Author Topic: Immunity Hearing: Stand Your Ground and/or Self-Defense  (Read 24512 times)

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Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #90 on: August 19, 2012, 03:30:44 PM »
Ricky, I think your questions are addressed by the Dooley case CBoldt referred to from May, 2012. Although a District Court case, rather than an appellate case, and probably not of precedential value, it says that at an immunity hearing under 776.032, the defendant has to establish by a preponderance that his use of force was justifiable under 776.012 or 776.013, and that if he provoked the attack, he is not barred by 776.041 from claiming justification under 776.012.

The ruling was unfavorable to Dooley, so it's phrased in the negative, but it gives you an idea what at least one judge says is the burden:

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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.

Assume Dooley had the facts on his side, the finding would be the reverse, something like this:

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Defendant has established by a preponderance of the evidence that he is entitled to immunity from prosecution. First, the Court finds that Defendant has established that he met the requirements of  § 776.012 or § 776.013(3). Second, the Court finds that having satisfied one of the two statutes, he is entitled to immunity because he has established he is not barred from relying on the immunity statute pursuant to § 776.041.

If the state doesn't claim GZ is the aggressor, the 776.041 bar doesn't even come up. If the state makes that claim, this judge is saying that at the immunity hearing, to prevail under the preponderance of evidence standard, GZ would have to establish both that he fit under 776.012 and that he is not barred by 776.041.

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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.

This judge is accepting as true that Dooley provoked the attack.  But his point is that the defendant has to show he is not barred by 776.041. If there was a dispute as to whether the defendant provoked the attack, I think this judge makes it clear he would say defendant had the burden to establish he did not provoke the attack by a preponderance.

Again that's just one trial judge,  but it's very recent and seems to at least address your question, if I’m understanding your question correctly.

At trial, the burden would be on the state.







Offline FromBelow

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #91 on: August 19, 2012, 04:03:20 PM »
Jeralyn, do you think the State knew about and/or anticipated MOM finding/using the aggressor "loophole" in .041 - 2(a)? It seems it threw a lot of people, even experienced lawyers, for a bit of a loop. There have been so many lawyers claiming, essentially, that GZ couldn't get immunity w/o SYG or if he was the aggressor. I wouldn't be too surprised if even the State's understanding was somewhat lacking.

Offline MJW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #92 on: August 19, 2012, 04:05:25 PM »
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.

Again, you said:
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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 read ("read" in the past tense, since now I know better) that as pretty clearly equating "provok[ing] Trayvon's use of force against him" with "justifying TM's use of force against GZ." Reasonably believing one is in danger of an imminent physical attack is certainly the primary justification for self defense. In any event, what I (mistakenly, I now know) said you suggested in your original comment was:

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...that if the victim reasonably believed the defendant was threatening an imminent physical attack, the defendant provoked the attack.

I didn't say Martin had asserted self defense.

Believe me, I'm not trying to get on your bad side, and I promise this will be the last I'll have to say on this matter.

Offline TalkLeft

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #93 on: August 19, 2012, 04:16:11 PM »
Believe me, I'm not trying to get on your bad side, and I promise this will be the last I'll have to say on this matter.

Nor I, yours. I appreciate your contributions. I'm just stickler when it comes to people rephrasing what I said, and on terminology. Thanks for clearing up what you meant.

I have to get offline, so I'll stop bugging you.
« Last Edit: August 19, 2012, 04:18:55 PM by TalkLeft »

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #94 on: August 19, 2012, 04:25:37 PM »
Ricky, I think your questions are addressed by the Dooley case CBoldt referred to from May, 2012. Although a District Court case, rather than an appellate case, and probably not of precedential value, it says that at an immunity hearing under 776.032, the defendant has to establish by a preponderance that his use of force was justifiable under 776.012 or 776.013, and that if he provoked the attack, he is not barred by 776.041 from claiming justification under 776.012.

The ruling was unfavorable to Dooley, so it's phrased in the negative, but it gives you an idea what at least one judge says is the burden:

Assume Dooley had the facts on his side, the finding would be the reverse, something like this:

If the state doesn't claim GZ is the aggressor, the 776.041 bar doesn't even come up. If the state makes that claim, this judge is saying that at the immunity hearing, to prevail under the preponderance of evidence standard, GZ would have to establish both that he fit under 776.012 and that he is not barred by 776.041.

This judge is accepting as true that Dooley provoked the attack.  But his point is that the defendant has to show he is not barred by 776.041. If there was a dispute as to whether the defendant provoked the attack, I think this judge makes it clear he would say defendant had the burden to establish he did not provoke the attack by a preponderance.

Again that's just one trial judge,  but it's very recent and seems to at least address your question, if I’m understanding your question correctly.

At trial, the burden would be on the state.

It seems to me that Judge Moody says that a defendant, whom the prosecution claims was the aggressor, has two paths to get immunity: he can either show by a preponderance of the evidence that he wasn't the aggressor (in the Zimmerman case, the initial provoker) or he can show by a preponderance of evidence that he actively tried to withdraw from the fight as spelled out in (a) and (b) of .041.  Then in addition, he would have to show by a preponderance of evidence that he satisfied the JUDF condition given in .012 or .013(3) which may have been done in establishing (a).  It seems much easier for Zimmerman to go the second route.  To prove that he was more likely than not, not the initial provoker seems tough to me (but I know others here will disagree  :D).  Thanks for pointing out Judge Moody's decision.  It looks like one of the best explanations of what immunity hearings are all about.
« Last Edit: August 19, 2012, 04:28:25 PM by RickyJim »

Offline MJW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #95 on: August 19, 2012, 04:41:03 PM »
To prove that he was more likely than not wasn't the initial provoker seems tough to me (but I know others here will disagree  :D).

