Author Topic: Immunity Hearing: Stand Your Ground and/or Self-Defense  (Read 23927 times)

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Offline TalkLeft

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Immunity Hearing: Stand Your Ground and/or Self-Defense
« on: August 14, 2012, 09:20:25 PM »
Now that Mark O'Mara has made clear he will be moving for an immunity hearing under traditional self-defense, let's have a thread discussing traditional self-defense vs. stand your ground, what a hearing entails and which one is a better or easier fit for George Zimmerman.

If you've already posted your thoughts or questions in another thread but want to bring them here, it's okay to repost.

The statutes:

776.012  Justiifable Use of Force

776.013  Stand Your Ground

776.032  Immunity from criminal prosecution and civil action (for both)

And for those pondering the aggressor issue:

776.041  Use of Force by Aggressor

Offline IrishGerard

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #1 on: August 14, 2012, 11:45:49 PM »
Re-posted from TL

I know this has been discussed before but it's my understanding that 776.013 is the Home Invasion counterpart to 776.012 (probably a moot point now that MO'M will be using .012)

They seem to be otherwise redundant?
They both include the 'no duty to retreat' (StandYourGround) language.

Also, the news media seems to be conflating SYG with the immunity hearing. A lot of confusion out there.
Fox News - http://tinyurl.com/9b36qwz


Offline DebFrmHell

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #2 on: August 15, 2012, 12:21:48 AM »
Re-posted from TL

I know this has been discussed before but it's my understanding that 776.013 is the Home Invasion counterpart to 776.012 (probably a moot point now that MO'M will be using .012)

They seem to be otherwise redundant?
They both include the 'no duty to retreat' (StandYourGround) language.

Also, the news media seems to be conflating SYG with the immunity hearing. A lot of confusion out there.
Fox News - http://tinyurl.com/9b36qwz

I know what you mean.  Every time I think I have a handle on it, I don't.  He refers to 776.032 but I thought that was purely a SYG issue.  Is the Self-Defense with immunity under the same clause?  I am no longer sure.

Offline AJ

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #3 on: August 15, 2012, 04:44:59 AM »
Also, the news media seems to be conflating SYG with the immunity hearing. A lot of confusion out there.
Fox News - http://tinyurl.com/9b36qwz

I just started a topic about individuals in the media getting it wrong (I've confirmed that they have it wrong). I'm not sure if NBC/MSNBC/CNN/etc have opined on it, but I did mention FNC's analysts. That thread is here: http://forums.talkleft.com/index.php/topic,2159.msg101301.html#msg101301 And I do apologize, I didn't see your comment here until after I had made that thread.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #4 on: August 15, 2012, 07:18:48 AM »
I just started a topic about individuals in the media getting it wrong (I've confirmed that they have it wrong). I'm not sure if NBC/MSNBC/CNN/etc have opined on it, but I did mention FNC's analysts. That thread is here: http://forums.talkleft.com/index.php/topic,2159.msg101301.html#msg101301 And I do apologize, I didn't see your comment here until after I had made that thread.

That's  fine, your thread is about the legal anlaysts and media. It's fine for it to have its own thread.

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #5 on: August 15, 2012, 09:06:51 AM »
I am reposting this from TL.  The prosecution could conceivably make this argument in order to get 776.041 to be the statute used at the immunity hearing instead of 776.012.  It still confuses me as to why that would hurt Zimmerman's chances for being granted both criminal and civil immunity.

Could reaching for his cellphone make Zimmerman the "aggressor"? Martin could have interpreted it as an imminent physical threat since he didn't know what Zimmerman was reaching for.  It seems to satisfy the definition, based on 776.012, that Jeralyn lays out.

Quote
Another point you miss: To be the aggressor, Zimmerman had to have contemporaneously provoked Trayvon's use of force  against him. For Zimmerman to have provoked Trayvon's use of force against him, justifying TM's use of force against GZ,  Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman.

        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.

Offline nomatter_nevermind

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #6 on: August 15, 2012, 09:29:12 AM »

If I'm walking down a busy street, am I justified in attacking anyone I see putting a hand in his pocket?

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #7 on: August 15, 2012, 09:43:05 AM »
If I'm walking down a busy street, am I justified in attacking anyone I see putting a hand in his pocket?

Not anyone, but sometimes the actions, including body language, of the other person might justify it.  This all goes back to the question, I keep repeating, of what standard of proof is needed to decide which statute should apply.

Offline Cylinder

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #8 on: August 15, 2012, 09:58:31 AM »
This all goes back to the question, I keep repeating, of what standard of proof is needed to decide which statute should apply.

