Tricky Point About 776.041

[RickyJim]

Thanks to the comments above from MJW, I do have a better understanding of what .041 says.  I think that we shouldn't stop discussion of it yet since some of the points I mention below may come up in the Zimmerman case.  Look, if at least a dozen convictions have been reversed because judges, including Judge Nelson, didn't understand it, why shouldn't we ordinary mortals try to nail down better what it means?

Fl 776.041 gives three conditions, (1), (2)(a) and (2)(b) under which a defendant is denied the right to claim self defense under .012 or .013.   The forcible felony exception, (1), while now clear, seems very harsh.  Do we really want to deny somebody who "Is attempting to commit, committing, or escaping after the commission of, a forcible felony", no matter how mild a forcible felony, the right to assert self defense if he is viciously attacked and is able to injure or kill the attacker?

(2) (a) and (b) try to give restrictions on the right of the initial provoker of the force against himself to apply .012 and or .013 to make a self defense claim.  First of all, it remains to be seen whether or not the prosecution in Zimmerman will attempt to claim that provoker here includes other behavior than being the initial aggressor.  Next (2)(a) gives the following requirement on the initial provoker to justify the use of lethal force: "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".  This appears to make the condition of (2)(b) redundant: "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."

What bothers me mostly about .041(2) is it is not clear at what point the initial aggressor must try to quit the fight.  Is it right after the initial aggression or at some later point when his situation may be considered hopeless unless he shoots?  If it is the latter, than the restrictions of .041(2) aren't restrictions at all.  The initial provoker has at that point the same rights as any other user of .012.  It wouldn't surprise me if this law is thrown out by some court on the grounds it is "unconstitutionally vague".

[annoyedbeyond]

1. Where in the Constitution is "unconstitutionally vague"?

2. Don't assume a case being thrown out or reversed on appeal is because the initial judge was wrong on the law. All it means is a lawyer convinced another judge or panel of judges to look at it differently. Judges bring their own prejudices and understandings into the courtroom every day.

3. Why do you persist with this?

[RickyJim]

"unconstitutionally vague statute" gets 240,000 hits in Google.  I keep bringing the meaning of 776 up since, from what I understand of past self defense cases in Florida, it may come up during the trial.  We will have a better idea after the prosecution's opening statement.  The biggest mystery in the case is what the prosecution can possibly argue so we should be prepared ahead of time.

[cboldt]

"unconstitutionally vague statute" gets 240,000 hits in Google.  I keep bringing the meaning of 776 up since, from what I understand of past self defense cases in Florida, it may come up during the trial.  We will have a better idea after the prosecution's opening statement.  The biggest mystery in the case is what the prosecution can possibly argue so we should be prepared ahead of time.

The state will argue for the 776.041 "provocation" instruction, and O'Mara will argue it is inappropriate, because there is zero evidence of provocation as defined in the Gibbs case.  Smae during presentation of evidence.  If Bernardo tries to argue provocation, the defense will object, based on no evidence that Zimmerman provoked Martin (see Gibbs for "provocation").

Now you know how 776.041 will play in this case.

[annoyedbeyond]

"unconstitutionally vague statute" gets 240,000 hits in Google.  I keep bringing the meaning of 776 up since, from what I understand of past self defense cases in Florida, it may come up during the trial.  We will have a better idea after the prosecution's opening statement.  The biggest mystery in the case is what the prosecution can possibly argue so we should be prepared ahead of time.

I believe I said "in the Constitution".

Also, the meaning has been explained several times. By non-lawyer smart people and by a pretty smart laywer person.

You just choose to ignore.

[RickyJim]

The state will argue for the 776.041 "provocation" instruction, and O'Mara will argue it is inappropriate, because there is zero evidence of provocation as defined in the Gibbs case.  Smae during presentation of evidence.  If Bernardo tries to argue provocation, the defense will object, based on no evidence that Zimmerman provoked Martin (see Gibbs for "provocation").

Now you know how 776.041 will play in this case.

Sorry but I can't find the Gibbs reference.  I assume BDLR will argue for the widest definition of provocation as possible.

