A Question For the Armchair Lawyers

Fisher · Jun 27, 2013

Lutherf said:
He would have plead "not guilty". He's the one being charged so the only thing he has to do is prove that he's not guilty of the particular charge. That's where that whole "presumption of innocence" comes in. It's kind of like if you get busted for DUI. You don't have to prove you weren't drunk, the prosecution needs to prove you were.

I don't know how the law works in FL. In some states everything below it in the same category is fair game as a lesser included offense, especially with murder. A less polarizing example would be grand theft. If it turns out that the items were not worth as much as thought, they can convict you of petite larceny without having to recharge you. I believe that some states are more curious than others on the lesser included offenses based on what I have read, but I don't recall all the nuances enough to generalize further.

Excon · Jun 27, 2013

Gaius46 said:
Perhaps incorrect with regard to Florida but certainly not NY.

And as this is about a case in Florida, ???

Gaius46 said:
I didnt read the entire thread I just answered the OP based on my knowledge of NY law.

That is a bad habit and you only have yourself to blame.

Gaius46 said:
It seems counter intuitive that a sane self defense law would work otherwise because it can lead to bizarre results.

The law is fine.
The initial aggressor should have protections for their self if they stop being aggressive.
So it makes sense.

ric27 · Jun 27, 2013

The thing is *if* Z did indeed push or shove M then Z is the *initial* aggressor....Z provokes M into hitting Z

Th switch occurs when M continues to hit Z and won't stop...then M is the aggressor and gives Z, the green light to respond with lethal force so long as Z reasonably feared serious bodily injury or death

Depending on many factors of the case, the aggressor mode can change multiple times over the duration of the struggle

Gaius46 · Jun 28, 2013

Excon said:
And as this is about a case in Florida, ???

That is a bad habit and you only have yourself to blame.

The law is fine.
The initial aggressor should have protections for their self if they stop being aggressive.
So it makes sense.

So lets look at the Florida statute then.

776.012Use of force in defense of person.—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. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1)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; or
(2)Under those circumstances permitted pursuant to s. 776.013.(defense of home).

776.041Use 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
(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.

776.012 pretty clearly states that a person may defend themselves with deadly physical force if that person believes that they are in danger of imminent death or great bodily harm.

So person A pulls a knife on B and B under 776.012 can legally pull his gun out and shoot A.

Except, that 776.041(2)(a) says that A, now faced with imminent death and not having time to throw up his hands and surrender, can stab B and creditably claim self defense. That seems wrong to me on its face.

I agree that the initial aggressor should be protected if he stops being aggressive so I have no problem (2)(b).

Jerry · Jun 28, 2013

LowDown said:
The question is, does a person lose the right to self defense if he initiates a violent encounter?

No, it's just not a self-defense situation.

Jerry · Jun 28, 2013

Captain Adverse said:
Well, I don't know where you studied law, but my understanding is if one person has a gun, and the other person does not, then the person without the gun is facing imminent death or serious bodily harm, while the person with the gun...is not.

A drivers license doesn't make us lawyers either, but it does give us a basic understanding of the applicable rules of the road. Likewise, most of us with a gun permit have a basic understanding of the use of force.

Captain Adverse said:
Point two: If the person with the GUN (who is NOT a police officer) approaches a person without a gun, that unarmed person having a reasonable presumption of imminent death or serious bodily harm has a right to act in his own self-defense.

No, just because someone has a gun, does not mean you are facing death or grave bodily harm.

Captain Adverse said:
Point three: If the intial aggressor (the guy with the GUN) fails to announce his intention to retreat, and fails to try to retreat once the person without the gun starts to defend himself, he loses the right to claim self-defense.

It's hard to think clearly while getting your ass handed to you in a fist fight.

Captain Adverse said:
Point four: If the initial aggressor (the guy with the GUN) then shoots and kills the the guy without the gun, then he is correctly answerable to a charge of homicide without the right to claim self-defense.

Z was unable to retreat at the time the gun was fired, so the whole issue of announcing intent to retreat or actually trying to retreat is irrelevant.

Captain Adverse said:
Where are you confused by my answer?

You're confused by what you think you know.

Jerry · Jun 28, 2013

Captain Adverse said:
Look, how did the kid get shot? As far as I am aware, Zimmerman was the only person in the encounter who had a weapon. He was an adult male facing an unarmed teenaged boy. Even had the boy started a fight with his bare hands it would be hard to show Zimmerman was facing immediate death or serious bodily harm. Some harm yes, which would entitle him to use reasonable force to defend himself, but deadly force? On what grounds?

The fact that T was not armed is not relevant in any way. Florida allows the use of deadly force to stop aggravated battery and/or aggravated assault.

