Tricky Point About 776.041

[RickyJim]

Just when I thought i understood it, the following came up in a discussion elsewhere:

776.041  Use of force by aggressor.--The justification described in the preceding sections of this chapter is not available to a person who:

(1)  Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

Does former mean those sections of 776 with numerical values strictly < .041, like 0.012?

I ask this because the remainder of .041 says

(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.

If part (2) is not considered a preceding section, one can argue that since a forcible felony is an initial provocation, you can commit a forcible felony and then shoot in self defense if you try to give up or retreat but the assailant doesn't agree to let up.  If that is true, than there is no need for 776.041(1) in this law.

[annoyedbeyond]

Two different things.

.1 says basically that if you're committing a felony of some sort, you don't get to shoot someone and claim it was justified.

That's separate from 2, which says that a person can't provoke someone into beating the crap out of him so he can shoot him.

Preceding means what came before:

CHAPTER 776
JUSTIFIABLE USE OF FORCE
776.012 Use of force in defense of person.
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.
776.031 Use of force in defense of others.
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

There is a need for .1 in the law because that says you can't shoot someone who's trying to stop you from committing a felony. I don't understand why you find that difficult.

[cboldt]

If that is true, than there is no need for 776.041(1) in this law.

The law comprehends situations with more than two actors.  It is possible for a person to be committing a forcible felony, and not be provoking the person who responds to the situation with force.  It is also possible for a person to be committing a forcible felony and meet no resistance.

[Cylinder]

You're not parsing the or operator properly.

776.041  Use of force by aggressor.--The justification described in the preceding sections of this chapter is not available to a person who...Initially provokes the use of force against himself or herself, unless...

The justification does not apply to anyone committing a forcible felony without caveat.

The justification does not apply to anyone who has provoked the use of force unless they meet certain criteria.

IANAL.

[RickyJim]

I agree that committing a forcible felony and provoking violence against oneself are not the same thing.  But let me illustrate the problem I have with .041 in another way.

Robber A commits a forcible felony, say robbing a bank.  Robber B sees A emerging with the booty and unprovoked attacks A violently in the hope of having the booty for himself.

Case 1 - B gets the upper hand and A begs B to stop and take the booty.  B keeps smashing A and A gets his gun out of a concealed holster and shoots B.

Case 2 - A gets the upper hand and B begs A to stop.  A keeps smashing B and B gets his gun out of a concealed holster and shoots A.

It appears that according to 776.041, A can't argue self defense under 776.012 since he was in the process of escaping from a forcible felony.  However, it also appears than B can argue 776.041(2) allows him to use lethal force against A.

[TalkLeft]

It has been explained many times why the forcible felony provision is not applicable in this case.

There are two sections of the aggressor statute. The first one, concerning forcible felonies, does not apply to this case because George Zimmerman is not charged with an independent forcible felony. A multiple of Florida cases and the state’s jury instructions state this. I've provided links to the opinions many times. See, Dennis v. State, Martinez v. State, Giles v. State, and Smith v. State.

The aggressor statute in Florida, § 776.041, allows the aggressor to respond with deadly force to the victim's use of force against him, if:

    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;

An aggressor is someone who initially provokes the use of physical force. Provoking fear in another person is not the same thing and not enough -- or even the test. The statute explicitly refers to an aggressor as someone who “initially provokes the use of force against himself or herself.”  Even in the unlikely event the jury believed GZ was the aggressor, they would still have to acquit him unless they believed the state proved, beyond a reasonable doubt, that George did not reasonably believe he was in imminent danger of great bodily harm and that there was another another reasonable means to escape the danger available to him at the time.

If Zimmerman was not the aggressor, and he reasonably feared serious bodily injury from Martin, he was justified in fatally in shooting Martin, regardless of whether lhe could extricate himself from the situation without using deadly force and regardless of whether lesser force  than deadly force would have sufficed.

The state must disprove self-defense beyond a reasonable doubt. GZ has no burden of proof. All he has to do is raise self-defense by providing some evidence, no matter how weak, even if it is just his own statements, that he acted in self-defense. The burden of proof at trial never shifts.

