable presumption that it's accurate, and the jury has to find beyond a reasonable doubt that Zimmerman did NOT act in self defense in order to convict. So he does have to prove something, just not very much.

Here's the first article I ran across that discusses this:

Zimmerman's Low Burden of Proof on the Issue of Self Defense - Akron Law Cafe - Ohio

 

[What if...?]

Umm nope. From what I read you misunderstand the law:

776.012Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
 (1)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; or
 (2)Under those circumstances permitted pursuant to s. 776.013.(defense of home).

 776.041Use 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.

If Zimmerman was the aggressor (initiator of the assault) the victim becomes the defender. Zimmerman loses the claim of self-defense UNLESS the defender responds with force which is likely to cause the original aggressor (Zimmerman) death or great bodily harm. There is no evidence the victim of Zimmermans assault was armed (right?), whereas Zimmerman was armed with a gun. 776.041(2)(a)

Zimmerman, as the aggressor was (according to this section you quoted) also OBLIGATED to try to break off the attack and make plain he was attempting to so that the original defender then becomes the assailant. There is no evidence Zimmerman tried to break off his initial attack. 776.041(2)(b)

Based upon your own citation, Zimmerman as the initial aggressor failed to try to withdraw, and was not facing imminent threat of death or serious bodily harm. Therefore, as the initial aggressor he cannot claim self-defense.

He WAS screaming for help.

But if he was trying to get his gun TOO, what then?

 

[Dapper Andy]

As a resident armchair lawyer north of the border, I can give you the Canadian perspective which may or may not match some states, perhaps not Florida, but it's a consistent theme here in Canada - if a person is able to extricate themselves from a dangerous situation, without resorting to violent measures, that person has an obligation under the law to do so - initiation of violence is not seen as self-defense. If you pick a fight with someone and you're losing, you cannot shoot the guy and expect to have a self-defense plea hold water. That may, in the Zimmerman case, be why the notion that he was told not to follow Martin is a key element - had he not followed Martin, he would not have been in personal danger and Martin would not have been killed.

That can't possibly be true.

Everyone is talking about initiation but I just can't fathom a world where the level of initiation doesn't matter.

Zimmerman's decision to follow Martin might have kicked off a series of events that ultimately lead to a dead body but that isn't illegal or malicious. I mean, do I lose my right to defend myself if I hear a smash, walk down stairs, and see a man breaking into my home? I suppose any altercation would be avoided completely if I run straight out the house if I hear a smash but it just seems unreasonable to me.

 

[Captain Adverse]

Aggravated assault and battery is a forcible felony - that is grounds for the use of deadly force in Florida.

This could have been true in this case except for the other part of the same law you ignored...

776.013(3) 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.

In Zimmerman's case he was NOT engaged in a lawful activity, the Sheriff Department had pointed out that no NW member is allowed to carry a gun or even follow a suspicious looking person. All the brochures distributed in Florida clearly point out (in writing with pictures) that the only duty of a NW volunteer (even the captain) is to watch & report.

On the other hand, the teenager was simply minding his own business walking down a street. Of course he was black which apparently is sufficient grounds to suspect he is a threat, at least to Zimmerman. He girds himself with a gun, then approaches the kid to ask him his business, i.e. he did NOT watch and report, he accosted another civilian who legally need not even respond, since Zimmerman was not an officer of the law. Therefore, Zimmerman initiated the confrontation, was not acting within the law when doing so, and so transfers the Stand Your Ground defense to the teenager who was doing NOTHING wrong.

 

[sharon]

It's entirely up to the state to prove he's guilty.

He and his lawyer can stare into space for the duration of the trial and it won't make an ounce of difference if the state fails to prove their charges.

Nope.. George has to put on an Affirmative Defense.. although the standard is lower. George isn't out of the woods.

 

[ttwtt78640]

But when it devolves to a struggle over the aggressors gun, at what point is one certain the aggressor is withdrawing in good faith?

As a theoretical legal question.

If M believed the whole time he was trying to keep Z from shooting him, how does he know Z isn't going to just shoot him the second he lets him go?

I'm convinced it went down this way, more or less. But there is no evidence of it. There's no evidence AGAINST it either except the testimony of the individual with the most to gain by keeping that part quiet.