776.012 Use of force in defense of person.—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. However, a person is justified in the use of deadly force and does not have a duty to retreat if:(1) 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; or
(2) Under those circumstances permitted pursuant to s. 776.013.

And a Forcible Felony is:

776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

And Aggravated Assault is:

784.021 Aggravated assault.—
(1) An “aggravated assault” is an assault:
(a) With a deadly weapon without intent to kill; or
(b) With an intent to commit a felony.
(2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

T broke Z's nose, had him on the ground pressing the assault on, and Z's testimony claims T was trying to grab his gun while saying "you're gona die tonight mother****er".

Bottom line: reach for someone's gun and they can kill you, even if they're the aggressor.

****
T could have been unarmed while robbing another house and Z would have been perfectly legally justified in shooting him on-site. That T was unarmed does not matter at all. He was committing a crime for which lethal force was authorized, and that's all that matters.

ecofarm · Jun 28, 2013

Jerry said:
The fact that T was not armed is not relevant in any way. Florida allows the use of deadly force to stop aggravated battery and/or aggravated assault.

And a Forcible Felony is:

And Aggravated Assault is:

T broke Z's nose, had him on the ground pressing the assault on, and Z's testimony claims T was trying to grab his gun while saying "you're gona die tonight mother****er".

Bottom line: reach for someone's gun and they can kill you, even if they're the aggressor.

****
T could have been unarmed while robbing another house and Z would have been perfectly legally justified in shooting him on-site. That T was unarmed does not matter at all. He was committing a crime for which lethal force was authorized, and that's all that matters.

One thing: assault is a threat in Florida, battery is physical.

784.011 Assault.—
(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

784.03 Battery; felony battery.—
(1)(a) The offense of battery occurs when a person:
1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.

Jerry · Jun 28, 2013

ecofarm said:
One thing: assault is a threat in Florida, battery is physical.

I read the law before posting. I know.

If T actually did say "you're gona die tonight mother****er", Z had every right to shoot and kill T.

505 · Jun 28, 2013

sharon said:
Trayvon didn't have time to call for help.

Bull****. He could have hung up with that retarded fat ass at any time and called the police. But we all know that wasn't his style... he was more interested in teachin that creepy ass cracka a lesson on how they do things in the 'hood. :roll:

Captain Adverse · Jun 28, 2013

Ok folks, here is my official Mea Culpa:

In response to the Original Post I stated;

Captain Adverse said:
The simple answer is YES. If you initiate the incident then your OPPONENT is defending himself against your agression and it is HE who has the right to claim self-defense. (In states that have a Duty to Retreat law, if he can effectively retreat and escape you he is required to try. The problem is Florida is a state with just the opposite, they have a Stand Your Ground law which enables you to repel agression with equal or greater force without the need to try and retreat.)

If Zimmerman is found to have initiated the incident, then he can no longer claim self-defense because his victim was exercising his right under state law to "stand his ground" and defend himself. That would mean Zimmerman committed murder.

Now in most jurisdictions with a Stand Your Ground law, this is a valid statement of consequences. But…

ttwtt78640 said:
Wrong. Under Florida law (unlike Texas) even if you were the initial aggressor you retain the right to use deadly force under certain circumstances.

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who: Is attempting
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(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.

Statutes & Constitution :View Statutes : Online Sunshine

...the above was provided by a member from Texas. So I opened the link and responded:

Captain Adverse said:
Umm nope. From what I read you misunderstand the law:

[Citing: (776.012 Use of force in defense of person.) Then referencing the above 776.013.]

If Zimmerman was the aggressor (initiator of the assault) the victim becomes the defender. Zimmerman loses the claim of self-defense UNLESS the defender responds with force which is likely to cause the original aggressor (Zimmerman) death or great bodily harm. There is no evidence the victim of Zimmermans assault was armed (right?), whereas Zimmerman was armed with a gun. 776.041(2)(a)

Zimmerman, as the aggressor was (according to this section you quoted) also OBLIGATED to try to break off the attack and make plain he was attempting to so that the original defender then becomes the assailant. There is no evidence Zimmerman tried to break off his initial attack. 776.041(2)(b)

Based upon your own citation, Zimmerman as the initial aggressor failed to try to withdraw, and was not facing imminent threat of death or serious bodily harm. Therefore, as the initial aggressor he cannot claim self-defense.

Again all true and in conformance with Florida law, if Zimmerman was the initial aggressor, which was what I understood the situation to be. But in making this statement “There is no evidence Zimmerman tried to break off his initial attack.” (correctly pointed out by our friend from Texas, who HAS been following the case, as being factually in dispute) I began to argue about what I only thought were the facts surrounding the confrontation.

