Author Topic: Immunity Hearing: Stand Your Ground and/or Self-Defense  (Read 23588 times)

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Offline cboldt

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #60 on: August 16, 2012, 11:20:40 PM »
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.

As for the argument that Zimmerman was the aggressor, that's the only way to get Zimmerman under 776.041 in the first place.  If O'Mara is arguing that Zimmerman was not the aggressor, then I agree that 776.012 applies.

The cases I've read on the interplay between 776.041(2) and 776.012 (leading to 776.032 immunity) have all denied immunity, but do tend to adopt your position on the interplay, for the sake of argument.  I'm not finding the case that I have in mind, but parts of it can be read the other way - that being in 776.041 precludes immunity even if the (a) or (b) exception is found.  Ahhh, here it is, State v. Dooley Denial of 776.032 Immunity (May 11, 2012).

But, the plain language of 776.041 is that the justification is found if the conditions are met, that is, that the use of force is justified.  It does not say that immunity also attaches, just that at some level or at t turn of events in a fight, one has a right to use force in self defense.  776.041 contains all of the elements necessary to find the use of force justified for an aggressor.,  There is no need to look outside of it.  The immunity statute, 776.032, provides immunity from arrest, etc. to a person who meets the requirements of 776.012, 776.013 or 776.031.  It could, but does not mention a grant of immunity to a person who meets the justified use of force per 776.041.

I think that is deliberate, and necessary.  Assume a fight with no deadly force, but plenty of damages on both sides.  Assume one party is the aggressor, but broke off, but his opponent came back for more.  Both sides have claims against each other.  The law would not give the aggressor immunity from arrest, or from civil action, because the aggressor in fact committed battery, and caused damage.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #61 on: August 16, 2012, 11:26:06 PM »
Isn't .041 negated if MOM can show that (a) is true? Allowing for .012 to still apply?

Yes. 776.041 is a statutory exception to 776.012. If  GZ establishes at an immunity hearing by a preponderance of the evidence that either  (a) or (b) apply,  he has not surrendered his right to claim self defense and 776.041 doesn't operate as an exception to preclude him from falling within 776.012. So long as he falls within 776.012, he can claim immunity under 776.032.

Darling v. State, 2012

Quote
Justification for using deadly force in self defense, which includes the "stand your ground" defense, does not apply to a person who provokes the attack. § 776.041(2), Fla. Stat. (2007). There are only two exceptions to this rule: (1) where there is no means of escape other than the use of deadly force, or (2) if the provoking person withdraws from physical contact or unequivocally indicates his desire to withdraw from the confrontation and the alleged victim continues or resumes the use of force. Id. Moreover, the "stand your ground" law specifically requires that the person invoking the defense "not [be] engaged in an unlawful activity."

Offline cboldt

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #62 on: August 16, 2012, 11:36:23 PM »
Justification for using deadly force in self defense, which includes the "stand your ground" defense, does not apply to a person who provokes the attack. § 776.041(2), Fla. Stat. (2007). There are only two exceptions to this rule ...

Darling v. State, 2012

Just to repeat, reiterate and reinforce my point of view, I agree that the use of force is justified under those circumstances.  But 1) those circumstances are defined in 776.041, and 2) there exist situations where the use of force is justified, but immunity is not justified.  In a case where one party to the fight is dead, the divergence between justified use of force and immunity is hard to distinguish - but just think about damages the aggressor causes (and the agressor/person who provokes is by definition committing a criminal act) before deciding to call off the fight, only to be denied the attempt to break off.  he is justified in defending himself, but that doesn't mean he has no liability for the damages he created by being the aggressor in the first place.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #63 on: August 16, 2012, 11:39:58 PM »

The cases I've read on the interplay between 776.041(2) and 776.012 (leading to 776.032 immunity) have all denied immunity, but do tend to adopt your position on the interplay, for the sake of argument.  I'm not finding the case that I have in mind, but parts of it can be read the other way - that being in 776.041 precludes immunity even if the (a) or (b) exception is found.  Ahhh, here it is, State v. Dooley Denial of 776.032 Immunity (May 11, 2012).

CBoldt, read Dooley again. It says immunity would apply if he established one of the exceptions and fit within 776.012. Dooley did neither:

Quote
However, a defendant is not entitled to rely on § 776.012 or § 776.013(3) if the defendant initially provokes the use of force against himself or herself, subject to two exceptions. Fla. Stat. § 776.041 (2011). First, an initial aggressor can be justified in using force if the force exercised by the other party is so great that the defendant fears imminent death or great bodily harm and has exhausted every reasonable means of escape. Fla. Stat. § 776.041(2)(a). Second, an initial aggressor can rely on the statutes if he or she withdraws from physical contact and indicates the withdrawal to the other party who continues the use of force against him or her. Fla. Stat. § 776.041(2)(b). As such, in addition to having to satisfy either § 776.012 or § 776.013(3), a defendant who initially provoked the use of force against himself or herself would also have to prove that he or she satisfied one of these exceptions to be entitled to immunity.