My view: If GZ was being attacked by Martin as he claims, which is supported by the photos of his injuries, and Martin was on top, as Witness 6 observed,  and GZ was unable to get out from under TM or extricate himself,  then he had no other means of escape from the danger he believed himself to be in.  In addition to the punch in the nose and slamming of his head against the concrete, there's also GZ's claim that TM was trying to suffocate him and he feared losing consciousness.  Even a month later, W6 said it seemed like the guy on the bottom in the red was struggling to get up (See March 20 interview transcript)

[RickyJim]

I will continue to be confused about the law until I understand precisely how the three groups of people

• Forcible felons
• Aggressors
• Provokers of violence against themselves

are related.  A Venn diagram anybody?

As far as the Zimmerman case, the basic facts are that W-6 remembers Zimmerman being on his back on the concrete just before he went into the house to call 911, it remains very reasonable that Zimmerman was the one screaming and his injuries show his head and the concrete may well have made contact show it is reasonable that he had a reasonable fear of great body harm that necessitated shooting.  The claim that he could have escaped without shooting just doesn't seem to have any evidence going for it.  The admitted temporary trapping of Martin's arm or wrist by Zimmerman's side as he reached for the gun doesn't mean much to me.  I wouldn't quote any claims by Zimmerman in my closing statement if I was O'Mara and I think I just demonstrated it is not necessary.  BDLR may convince the jurors that Zimmerman is not a credible person.  Leaping from the opinion that somebody's statements are consistently self-serving to the conclusion that they are probably false is not a deduction I make, but unfortunately many people do.

[Cylinder]

Forcible felons

Unable to claim self-defense. If a person is committing or attempting a forcible felony, they would have to let me strangle them to death rather of shooting me with the gun they have pointed at my head. That's even if they felt like they've had enough and decided to flee. Even if they were begging for their life while trying to get away. That doesn't speak to my criminal liability, just their own. It can be the case that my use of force was deemed unnecessary or the fear unreasonable but that would not relieve the forcible felon of the prohibition from self-defense.

Aggressors
Provokers of violence against themselves

These are the same person. They cannot avail themselves of a self-defense justification unless they meet one of the following criteria:

They exhaust every means of escape but cannot extricate themselves.

They withdraw from contact and make it clear that they no longer wish to use force.

Any one will do.

How are they related? They're not, really. They are two distinct categories of people who have, through their actions, either ceded justification entirely or must take specific actions to reestablish their ability to claim justification. The common thread is a diminished or non-existent ability to claim self-defense.

This is a layperson interpretation. IANAL.

[cboldt]

If a person is committing or attempting a forcible felony, they would have to let me strangle them to death rather of shooting me with the gun they have pointed at my head. That's even if they felt like they've had enough and decided to flee. Even if they were begging for their life while trying to get away. That doesn't speak to my criminal liability, just their own. It can be the case that my use of force was deemed unnecessary or the fear unreasonable but that would not relieve the forcible felon of the prohibition from self-defense.

The labels aren't forever fixed, and I suspect that the person who was a forcible felon one moment would be entitled to use self defense to save his own life, if you were choking him to death and he had somehow signaled a decision to relent.  Quite different result if your use of force was more sudden than strangling to death, e.g., gunshot(s) until the threat or felon stops.

The larger point of 776.041 is to deny immunity to certain classes of users of force; and is not intended to work a blanket "you can't act to save your own skin."

Your scenario is improbable to the point of absurd, so the analysis yields a strange result - but the felon has a right to use force to prevent you from strangling him to death.  You have the same right.

[RickyJim]

The thing that bothers me Cylinder are people who are both Forcible Felons and Aggressors/Provokers.  It certainly seems possible.  (No, I don't have Zimmerman in mind, although we know others do.)  .041 seems to say on one hand that such a person can't claim self defense and on the other hand that he can if he perceives his victim is about to kill him and has exhausted means of escape.  Sorry for being so dense.   

[TalkLeft]

Ricky, it couldn't be any clearer or simpler. There have been 50 cases on it and it went to the FL Supreme Court and at least a dozen convictions have been reversed.

Section 1 of 776.041 does not apply unless the defendant is formally charged with an independent forcible felony. GZ is not so charged so it does not apply. The judge is not allowed to refer to Section 1 in instructing the jury.