Up to now I had absolutely no interesting the actual case subsequent to hearing the initial news reports so I was unaware that reported “facts” were actually in dispute. So, acting under the impression from old early news reports that Zimmerman, while armed; had approached, stopped and questioned the victim on a public street with no authority to do so I foolishly used facts not in evidence in all subsequent arguments. Therefore, arguing about the specifics of the confrontation without researching it properly was my error.

Well, I’m old, opinionated, and like to ride high horses; so naturally I’m prone to mistakes.

In any case I apologize to my peers for being stubborn and lazy instead of stopping and doing more research before shoving foot into mouth. :doh I'm still lazy so I can't guarantee it won't happen again, but I'll see what I can do.

As a result of the above, I correct myself to provide the more legally correct answer to the OP’s question regarding Florida Law, which is:

Yes, he loses the right to claim self-defense unless he can show that either his initial use of deadly force has caused the defender to respond with deadly force and his life is now in danger or he has demonstrated a willingness to retreat and tried to retreat but the defender continues fighting.

American · Jun 28, 2013

LowDown said:
Come to think of it, all lawyers operate out of armchairs. Oh well...

The question is, does a person lose the right to self defense if he initiates a violent encounter?

The prosecution's tac seems to be to try to paint Z as the aggressor who started the fight between himself and M.

In other words, if in the process of melee combat one combatant gains lethal advantage over the other, and the other person fears for his or her life, is that person only allowed to respond with deadly force if he or she had not initiated the encounter in the first place?

I don't think so. As I understand it, if at some point either combatant genuinely fears that he or she is going to die at the hands of his opponent then he or she has the right to use whatever means necessary to neutralize that threat.

This means that, apropos the Z-M case, none of the stuff that people are debating -- whether it was Z or M who started it; whether Z was a racist who was profiling; whether Z slapped his girlfriend around; etc. -- is relevant. The only thing that's relevant is whether M was on top of Z beating on him and Z could have reasonably feared for his life, Z pulled out the gun but M would not relent or went for the gun.

If, on the other hand, Z pulled out a gun and M immediately stopped and/or retreated but Z shot him then Z is guilty of murder.

What say you? Does the prosecution's approach make any sense?

A man is on the phone with police, what's the likelihood of him initiating a fight with someone?

year2late · Jun 28, 2013

American said:
A man is on the phone with police, what's the likelihood of him initiating a fight with someone?

Are you saying the entire interaction from in the car to "bang" was heard by the NEN ?

And I think where the issue will be "what is initiating the fight?"

Is initiating the fight the one that threw the first punch or is it someone threatening another in word or action.

I think it is the later is what jury will have to decide through NEN calls, witness accounts, and physical evidence with expert testimony in order to decide this case.

I personally have no difficulty believing the Trayvon threw the first punch. I am anxious to see how the rest of the trial unfolds.

Dapper Andy · Jun 28, 2013

CanadaJohn said:
Depends on what you consider "politely approaching" - I don't consider someone implying I may be a criminal to be very polite.

So in your view an impolite person has no legal right to self defense?

CanadaJohn · Jun 28, 2013

Dapper Andy said:
So in your view an impolite person has no legal right to self defense?

This is just getting ridiculously twisted into a nonsense discussion - if you want to know my views, they are contained in my first post on this thread.

Take care and have fun

Dapper Andy · Jun 28, 2013

CanadaJohn said:
This is just getting ridiculously twisted into a nonsense discussion - if you want to know my views, they are contained in my first post on this thread.

Take care and have fun

I'm not twisting anything.

You specifically said Zimmerman initiated the altercation by leaving his home and he forfeits his right to self defense.

The conversation is ridiculous but it's ridiculous because you have a ridiculous view. In your defense, I don't actually believe you believe what you're saying. I think you're just saying ridiculous stupid stuff to justify your views.

CanadaJohn · Jun 28, 2013

Dapper Andy said:
I'm not twisting anything.

You specifically said Zimmerman initiated the altercation by leaving his home and he forfeits his right to self defense.

The conversation is ridiculous but it's ridiculous because you have a ridiculous view. In your defense, I don't actually believe you believe what you're saying. I think you're just saying ridiculous stupid stuff to justify your views.

Sorry buddy, that's a flat out lie - I defy you to point out any post here where I referred to Zimmerman or referred to him leaving his home. This is why I say it's ridiculous - you have an agenda you want to promote and you can't view my comments outside of what promotes your agenda.

A Question For the Armchair Lawyers

Fisher

Excon

ric27

Gaius46

Jerry

Jerry

Jerry

ecofarm

global liberation

Jerry

505

Mildly Hostile

Captain Adverse

Classical Liberal Sage

American

Trump Grump Whisperer

year2late

IIJAFM

Dapper Andy

CanadaJohn

Canadian Conservative

Dapper Andy

CanadaJohn

Canadian Conservative