But just legally in FL.

When does an armed aggressors willingness to retreat become credibly "in good faith"?

This is exactly why Texas prohibits the use of deady force by the initial aggressor.

IF TM believed GZ to be armed the whole time then TM certainly did all in his power not to get away from GZ or to call for help.

 

[CanadaJohn]

That can't possibly be true.

Everyone is talking about initiation but I just can't fathom a world where the level of initiation doesn't matter.

Zimmerman's decision to follow Martin might have kicked off a series of events that ultimately lead to a dead body but that isn't illegal or malicious. I mean, do I lose my right to defend myself if I hear a smash, walk down stairs, and see a man breaking into my home? I suppose any altercation would be avoided completely if I run straight out the house if I hear a smash but it just seems unreasonable to me.

There is a great deal of difference between being in your home and finding someone has broken in and walking around a neighborhood and seeing a stranger lurking and pursuing that stranger. In the first situation, your property and the sanctity of your home has been invaded and you have every right to defend it. In the second situation, unless you are a police officer, you would be expected to contact the authorities if you suspect someone is up to no good and you are not permitted to take the law into your own hands and claim self defense.

 

[Excon]

In Zimmerman's case he was NOT engaged in a lawful activity, the Sheriff Department had pointed out that no NW member is allowed to carry a gun or even follow a suspicious looking person. All the brochures distributed in Florida clearly point out (in writing with pictures) that the only duty of a NW volunteer (even the captain) is to watch & report.

Wrong. His actions were not illegal. He was not prohibited from being armed by any law, not even while performing NW duties.

 

[sharon]

This is exactly why Texas prohibits the use of deady force by the initial aggressor.

IF TM believed GZ to be armed the whole time thaen TM certainly did all in his power not to get away from GZ or to call for help.

Trayvon didn't have time to call for help.

Trayvon didn't want GZ to know where he lived... just like George didn't want to give out his home address to NEN.

George also seemed to believe that when TM held the phone clipped to his jeans as a weapon was a gun.. Check your racism.

George's crime is gross stupidity.

 

[Dapper Andy]

But when it devolves to a struggle over the aggressors gun, at what point is one certain the aggressor is withdrawing in good faith?

As a theoretical legal question.

If M believed the whole time he was trying to keep Z from shooting him, how does he know Z isn't going to just shoot him the second he lets him go?

I'm convinced it went down this way, more or less. But there is no evidence of it. There's no evidence AGAINST it either except the testimony of the individual with the most to gain by keeping that part quiet.

But just legally in FL.

When does an armed aggressors willingness to retreat become credibly "in good faith"?

I'm not even certain who the aggressor is when it devolves to a struggle over a gun.

 

[What if...?]

Well, I don't know where you studied law, but my understanding is if one person has a gun, and the other person does not, then the person without the gun is facing imminent death or serious bodily harm, while the person with the gun...is not.

Point two: If the person with the GUN (who is NOT a police officer) approaches a person without a gun, that unarmed person having a reasonable presumption of imminent death or serious bodily harm has a right to act in his own self-defense.

Point three: If the intial aggressor (the guy with the GUN) fails to announce his intention to retreat, and fails to try to retreat once the person without the gun starts to defend himself, he loses the right to claim self-defense.

Point four: If the initial aggressor (the guy with the GUN) then shoots and kills the the guy without the gun, then he is correctly answerable to a charge of homicide without the right to claim self-defense.

This is all in conformance with the quoted law. Where are you confused by my answer?

The question here is when and how did the gun come into play.

Just "reaching for his phone" could lead a reasonable person to believe they in danger of imminent harm BASED ON Zs previous behavior. Its not threatening in a brightly lit place for a stranger to do this. It IS in the dark when done by a person that has followed you in a car and then on foot. That is not normal.

 

[ecofarm]

The question here is when and how did the gun come into play.

Just "reaching for his phone" could lead a reasonable person to believe they in danger of imminent harm BASED ON Zs previous behavior. Its not threatening in a brightly lit place for a stranger to do this. It IS in the dark when done by a person that has followed you in a car and then on foot. That is not normal.

One cannot attack someone based on paranoid fantasy made worse by putting oneself in a dark place and failing to call the police.