Dooley's immunity wasn't granted because failed to prove by a preponderance he fit within the 776.041 exceptions.

Quote
Defendant has failed to prove by a preponderance of the evidence that he is entitled to immunity from prosecution. First, the Court finds that Defendant has failed to prove that he met the requirements of either § 776.012 or § 776.013(3). Second, the Court finds that even if Defendant had satisfied either statute, Defendant would not be entitled to immunity because he failed to prove that he is not barred from relying on the immunity statutes pursuant to § 776.041.

The judge said 776.012 didn't apply because the killing occurred during a struggle for the weapon and not during an attack on Defendant Dooley. " Because Defendant was not under attack, but was struggling for the weapon, there was no reasonable belief that deadly force was required."

On 776.041 the court stated:

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Generally, a defendant who initially provokes the use of force against himself cannot rely on § 776.012 or § 776.013(3). Fla. Stat. § 776.041. However, a defendant can rely on the statute if he or she proves that the other party’s responding force is so great that the defendant fears imminent death or great bodily harm and has exhausted every reasonable means of escape; or if the defendant withdraws from physical contact and indicates the withdrawal to the party who continues the use of force. Fla. Stat. § 776.041(2); see also Darling v. State, 37 Fla. L. Weekly D506 (Fla. 3d DCA Feb. 29, 2012).

The court denied the immunity because he failed to satisfy 776.012 (aside from aggressor issues) and:

Quote
Further, he did not prove that he was still entitled to the use of force even if he was the initial aggressor because (1) the force exercised by Mr. James was so great as to create fear of imminent death or great bodily harm and Defendant exhausted every reasonable means of escape; or (2) Defendant withdrew from physical contact, indicated the withdrawal, and that Mr. James continued the use of force.

Had he done either one,  and  met 776.012, immunity would have applied.


Offline unitron

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #64 on: August 16, 2012, 11:41:59 PM »
Don't overlook the inferences that can be made.  Zimmerman called the police before embarking on his quest to keep Martin in sight, for example.

From your remark above, I take it you are inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman.  You arrive at this point because you don't find Zimmerman credible, so when he says or implies that he did not provoke the use of force, you think that is probably a false statement.

Zimmerman calling the police is evidence that he called the police, but I'm not hearing the part that firmly establishes that Zimmerman very much wanted to avoid any active role in making sure that Martin was still around there when the police arrived.

As for me (as opposed to nomatter_nevermind) being "... inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman...", it's not being inclined to believe it, it's being willing to consider the possibility.


Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #65 on: August 16, 2012, 11:43:00 PM »
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.

You are doing just fine. Not everyone is a lawyer, and these forums are designed to help make the law understandable to those who are not. You got the principle right -- the choice of words is probably not  that important.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #66 on: August 16, 2012, 11:45:39 PM »
As for me (as opposed to nomatter_nevermind) being "... inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman...", it's not being inclined to believe it, it's being willing to consider the possibility.

Since there is no evidence of that, you may not make that speculation here. Only speculation supported by disclosed facts is allowed. And this thread is about the immunity hearing.

Offline unitron

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #67 on: August 17, 2012, 12:03:47 AM »
Since there is no evidence of that, you may not make that speculation here. Only speculation supported by disclosed facts is allowed. And this thread is about the immunity hearing.

But, contrary to what someone else is claiming, Zimmerman calling the police is not evidence one way or the other of how the struggle began.

If you wish to delete their post as well as mine for not bearing directly on the immunity hearing I would have no quarrel with that, although that would entail deleting a few other posts as well.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #68 on: August 17, 2012, 12:10:05 AM »
I'm leaving the aggressor issue.

There's a new stand your ground/selfdefense immunity case: Mederos v. State, 2012 Fla. App. LEXIS 13360  8/10/12

It confirms what Judge Hirsch wrote in Wyche, that even if SYG is denied pre-trial, it can be raised before the jury.

Quote
By denying dismissal of the information, the trial court concluded that petitioner could not avoid prosecution under the facts as presented at the evidentiary hearing, but Mederos may raise as an affirmative defense at trial the claim that he cannot be convicted given the Stand Your Ground Law. Our denial of the petition, therefore, is without prejudice to the raising of the Stand Your Ground defense at trial. See Peterson, 983 So. 2d at 29 (A party claiming immunity whose motion to dismiss was denied "is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.").

It also confirms that the defendant can seek a writ of prohibition after the denial of a SYG motion and before trial.

Offline cboldt

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #69 on: August 17, 2012, 12:12:52 AM »
CBoldt, read Dooley again.

Besides saying that Dooley generally supported your point of view (for the sake of argument, because it didn't apply the rule you advocate) I said that Dooley has parts that can be read for the opposite of what you blockquoted.

