Author Topic: Immunity Hearing: Stand Your Ground and/or Self-Defense  (Read 25791 times)

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Offline nomatter_nevermind

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #45 on: August 16, 2012, 08:39:09 PM »
It is inconceivable to me that DeeDee will make an appearance in court. 

I think she will.




Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #46 on: August 16, 2012, 08:51:17 PM »
It does mean "unless (a) or (b)".  It does not mean "unless .012, .013, .031."  IOW, it means that the use of force is not justified [to one who provokes], unless (a) or (b).  The criteria in (a) and (b) are more restrictive, in a sense, than the criteria in .012, .013, and .031.  One who provokes is not entitled to "stand ground and use force," but must either try to extricate or capitulate.  IOW, a person who provokes must attempt to extricate, or must de-escalate the use of force - and THAT just to obtain the right to use force in self defense. A person who provokes the use of force is not justified in the use of force in self defense, unless (a) or (b), and if (a) or (b), then their use of force in self defense is justified.

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776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force,

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776.012- Use of force in defense of person

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.

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776.041 Use of force by aggressor.—T

The justification described in the preceding sections of this chapter is not available to a person who:

(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.


Offline JW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #47 on: August 16, 2012, 08:56:59 PM »
If you check the thread on unreleased discovery material, it seems that Bernie de la Rionda and friends had another stab at Witness 2 in an interview that has not been released yet.  That is the one who thought, at one time, she saw shadows running.  Bernie mentioned this again at the second bond hearing as some sort of proof that Zimmerman chased Martin.  I know it sounds ridiculous but that may be, along with Zimmerman's testimony, the entire prosecution case.  It is inconceivable to me that DeeDee will make an appearance in court.  They can't drop the case until after the Republican Convention in Tampa.  If they do it after that, riots might help the Republicans in November.

I have been looking for the thread on unreleased discovery material and haven't found it. Do you have a link?

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #48 on: August 16, 2012, 09:10:14 PM »
It does mean "unless (a) or (b)".  It does not mean "unless .012, .013, .031."  IOW, it means that the use of force is not justified [to one who provokes], unless (a) or (b).  The criteria in (a) and (b) are more restrictive, in a sense, than the criteria in .012, .013, and .031.  One who provokes is not entitled to "stand ground and use force," but must either try to extricate or capitulate.  IOW, a person who provokes must attempt to extricate, or must de-escalate the use of force - and THAT just to obtain the right to use force in self defense.

A person who provokes the use of force is not justified in the use of force in self defense, unless (a) or (b), and if (a) or (b), then their use of force in self defense is justified.

I think I see it now.  .041 means: Self defense doesn't apply if (1) or (2) holds unless (a) or (b) holds.  The reference to earlier sections of the chapter was just put in to confuse people like me.  >:(

So does the immunity hearing immediately end, with Zimmerman being denied immunity, if the judge finds it more likely than not that either (1) or (2) describes Zimmerman on Feb. 26?
Quote
(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


Offline nomatter_nevermind

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #49 on: August 16, 2012, 09:18:15 PM »
I have been looking for the thread on unreleased discovery material and haven't found it. Do you have a link?

Missing Discovery

It's under Police Investigation.

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #50 on: August 16, 2012, 09:25:02 PM »
I have been looking for the thread on unreleased discovery material and haven't found it. Do you have a link?

This is it.  The information about Witness 2 was in the opening article by Jeralyn:

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2. Audio recordings of 3/26 interview by state's attorney investigator O'Steen and John Guy of W1 or W2 (one of the sisters who saw a glance of one or two people running).  Witness is now saying she saw people running left to right (which from her house would be south to north.) De la Rionda keeps referring to this, yet the only audio statements provided are those by SPD and FDLE (3/1, 3/9, 3/20)  and in the 3/20 interviews they retracted this. What happened in one week to make one of them change their mind, and why don't we have the actual interview? (p. 29 of 284 page discovery)

Offline cboldt

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #51 on: August 16, 2012, 09:36:50 PM »
I think I see it now.  .041 means: Self defense doesn't apply if (1) or (2) holds unless (a) or (b) holds.  The reference to earlier sections of the chapter was just put in to confuse people like me.  >:(

So does the immunity hearing immediately end, with Zimmerman being denied immunity, if the judge finds it more likely than not that either (1) or (2) describes Zimmerman on Feb. 26?

The jury instruction is much more clear than the statute.  It doesn't refer to "earlier sections" as what is being denied as basis for justified use of force.  It says "However, the use of deadly force is not justifiable if you find: ... (Defendant) initially provoked the use of force against [himself] [herself], unless: [(a) or (b)]."  I assume the "deadly" word would be removed if the person is asserting self defense for use of non-deadly force.  Anyway, by not referring to the language of .012, .013 or .031, the jury instruction operates so that those sections aren't available to a person who provoked the use of force against himself.  BUT, self defense is still available under those (a) or (b) exceptions - to save your own life, or after an unavailing retreat/capitulation.