Read the 2012 Santiago case I have posted before. It starts by saying "This case involves another misuse of the often misunderstood jury instruction on the forcible felony exception to self-defense. The misuse of the instruction in this case requires us to reverse ..."

the legislature has modified a defendant's [**2] right to have the jury
consider the defense of self-defense when the defendant
is engaged in a forcible felony at the time of the alleged
self-defense. The forcible felony exception--section
776.041(1), Florida Statutes (2000)--provides that
self-defense is not available as a defense if it occurred
while the defendant was "attempting to commit,
committing, or escaping after the commission of a
forcible felony. . . ." Thus, as a matter of public policy,
the forcible felony exception prohibits defendants from
availing themselves of the defense of self-defense in
certain circumstances even when there are facts that
might arguably support such a defense..

However, in recognition of the due process
considerations underlying a defendant's general right to
have the jury instructed on his or her theory of defense,
the legislature defined relatively narrow circumstances
under which the forcible felony exception applies. First,
the exception applies only when "the accused is charged
with at least two criminal acts, the act for which the
accused is claiming self-defense and a separate forcible
felony." Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th
DCA 2002); see also Martinez v. State, 981 So. 2d 449,
453-54 (Fla. 2008). [**3] Thus, "the proper test for
determining the applicability of the instruction is not
whether the self-defense act itself could qualify as a
forcible felony, but whether, at the time of the
self-defense, the accused was engaged in a separate
forcible felonious act." Giles, 831 So. 2d at 1266.

Second, for the forcible felony exception to apply,
the defendant must be engaged in the separate and
independent felonious act at the time of the alleged
self-defense. See Giles, 831 So. 2d at 1266; Cleveland v.
State, 887 So. 2d 362, 363 (Fla. 5th DCA 2004). A
separate and independent forcible felony that occurs at
some time other than when the alleged self-defense was
occurring will not generally support giving the forcible
felony instruction.

Third, because the defendant must be engaged in a
separate and independent forcible felony at the time of
the self-defense, "[a]n instruction on the
forcible-felony exception should not be given 'unless the
defendant is charged with an independent forcible felony,
in addition to the offense for which he claims
self-defense.'"

Thus, when the defendant claims
self-defense as to every offense with which he is charged,
there is no separately charged "forcible felony" to trigger
the application of the instruction.

[RickyJim]

I understand what an independent forcible felony is (I think) but the rationale for .041(1) mystifies me.  One possibly incorrect assumption I am making is that if a law is of the form (1) or (2), both may apply to a particular situation.  Here is an example I can't understand:

 A is escaping from a forcible felony he committed and encounters B.  They get into a fight.  A tries to
withdraw but B doesn't let him and keeps beating A up.  A shoots B.  In the case that B started it, A is out of luck since he can assert neither.012, .013 nor .041(2) to justify shooting in self defense.  If A was the initial aggressor in the fight with B, he can assert .041(2) to justify it.  It sounds nutty but that is what 776.041 seems to imply. 

[MJW]

I understand what an independent forcible felony is (I think) but the rationale for .041(1) mystifies me.  One possibly incorrect assumption I am making is that if a law is of the form (1) or (2), both may apply to a particular situation.

The problem is you assume that if (1) and (2) both apply, but if one of the exceptions, (2)(a) or (2)(b), applies, then the defendant can then claim self defense. That's not true. It means that (2) doesn't prevent a claim of self defense; but (1) still does. If (1) applies, it matters not whether (2) applies also.

[MJW]

I should point out, I realize this discussion has almost nothing to do with Zimmerman's case, since he hasn't been charged with an independent forcible felony. GZ can only hope Judge Nelson gives the forcible felony instruction, since it would result in almost certain reversal if he were convicted.

[TalkLeft]

I should point out, I realize this discussion has almost nothing to do with Zimmerman's case, since he hasn't been charged with an independent forcible felony. GZ can only hope Judge Nelson gives the forcible felony instruction, since it would result in almost certain reversal if he were convicted.

Agree, so Ricky, please read the cases (not just the statute) and let's move on from this so you don't confuse other readers.

There is no other forcible felony charged in this case so the jury cannot be instructed on it. You've beat this to death and we've all responded several times.