Author Topic: Immunity Hearing: Stand Your Ground and/or Self-Defense  (Read 23429 times)

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Offline JW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #75 on: August 17, 2012, 01:52:39 PM »


Would it be the prosecution's responsibility to have to prove George was the aggressor?

Offline nomatter_nevermind

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #76 on: August 17, 2012, 01:58:21 PM »
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.

I think witnesses are normally allowed to identify the voices of people they know. Is there precedent for excluding such identification because the voice is recorded from a phone?

Are there grounds for excluding the recording itself?

In light of all the evidence, I don't think it is plausible that the voice is Martin's. That means it is probably Zimmerman's.

Offline MJW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #77 on: August 17, 2012, 01:59:06 PM »
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. 
Your theory that a defendant could be denied immunity for performing a perfectly legal act with no intent to attack or threaten the other person is, to me, crazy. I can see it now: "Sorry sir, but even though you did nothing wrong, and were only protecting yourself, you can't seek immunity because you're a dead wringer for a well-known viscous gangster, and your resemblance provoked the victim to attack you, believing you'd come to kill him."
« Last Edit: August 17, 2012, 02:03:49 PM by MJW »

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #78 on: August 17, 2012, 03:18:14 PM »
Your theory that a defendant could be denied immunity for performing a perfectly legal act with no intent to attack or threaten the other person is, to me, crazy. I can see it now: "Sorry sir, but even though you did nothing wrong, and were only protecting yourself, you can't seek immunity because you're a dead wringer for a well-known viscous gangster, and your resemblance provoked the victim to attack you, believing you'd come to kill him."

How in this world did you make me into this strawman?  Explain to me my "theory" of how an inadvertent provoker of an attack against himself would be denied immunity.

Offline MJW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #79 on: August 17, 2012, 03:47:19 PM »
How in this world did you make me into this strawman?  Explain to me my "theory" of how an inadvertent provoker of an attack against himself would be denied immunity.

Though I was obviously exaggerating to bring into focus how untenable I think your position is, how is reaching for a cell phone any less innocent than happening to look like a criminal? Didn't you claim that because Zimmerman went to get his cell phone, and Martin may have mistakenly thought he was going for a weapon, Zimmerman provoked Martin?

Oh, I think you did:
Quote
The prosecution claims that it is more likely than not that Zimmerman's admitted reaching for something when Martin approached him at the T constituted a provocation to Martin as covered by .012 so (2) is relevant.
« Last Edit: August 17, 2012, 03:50:42 PM by MJW »

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #80 on: August 17, 2012, 04:37:51 PM »
Would it be the prosecution's responsibility to have to prove George was the aggressor?

At trial, absolutely. And I don't believe they can do it. But even if he is the aggressor,  he can still prevail under 776.012 if one of the exceptions apply.

At the immunity hearing, GZ has to establish by a preponderance of the evidence that his use of force was justified under 776.012 or 776.013, and , if the state raises the aggressor issue, that he is not subject to the bar in 776.041, either because he did not provoke TM's attack or  because one of the exceptions apply. O'Mara believes he can establish by a preponderance that GZ is entitled to immunity under  776.032 through 776.012.

(edited to distinguish between burden at trial and burden at immunity hearing.)
« Last Edit: August 19, 2012, 02:45:24 PM by TalkLeft »

Offline MJW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #81 on: August 17, 2012, 06:50:27 PM »
I described a hypothetical situation where Zimmerman reaching for the cellphone was accepted by a judge as a provocation that would trigger .041 which would require that Zimmerman not stand his ground in order to be granted a self defense acquittal at a trial  The provocation doesn't seem to have any bearing on .012 which can lead to immunity for Zimmerman under .032.  I agree that is seems silly that someone who stood his ground could be granted immunity, preventing a trial where he would be convicted because he had no right to stand his ground since he inadvertently provoked his attacker .  This isn't the first time that 776 is noted to have seemingly contradictory, redundant and confusing sections.  Maybe both .013(3) and .041 should be ditched.

I apologize if I seem to be attacking you; I only intend to attack your arguments. I don't think it's possible to inadvertently provoke an attacker when "provoke" is used within the meaning of the the self-defense statutes. The only time "provoke" is used is in section 776.041, which bares the title "Use of force by aggressor." So to answer to your question, "Why does provoker = aggressor?": Because that's what the statute requires. I suppose it's possible a judge could decide that Zimmerman's reaching for his cellphone was provocation that would trigger 776.041. Judges make legal errors all the time, even ones that are that obviously wrong.

Quote
If you insist on keeping up the attack against me, explain why using .012 to define a provocation is wrong.  Jeralyn has used it that way also.