Here, the Court finds that even if Defendant had satisfied the elements of § 776.012 or § 776.013(3), he would not be entitled to immunity because he failed to prove that he did not provoke the use of force against him. FN5

FN5  The argument could also be made that Defendant did not prove he was not committing or attempting to commit the forcible felony of aggravated assault, which would also prohibit him from relying on the justification statutes. Fla. Stat. § 776.041(1). However, because the Court finds Defendant did not prove entitlement to rely on the justification statutes based on § 776.041(2), this Court need not make that analysis.


Since the Defendant did not prove that he was not the initial aggressor, he is prohibited from relying on either § 776.012 or § 776.013(3).


Courts fairly commonly conflate principles that can diverge, when those principle don't diverge in the case at hand.  In this case, no immunity was allowed, so the case doesn't  provide an example of a person being an initial aggressor (committing a crime), then being granted immunity.  It certainly (and strongly) suggests that is possible.  But, it also denies immunity on the grounds that defendant hadn't shown a predicament that results in reasonable fear of death or serious injury, which would preclude immunity under 776.012 and 776.013, too.

I have a feeling the combination we are discussing, an initial aggressor either backing off unsuccessfully, or having force escalated to the point of reasonable fear of death; is uncommon.  I haven't found a case that grants legal immunity to an aggressor.

The opinions we are both citing are recent.   Here is a collection of older cases: Florida Cases Interpreting Section 776.041: Person Who "Initially Provoked" Incident May Not Claim Self Defense - Akron Law Cafe - Ohio.  Just FYI.  I don't think it aids our debate, but it was a mildly interesting collection.

I see you are leaving the aggressor discussion (took me awhile to find the cites in Dooley, compose a reply, etc., and I'm not inclined to just junk the above.)

Offline nomatter_nevermind

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #70 on: August 17, 2012, 01:45:38 AM »
As for me (as opposed to nomatter_nevermind)

You are implying something about me that I explicitly denied.

How about just making your point without involving me?

Offline unitron

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #71 on: August 17, 2012, 03:36:58 AM »
You are implying something about me that I explicitly denied.

How about just making your point without involving me?

My apologies if you feel I have mislead anyone into misunderstanding you.

I was replying to the post by cboldt about inferences that supposedly can be made about Zimmerman's call to the police, a post in which it was said directly to and about you--

"From your remark above, I take it you are inclined to believe Zimmerman threatened or used force against Martin, before Martin took a swing at Zimmerman."

I suspected that when I pointed out that Zimmerman's phone call to the police was no guarantee of his not making a mistake later on that I might have something similar said in reply to me, so I was trying to head that off at the pass, while indicating that, though it was a direct quote of cboldt talking about you, I wasn't talking about cboldt talking about you, I was anticipating the possibility of cboldt talking about me.

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #72 on: August 17, 2012, 07:31:32 AM »
No.

Zimmerman is the one with the injuries. There are witnesses that put TM on top of GZ. GZ called the police asking for help. GZ was screaming for help--picked up on the 911 calls. Etc.

I understand that you don't find Zimmerman credible, but you don't have to like him or even really believe him to analyze the evidence available.

And your problem is you have no evidence to back up your theory. What little there is backs up GZ.

The reference to the screams hurts your overall argument.  The evidence it was Zimmerman is much weaker than that for the other facts you cite.  If I were the judge at the immunity hearing or trial, I wouldn't let any identification of the distant cell phones screams in as evidence.  There is no reason to believe anybody is capable to doing such an identification.  Other attempts, based on circumstances, of assigning the screams to Martin or Zimmerman also are unconvincing to me.

Offline annoyedbeyond

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #73 on: August 17, 2012, 09:10:43 AM »
The reference to the screams hurts your overall argument.  The evidence it was Zimmerman is much weaker than that for the other facts you cite.  If I were the judge at the immunity hearing or trial, I wouldn't let any identification of the distant cell phones screams in as evidence.  There is no reason to believe anybody is capable to doing such an identification.  Other attempts, based on circumstances, of assigning the screams to Martin or Zimmerman also are unconvincing to me.

What?

It's fairly simple. From the earliest, GZ said he yelled for help. The 911 calls pick up someone yelling for help. The jury draws the inference.

No one is talking about offering conclusive proof--you don't have to.

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #74 on: August 17, 2012, 09:13:46 AM »
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.

I assume you are saying that 776.013 (3) is unavailable to the aggressor.
Quote
(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.

Why does provoker = aggressor?  Zimmerman reaching into his pocket might have provoked from Martin what seemed to the latter a reasonable response of punching Zimmerman, but I don't see that making Zimmerman an aggressor.  Even if he were the "aggressor", why would that make Zimmerman engaging in unlawful activity?  Wouldn't a separate charge have to be filed to cover the unlawful activity?  In summary, I don't see why appealing to .013(3)  is ruled out for Zimmerman. 

I thought, from another thread, that there was general agreement that .013(3) could be excised from 776 entirely and not change anything.  Am I mistaken about that?
« Last Edit: August 17, 2012, 09:16:27 AM by RickyJim »

 

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