I think the answer to your question is that is Zimmerman is found to have provoked the use of force, he's denied immunity, because he's then under .041, and if he's under .041, 776.032 immunity is not available.  And yes, the standard of proof is "preponderance," that is, "more likely than not."  This standard of proof applies for all elements of the defense or negation of the defense, at a pretrial hearing on the merits.

The hearing doesn't end - it continues until all the evidence is in.  Then the judge retires to compose his opinion.  If he finds it more likely than not that Zimmerman provoked the use of force against himself, then there is no right to 776.032 immunity.

Offline JW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #52 on: August 16, 2012, 09:51:09 PM »


Thanks for the link. Looks like the investigators went back and re-interviewed other witnesses as well. Don't know what that may mean.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #53 on: August 16, 2012, 09:56:53 PM »
Please keep this thread to the immunity hearing, not witnesses or missing discovery. Thanks. I'm going to delete those comments.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #54 on: August 16, 2012, 10:06:02 PM »
I think the answer to your question is that is Zimmerman is found to have provoked the use of force, he's denied immunity, because he's then under .041, and if he's under .041, 776.032 immunity is not available.   If he finds it more likely than not that Zimmerman provoked the use of force against himself, then there is no right to 776.032 immunity.

I disagree. Zimmerman can provoke the use of force and still be justified in his use of force under 776.012, which makes him eligible for immunity under 776.032.  All he has to do is be justified under 776.012. If he had no lesser means at his disposal to stop TM's attack, and he could not extricate himself to stop the attack, and  he's the aggressor, he's justified under 776.012 . That's the argument O'Mara is making and I think he's right.

The only thing an aggressor can't claim is immunity under Stand Your Ground, 776.013. GZ doesn't need it. 776.041 doesn't preclude an aggressor being justified  under 776.012 provided he meets one of the two criteria and Zimmerman does, he couldn't get away and had no lesser means to stop the attack. Thus, he fits under 776.12 and is immune under 776.032.


Offline FromBelow

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #55 on: August 16, 2012, 10:16:34 PM »
That's the argument O'Mara is making and I think he's right.

I'm thinking he might have just blindsided the prosecution.

Offline cboldt

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #56 on: August 16, 2012, 10:32:51 PM »
I disagree. Zimmerman can provoke the use of force and still be justified in his use of force under 776.012, which makes him eligible for immunity under 776.032.  All he has to do is be justified under 776.012. If he had no lesser means at his disposal to stop TM's attack, and he could not extricate himself to stop the attack, and  he's the aggressor, he's justified under 776.012 . That's the argument O'Mara is making and I think he's right.

The only thing an aggressor can't claim is immunity under Stand Your Ground, 776.013. GZ doesn't need it. 776.041 doesn't preclude an aggressor being justified  under 776.012 provided he meets one of the two criteria and Zimmerman does, he couldn't get away and had no lesser means to stop the attack. Thus, he fits under 776.12 and is immune under 776.032.

We disagree then.  I don't think 776.041(2)(a) or (b) loop back to 776.012.  If one is an aggressor using force in self defense, one is in 776.041.  One's use of force can be justified within the language of 776.041, which is not the same terms allowed in 776.012.

I don't think O'Mara is arguing that Zimmerman was the aggressor.

Offline FromBelow

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #57 on: August 16, 2012, 10:39:55 PM »
We disagree then.  I don't think 776.041(2)(a) or (b) loop back to 776.012.  If one is an aggressor using force in self defense, one is in 776.041.  One's use of force can be justified within the language of 776.041, which is not the same terms allowed in 776.012.

I don't think O'Mara is arguing that Zimmerman was the aggressor.

IANAL, but doesn't .041 basically say:

Quote
Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(snip)
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;

Isn't .041 negated if MOM can show that (a) is true? Allowing for .012 to still apply?

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #58 on: August 16, 2012, 10:47:25 PM »
I don't think O'Mara is arguing that Zimmerman was the aggressor.

Of course he isn't. We're talking about anticipated arguments of the state.

Do you have any legal support for your position? I think it is contrary to the wording of the statutes. An aggressor can clearly still fit under 776.012. And someone who fits under 776.012 is entitled to immunity under 776.032.  Only an aggressor who doesn't fall within (a) or (b) of 776.041 is precluded from using deadly force. If GZ is not the aggressor, or if he is, but he had no lesser force at his disposal or couldn't otherwise extricate himself to avoid the danger he perceived from Trayvon's attack, he's immune under 776.032.

« Last Edit: August 16, 2012, 10:52:39 PM by TalkLeft »

Offline FromBelow

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #59 on: August 16, 2012, 10:56:49 PM »
It's not that 776.041 is negated, it's that it doesn't preclude him from being justified under 776.012 if he meets one of the two criteria in 776.041.

Bad phrasing on my part, but I think I understand. I meant the restrictions that .041 places on a defendant using the preceding sections don't apply (negated) if (a) can be show to be true. Sorry, not a lawyer.

 

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