I'm not sure what you mean. 776.012 doesn't mention provocation.
« Last Edit: August 17, 2012, 06:56:57 PM by MJW »

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #82 on: August 18, 2012, 09:36:05 AM »
I apologize if I seem to be attacking you; I only intend to attack your arguments. I don't think it's possible to inadvertently provoke an attacker when "provoke" is used within the meaning of the the self-defense statutes. The only time "provoke" is used is in section 776.041, which bares the title "Use of force by aggressor." So to answer to your question, "Why does provoker = aggressor?": Because that's what the statute requires. I suppose it's possible a judge could decide that Zimmerman's reaching for his cellphone was provocation that would trigger 776.041. Judges make legal errors all the time, even ones that are that obviously wrong.

I'm not sure what you mean. 776.012 doesn't mention provocation.

I based the hypothetical judge's finding Zimmerman provoked Martin according to .012 from reading this posting on the main site.
In particular:
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. (Statute<.012>)

    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.

In order for Trayvon to have been justified in his use of non-deadly force against GZ, he had to reasonably believe he was in imminent danger of a physical attack by Zimmerman. He can't just have unsure what Zimmerman up to. And the provocation cannot be the result of something GZ did earlier, like following him.  Being followed does not allow one to respond with a punch in the nose or hitting the pursuer's head against the ground.  We've seen no evidence of that from the State or an eyewitness as to GZ provoking the use of force by TM against him.

Obviously Jeralyn didn't mention and probably doesn't believe that Zimmerman's reaching for something in his pocket is a provocation satisfying "Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman".  However I think it is in the possible realm of judicial opinion.  The failure of .041 to spell out what provocation means is a failing of that statute, although you make a pretty good case that it means an actual "aggressor" regardless of the perhaps reasonable impressions of the person provoked.  This argument is reminiscent of the one concerning the reasonableness of Zimmerman's fear of great harm to himself when he shot Martin despite, if you so believe, he didn't have serious injuries.  That is why standards of proof for the decisions made by the trier of fact are so important.

Offline annoyedbeyond

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #83 on: August 18, 2012, 10:29:40 AM »
Your problem as I see it is that the law says you may meet force with force. In other words--someone reaching for a phone doesn't give you the right to shoot them or try to beat the living snot out of them. It might give you the right to grab them until you're sure it's just a phone without being charged for assault and or battery.

Offline JW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #84 on: August 18, 2012, 02:17:25 PM »


It is simply cherry picking to say TM was provoked by GZ "reaching for his phone". One could also say GZ was provoked to reach for his phone by TM's action of approaching him from the dark. The confrontation began when TM came out of the dark and spoke to GZ which set everything else into motion. Had TM remained from where he came it never would have happened. GZ has a strong case for traditional self defense.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #85 on: August 19, 2012, 12:54:42 AM »
You have a good point that what J* said does indicate that if the victim reasonably believed the defendant was threatening an imminent physical attack, the defendant provoked the attack. I would respectfully suggest to Jeralyn that she might want to reconsider.  Whether or not the victim would be entitled to a claim self defense is irrelevant to whether the defendant can claim of self defense.

I did not say that and I'm deleting your comment that did. I said Trayvon was only justified in using force against GZ if he reasonably believed he was in danger from GZ's imminent use of force against him.

The point being, even if Trayvon had such a belief, and it was not one a reasonable person in his situation would have, then he was not justified in physically attacking GZ. If he wasn't justified in physically attacking GZ, then GZ can not be held to be an aggessor, because he didn't provoke Martin's attack and an aggressor is one who provoked the victim's use of force against him.

I've always said this case isn't about whether Trayvon could claim self-defense had he lived.  I'm discussing whether the argument that GZ was an aggressor preventing him from asserting 776.013 as a basis for immunity under 776.032, which  some anticipate the state will make, has any validity. (O'Mara has said he is not raising 776.013 but 77.012, which is what prompted the discussion in the first place: Why wouldn't O'Mara use 776.013, since GZ is not the aggressor?)

I've also deleted the comment about forcible felonies. It is clear that section of 776.041 does not apply to this case as GZ is not charged with an independent forcible felony and I spent weeks making sure people understood this and didn't bring that section up. Even though you may have brought it up by way of analogy, it confuses the issues and leads to misunderstanding.  776.041 says  (1) or (2) and (2) (a), the section under discussion here, applies to one who "initially provokes the use of force against himself or herself"-- no further qualifiers.

I suggest you and Ricky respond to each other without bringing in what I said unless it's a direct quote in context, because if I think you are misstating what I said, I'm going to delete the comment as I don't want a view I disagree with or did not endorse represented as being my view. Thanks.
« Last Edit: August 19, 2012, 01:17:28 AM by TalkLeft »

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #86 on: August 19, 2012, 01:18:43 AM »
This thread is about the immunity hearing. Please take discussion of witnesses and what they saw and heard to the witness or evidence threads. Thanks.

Offline MJW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #87 on: August 19, 2012, 11:54:00 AM »
I did not say that and I'm deleting your comment that did. I said Trayvon was only justified in using force against GZ if he reasonably believed he was in danger from GZ's imminent use of force against him.