From my layperson understanding, the standard of evidence to argue to a jury that a certain statute applies is some evidence. For the jury, the standard would be normal - beyond a reasonable doubt - that, for instance, Zimmerman was the aggressor and that he had a avenue of retreat or that he was not in reasonable fear of death or great bodily injury.

In an immunity hearing, the burden would be perponderance of evidence for Zimmerman to show he was not the aggressor and that he had reasonable fear.

Offline IrishGerard

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #9 on: August 15, 2012, 10:33:03 AM »
Could reaching for his cellphone make Zimmerman the "aggressor"? Martin could have interpreted it as an imminent physical threat since he didn't know what Zimmerman was reaching for.  It seems to satisfy the definition, based on 776.012, that Jeralyn lays out.

It's my interpretation that 776.041 (2) (b) presumes provocation equal 'physical contact'.

(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.

Offline leftwig

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #10 on: August 15, 2012, 11:12:53 AM »
Not anyone, but sometimes the actions, including body language, of the other person might justify it.  This all goes back to the question, I keep repeating, of what standard of proof is needed to decide which statute should apply.

If both parties were voluntarily at the 'T', I don't see how reaching for a cell phone would constitute an aggressive act.  IT certainly wouldn't be an illegal act, so in regards to the SYG law, I'd think he would be under its protection (anyone who is in a place they have a right to be and not engaged in any illegal activity).  Also, we are getting the testimony about reaching for the phone from GZ who also states that he tells TM he doesn't have a problem and is trying not to confront TM.   If you take hist statements around the time he reached for his cell phone together, I don't see how it could be construed to be an act that makes him the primary aggressor.

Offline cboldt

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #11 on: August 15, 2012, 11:41:14 AM »
It's my interpretation that 776.041 (2) (b) presumes provocation equal 'physical contact'.

(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.

Provocation (sufficient to justify the other person resorting to the use of force) need not include physical contact. If two people are in a verbal argument, and anger is present, and one person moves in a way that a reasonable person would take as preparation to use force, counterforce is justified.  Another scenario is a person throwing things at you, and yet another is a reasonable belief that a person is reaching for a gun or knife.

Nearly all people have a pretty good sense of what being "provoked enough to be justified in using force" consists of.  It's those situations where you can use violence, and won't get in trouble for it.

Serino suggested to Zimmerman that Zimmerman's pocket reach might have set Martin off on his attack.  I don't recall if Serino offered an opinion about whether the attack was justified.  IIRC, Serino was looking for some reason beyond "just for kicks" that would explain Martin throwing the first punch.  I don't feel any urge to probe that, as Martin spend a substantial length of time restraining Zimmerman in a physical predicament.  That is, the issue goes beyond "first punch" and into a minute of physical superiority.  Whatever the reason (for physical attack) was, it was reason enough for both the initial punch and the minute of restraint.  Doesn't seem like the reason would be related to whatever Zimmerman was reaching in his pocket for.

That section of statute you cite allows an initial aggressor to "back off" the threat or use of force (which, in the universe of scenarios might be a non-contact action, for example a "Mexican standoff") and regain the ability to have legal justification for (later) use of force in self defense.

Offline nomatter_nevermind

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Serino's Opinion
« Reply #12 on: August 15, 2012, 12:23:50 PM »
I don't recall if Serino offered an opinion about whether the attack was justified. 

2/29-1, 21:06-21
Quote
Problem being, is that, what if his, in his mind's eye, which I can't get into because he's passed, that he perceived you as a threat? OK? He perceives you as a threat, he has every right to go and defend himself, especially when you reach into your pocket to grab a cell phone.

Offline annoyedbeyond

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Re: Serino's Opinion
« Reply #13 on: August 15, 2012, 12:32:22 PM »
2/29-1, 21:06-21

Are you mixing opinion with interrogation tactic?

Which is a question, not a statement.


Offline cboldt

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Re: Serino's Opinion
« Reply #14 on: August 15, 2012, 12:40:31 PM »
Thanks for the Serino remark.  I don't see that as opining that Martin would be justified in throwing the first punch, because Serino starts with an "if" conditional.  "If" Martin perceives Zimmerman as a threat (and Serino doesn't opine whether that perception would be justified, that is, whether or not a reasonable person in Martin's shoes would perceive Zimmerman as a threat.  If Martin approaches Zimmerman in order to ask "Do you have a problem?", then Martin does not perceive Zimmerman as a physical threat.

Otherwise, Serino is making an approximate restatement of the law.  A person who reasonably apprehends an unlawful physical threat is justified in using force in self defense.  The amount of force is limited to that necessary to stop the threat.

Serino does make a valid point.  In some situations, reaching into a pocket is sufficient action to justify the use of force.  There are a few cases of people in heated argument, and a reach into the pocket is taken (or mistaken) as going for a weapon.

 

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