 

[ttwtt78640]

This could have been true in this case except for the other part of the same law you ignored...

776.013(3) 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.

In Zimmerman's case he was NOT engaged in a lawful activity, the Sheriff Department had pointed out that no NW member is allowed to carry a gun or even follow a suspicious looking person. All the brochures distributed in Florida clearly point out (in writing with pictures) that the only duty of a NW volunteer (even the captain) is to watch & report.

On the other hand, the teenager was simply minding his own business walking down a street. Of course he was black which apparently is sufficient grounds to suspect he is a threat, at least to Zimmerman. He girds himself with a gun, then approaches the kid to ask him his business, i.e. he did NOT watch and report, he accosted another civilian who legally need not even respond, since Zimmerman was not an officer of the law. Therefore, Zimmerman initiated the confrontation, was not acting within the law when doing so, and so transfers the Stand Your Ground defense to the teenager who was doing NOTHING wrong.

Where is your evidence that GZ "attacked" TM? GZ was acting well beyond what I would call just being a concerned citizen, and certainly placed himself in a bad situation, but that does not constitute proof of an attack. Accosted is not the same as attacked. Do you honestly intend to assert that if someone questions the behavior of another person in Florida that is a confrontation and thus entitles the one being questioned to kill them "in self defense"?

 

[sharon]

Where is your evidence that GZ "attacked" TM? GZ was acting well beyond what I would call just being a concerned citizen, and certainly placed himself in a bad situation, but that does not constitute proof of an attack. Accosted is not the same as attacked. Do you honestly intend to assert that if someone questions the behavior of another person in Florida that is a confrontation and thgus entitles the one being questioned to kill them?

Trayvon asked.. why are you following me.. George was too stupid to answer.. or too caught up in his cop fantasy... so he shot the boy.

 

[Captain Adverse]

Wrong. His actions were not illegal. He was not prohibited from being armed by any law, not even while performing NW duties.

Really, so you can just walk up to me, stop me from continuing on my way to demand my business, continue to prevent me from leaving without evidence of any crime being committed? Unless you are a police officer doing a legal stop, you are commiting assault because you are presenting a threat of bodily harm by telling me I can't leave and physically acting to prevent my freedom of movement. It is not Battery, because you have not actually touched me yet.

The issue is not the carrying of the gun, which he is authorized to do as long as he has a CCW permit. The issue is that he has no legal authority to impede the kids movements much less stop to question him. It wasn't even his property so he could claim the kid was trespassing. The sidewalk is public access.

 

[Excon]

Trayvon didn't have time to call for help.

Yes he did sharon. But he instead inexplicable chose to talk to a DumDum.

Trayvon didn't want GZ to know where he lived...

Is that why he made it home and chose to come back. Strange.

George also seemed to believe that when TM held the phone clipped to his jeans as a weapon was a gun..

Wrong.
It was when ™ was reaching into his waistband.

 

[Gaius46]

Come to think of it, all lawyers operate out of armchairs. Oh well...

The question is, does a person lose the right to self defense if he initiates a violent encounter?

The prosecution's tac seems to be to try to paint Z as the aggressor who started the fight between himself and M.

In other words, if in the process of melee combat one combatant gains lethal advantage over the other, and the other person fears for his or her life, is that person only allowed to respond with deadly force if he or she had not initiated the encounter in the first place?

I don't think so. As I understand it, if at some point either combatant genuinely fears that he or she is going to die at the hands of his opponent then he or she has the right to use whatever means necessary to neutralize that threat.

This means that, apropos the Z-M case, none of the stuff that people are debating -- whether it was Z or M who started it; whether Z was a racist who was profiling; whether Z slapped his girlfriend around; etc. -- is relevant. The only thing that's relevant is whether M was on top of Z beating on him and Z could have reasonably feared for his life, Z pulled out the gun but M would not relent or went for the gun.

If, on the other hand, Z pulled out a gun and M immediately stopped and/or retreated but Z shot him then Z is guilty of murder.

What say you? Does the prosecution's approach make any sense?

The initial aggressor cannot claim self defense. That is codified in NYS self defense law and I'm reasonably sure the same applies in Florida.