If you mean Zimmerman might be the aggressor because he went for his cellphone, I have to (surprise!) disagree. How could anyone consider reaching for a cellphone aggression? The obvious purpose of subsection 776.014 is to limit the use of self defense by the person who started the fight. How is that purpose achieved by applying it to someone who showed no intention of harming the other person? 

Offline Lousy1

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #96 on: August 19, 2012, 04:55:36 PM »
If Martin was afraid of Zimmerman's cell phone why didn't he shout out to witness 6 ' he's got a phone - he's got a phone!'  when he had the opportunity?

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #97 on: August 19, 2012, 05:25:34 PM »
If Martin was afraid of Zimmerman's cell phone why didn't he shout out to witness 6 ' he's got a phone - he's got a phone!'  when he had the opportunity?

Welcome back.  I hope that the camping trip left you tanned and healthy.  The point was that Martin didn't know that it was his cellphone Zimmerman was reaching for and who really knows what he said to Martin before getting punched?  The prosecution has also signaled that they will try to make it plausible that Z chased M down and Z's following of M in the car was provocative.  If the judge thinks it 50-50 that Z was the initial provoker, then that route to immunity is out.  He is going to have to show JUDF is more likely than not in establishing .012 anyway, then why not use it also to establish the exception (a) of .041?
« Last Edit: August 19, 2012, 05:33:16 PM by RickyJim »

Offline FromBelow

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #98 on: August 19, 2012, 05:39:39 PM »
If the state doesn't claim GZ is the aggressor, the 776.041 bar doesn't even come up. If the state makes that claim, this judge is saying that at the immunity hearing, to prevail under the preponderance of evidence standard, GZ would have to establish both that he fit under 776.012 and that he is not barred by 776.041.

Does the Judge decide both? That GZ's not barred by 776.041 and also fits under 776.012 before ruling if he will grant immunity? What I'm wondering is if MOM will try to use the immunity hearing to get the Judge to rule that GZ is not barred by 776.041. If the Judge does rule that would that carry over into a trial? By that I mean can MOM use that decision by the Judge and cut off any argument the State may make that GZ "pursued" and therefore was responsible for the outcome? That's quite a bit of their argument it seems.
« Last Edit: August 19, 2012, 05:42:10 PM by FromBelow »

Offline FromBelow

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #99 on: August 19, 2012, 06:10:28 PM »
I'm aware that the State has to accuse GZ of being the aggressor, but what else could they be trying to claim in the probable cause affidavit? Surely they would have to try and make such a claim in the immunity hearing, wouldn't they? Well, maybe not. This stuff gets complicated.

Offline AJ

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #100 on: August 24, 2012, 11:47:50 PM »
I'm not sure if this has been discussed here or on the blog side of things (to be honest I'm not even sure what search terms I would use to try and find something previously posted about it), my question is.. is a defendant mandated to take the stand at a self-defense immunity hearing (aka: Dennis Hearing?) in Florida? I've looked at Dennis v State and Patterson v State but I didn't find anything about the defendant taking the stand at all in either of those decisions - though my scan was quick. Anyone else have something solid stating a defendant would have to take the stand or is this just a conclusion that BDLR jumped to?

Offline nomatter_nevermind

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #101 on: August 25, 2012, 04:31:31 AM »
It is often argued that, because the defendant's state of mind is among the elements of justifiable use of deadly force, it cannot be proved to a preponderance of evidence without the defendant testifying. I don't believe there is any case law to that effect. If there were we would have heard of it by now. It will be up to the judge to decide if he should rule for the defense without hearing from the defendant.

IANAL.

Offline turbo6

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #102 on: September 07, 2012, 09:31:01 AM »
As for Trayvon feeling threatened by George fumbling through his pockets, couldn't the exact same be said for Zimmerman?

Getting out of his truck to see where Trayvon went and get an address to give some insight as to where he was going - that doesn't necessarily seem indicative that he wanted to do anything other than that.

Running away, perceived by many is an admission of guilt. Viewed by Zimmerman that likely further led him to believe he was up to no good. With all the past break ins, watching him run away from the truck likely made him think once again this was the case.

The thing with burglars, petty thieves and such is that they always run away. The likelihood of a perceived burglar running away, and then coming back to confront you is slim, and why Zimmerman was probably caught off guard by this.

Sure, there was some poor decision making that night. But I can't imagine a jury equating calling the police, keeping tabs on a suspicious person to be anything more than that. GZ could have make better judgements, but under the guise he was chasing a property thief I don't think he expected this outcome.

On a side note, there has to be some remotely similar cases to this. I can imagine some vigilant homeowners out there confronting people lingering too close to their property or whatever, looking suspicious...anything recent?

Offline FromBelow

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #103 on: February 15, 2013, 07:22:36 AM »
I may have missed it, but what statute states that self-defense immunity is exclusively determined by a judge?
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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, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

IANAL, but it seems that the statute only states criteria for immunity that needs to be met. It doesn't state who decides whether or not it's been met. In a trial a jury decides if a defendant is guilty or innocent. Shouldn't they have the option to decide if 776.032 applies? Granted, the case already got to the point of trial, but still... shouldn't the jury have the option to say "Hey, this guy is immune because of [776.032]. What are we doing here?"
« Last Edit: February 15, 2013, 07:26:50 AM by FromBelow »

Offline Cylinder

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #104 on: February 15, 2013, 11:33:17 AM »
I may have missed it, but what statute states that self-defense immunity is exclusively determined by a judge?

Dennis v Florida

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We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.

 

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