[cboldt]

Sorry but I can't find the Gibbs reference.  I assume BDLR will argue for the widest definition of provocation as possible.

Post includes link to Gibbs.  I think you looked at this once before, but I may have you mixed up with somebody else.

[RickyJim]

Now I remember the Gibbs case but I still have trouble relating it to Zimmerman.  Did Gibbs plead self defense?  I did not recognize either the original or proposed jury instruction as coming from 776.041 since it only talks about provocation and doesn't mention obligation to retreat.

[TalkLeft]

Your reference to "obligation to retreat" is misleading. The statute states one who provoked the use of force must have "exhausted every reasonable means to escape such danger." If there is no reasonable means to escape, there is no obligation to "retreat."

I realize you are using it as shorthand, but it overlooks that even if the Judge determined the state had a valid claim that GZ provoked Trayvon's attack and therefor was the aggressor,  if GZ had no ability to get out from under Trayvon to escape Trayvon's  attack on him, he would still prevail on self defense.

[MJW]

Now I remember the Gibbs case but I still have trouble relating it to Zimmerman.  Did Gibbs plead self defense?

Yes, it's right there in the opinion:

Joelle Gibbs appeals her conviction of culpable negligence with injury. We reverse because the trial court gave an inadequate jury instruction on self-defense.

and,

Witnesses at trial gave different accounts as to who initiated the physical confrontation between the two women and the amount of force used by appellant. Appellant's theory of defense was that she pushed the victim in self-defense.

[MJW]

Now I remember the Gibbs case but I still have trouble relating it to Zimmerman.

You find the following hard to relate to Zimmerman?

We agree with appellant that the jury instruction given by the trial court was inadequate to properly charge the jury in this case. The instruction stated that appellant could not defend herself with non-deadly force if she "initially provoked" the victim. By not limiting provocation to the use or threat of force, the court failed to make the jury aware that the word "provoked," as used in the instruction, did not refer to mere words or conduct without force.

You seem to think BDLR should be able to argue that conduct without force is provocation, and the 4th DCA said it wasn't. The relationship seems obvious.

[nomatter_nevermind]

I believe I said "in the Constitution".

Try googling 'unconstitutionally vague cases' or maybe 'case law'. If you read some decisions, you will probably find out what constitutional provisions the concept was derived from.

[nomatter_nevermind]

You seem to think BDLR should be able to argue that conduct without force is provocation, and the 4th DCA said it wasn't.

The prosecution could argue that Zimmerman's 'always get away' remark was evidence of an intention to detain Martin.

I think that's silly, given the context. I think it's far more likely that Zimmerman meant 'get away without being questioned.' But as a judge, I might agree that it's a question of fact for the jury.

Now, combine the argument that Zimmerman's pattern of conduct could have led Martin to reasonably infer that he intended some sort of physical attack, with the argument that Zimmerman did intend such an attack. I think that gets you to 'threat'. I don't think you even have to show that Martin drew the inference, since Zimmerman's actions are at issue.

[RickyJim]

The part I don't understand about the Gibbs case is the disputed jury instruction:

The standard instruction read:

    The use of force not likely to cause death or great bodily harm is not justifiable if you find Joelle Gibbs initially provoked the use of force against herself.

Appellant sought addition of the words "by force or threat of force" to the standard instruction, so that it would read:

    The use of force not likely to cause death or great bodily harm is not justified if you find Joelle Gibbs initially provoked the use of force against herself, by force or the threat of force.

(Emphasis added).

Is this derived from Fl 776.041?  .041(2) has the two unless conditions (a) and (b).  Why is neither included in either the actual or proposed Gibbs jury instruction?   (b) certainly seems to describe Gibbs' behavior because she stepped back before having the need to push Osmun.

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.

The other thing that confuses me is that the defense is adding "threat of force" so they seem to making it easier to call Gibbs a provoker.

[RickyJim]

Another thing about Gibbs:

The state charged appellant with murder in the second degree. After a jury trial, appellant was found guilty of culpable negligence with injury, a lesser included offense.

Did Angela Corey bring this case?  Might Zimmerman's jury end up with considering "culpable negligence with injury"?  It sounds like it might fit Serino's capias.