* * *

I suggest you and Ricky respond to each other without bringing in what I said unless it's a direct quote in context, because if I think you are misstating what I said, I'm going to delete the comment as I don't want a view I disagree with or did not endorse represented as being my view. Thanks.

I was responding to a direct quote, namely:
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.

I assumed that you were using the word "provoked" as it's used in 776.014(2). You did, after all, say that the action of putting Martin in reasonable fear of a imminent physical attack would make Zimmerman the aggressor, which seems to be a reference to the title of that subsection. I apologize if I misrepresented what you meant, but I don't think my assumptions about your meaning were unreasonable.

I'm glad to learn you don't agree with the view that if Martin had the right to self defense, then Zimmerman provoked the violence (within the meaning of 776.014(2)); it is, after all, wrong, as I've been saying all along to RickyJim.

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #88 on: August 19, 2012, 12:11:55 PM »
The Justifiable Use of Force law, Florida 776, apparently has at least two functions.  It guides a judge in making up a special jury instruction for cases where self defense might be used as a justification of force used and it can also guide a judge in other hearings related to the use of force (sections .032 and .085).  I will restrict this to trying to understand what it says about justification for use of deadly force in the Zimmerman case as considered at the immunity hearing.  The main thing it repeats, in one form or another, several times is,
JUDF - 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.

The list of forcible felonies is given is section .08.  In section .012, JUDF is given without restriction with the added bonus that the user of JUDF had no duty to retreat.  JUDF and the bonus are again given in .013(3) but this time with the restriction that it applies to, "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".  I believe that the word other was inserted because most of .013 is about home protection. 

In .041, JUDF, without the part about forcible felonies and the bonus, is granted to "aggressors".  Apparently the latter means people who are committing or escaping from a forcible felony or somebody who "Initially provokes the use of force against himself or herself".  No explanation is given for this quoted phrase in 776 and those who have read this thread will agree, I think, that an elucidation is highly desirable.  It is also emphasized in .041 that such "aggressors", who intend to use JUDF have to actively not stand their ground, i.e. attempt to escape or tell the assailant they give up.

.032 says that those who use JUDF according to .012, .012, 0.31 (latter not applicable in Martin/Zimmerman) are immune from criminal and civil action.  It doesn't spell out that this must be done in a hearing before a judge and decided by a preponderance of evidence.  Where is that spelled out?  What I have just gone through shows that confusion may reign at a hearing concerning .032.  Will the issue of Zimmerman being the initial provoker have to be disposed of negatively in order for him to get .032 immunity?  If so, by what standard of proof?  If O'Mara argues it is irrelevant since Zimmerman gets JUDF under .012, then why have the exceptions to JUDF mentioned in.013(3) and .041 of 776?

I hope I have at least explained why I am still confused.   :)
« Last Edit: August 19, 2012, 12:22:05 PM by RickyJim »

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #89 on: August 19, 2012, 02:43:39 PM »
I was responding to a direct quote, namely:
I assumed that you were using the word "provoked" as it's used in 776.014(2). You did, after all, say that the action of putting Martin in reasonable fear of a imminent physical attack would make Zimmerman the aggressor, which seems to be a reference to the title of that subsection. I apologize if I misrepresented what you meant, but I don't think my assumptions about your meaning were unreasonable. I'm glad to learn you don't agree with the view that if Martin had the right to self defense, then Zimmerman provoked the violence (within the meaning of 776.014(2)); it is, after all, wrong, as I've been saying all along to RickyJim.

But you inaccurately represented my quote by saying I  was equating whether Zimmerman provoked TM with whether TM acted in self-defense. I never said anything about "whether or not the victim would be entitled to a claim self defense"." Self-defense is an affirmative defense used in court by one charged with a crime. TM is not charged with a crime, he is dead. He has no right to assert self-defense. Self-defense is inapplicable to him.

I was addressing whether GZ provoked TM. Under 776.041, the aggressor is one who provokes the victim's use of force against him. If TM's use of force against GZ was not lawful, as defined by 776.012, because he didn't reasonably believe he was in danger of an imminent attack by GZ, then GZ didn't provoke TM's attack. His actions were not ones that would cause a reasonable person to believe he was in danger of an imminent attack.

I have never suggested TM had a right of self-defense or that it was an issue in this case.  That's a legal term with a specific meaning -- an affirmative defense available to someone charged with a crime.  I referred to TM's use of force as being justified or not under under the statute 776.012 which sets forth
when the use of force is justified.

And since I do not believe GZ was the aggressor, or that he provoked TM's use of force against him, I'd like to leave the topic as I think it is getting too much attention. The issue is whether GZ fits under 776.012 which entitles him to immunity under 776.032, unless he is barred from using 776.012 because of 776.041. 776.041 is inapplicable to him if he did not provoke TM's attack on him.
« Last Edit: August 19, 2012, 02:49:21 PM by TalkLeft »

 

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