Skip to comments.Mark O’Mara redefines ‘Stand your ground’
Posted on 02/24/2013 5:38:51 AM PST by Uncle Chip
Last August, OMara announced that he would not argue a stand your ground defense, using the same curious logic he used with me earlier this week. Whats problematic is that OMara is engaging in semantic gymnastics to avoid using the words stand your ground while availing himself of the laws most generous provision, the immunity hearing. No such thing existed for self-defense cases before SYG became law in 2005.
With a major push from the National Rifle Association (NRA), Florida amended its self-defense statute to allow potential victims to stand their ground against an assailant by removing the duty to retreat and permitting them to meet force with force, including deadly force, if they reasonably believe it is necessary to save their life. It also granted immunity from prosecution.
Stop calling it a stand your ground statute, OMara told me. We are never going to say that [this] is a stand your ground case. ...
Yet, he gave his own definition of SYG that doesnt exactly mesh with what the law says. I define stand your ground as having an opportunity to retreat and you affirmatively decide not to, he told me.
Heres what the law says:
Florida statute 776.013(3) says: (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 has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
(Excerpt) Read more at washingtonpost.com ...
Since Mark O'Mara is not defending his client under the "SYG" law, but under traditional self defense, then how can he be filing for an immunity hearing prior to trial???
He and his media buddies have conflated a number of separate principles under the moniker of "stand your ground." They use the phrase "stand your ground" to include statutory immunity, but statutory immunity could exist even if the law had a duty to retreat before resorting to force.
O'Mara is just saying that the phrase "and has no duty to retreat" has no play in the Zimmerman case.
If shooting is justified, retreat is not a viable option.
SYG just codifies this.
I don't find O'Mara's interpretation in the words of the Florida SYG law at all.
Opportunity to retreat or no opportunity to retreat, the Florida law gives one the right to use deadly force followed by immunity from prosecution.
AFAIK traditional self defense does not however provide immunity from prosecution.
Who's right and who's wrong here???
But if you are not defending your client under Florida’s SYG law, and it is that law that provides for an immunity from prosecution, then how can Mark O’Mara be filing for an immunity from prosecution hearing in April.
That is not exactly the message that O'Mara has been giving.
He has been saying all along that he is defending his client under the umbrella of traditional self defense -- not the "Justifiable Use of Force" Law.
But under traditional self defense there is no provision for an immunity hearing for immunity from civil suits.
Is he playing some sort of game here???
I expect Tray's telephone girlfriend to blow the whole thing in the end. The state lied from the beginning...first about her age...and now it seems the calls from that fateful day have disappeared. Imagine that!!
Immunity is a very broad subject. There must be a million cases of precedence. Let's see how it works in this case.
I think of Richard Jewell and the boys accused of rape. LE can be just plain dirty sometimes and this is one of them.
Remember....The drummer is/was Daddy Obama.
I don't read into that (assuming this is exactly what he's said), an intention to skip the remedy available under 776.032, the statutory immunity law.
I hope you are right because this court and this judge are not going to give him any slack on anything.
O'Mara would open himself up to a malpractice suit if he didn't obtain an immunity hearing.
That said, I think he's been too deferential, especially at the start, and especially relating to the state's duty to produce evidence. He missed arguing the 15 day deadline that the state was under, where the 15 days starts on the day he files a motion agreeing to open-book discovery. He pushed that out a good month or two, when he should have been a thorn in Bernie's side.
Likewise, he didn't argue much when Zimmerman was illegally incarcerated.
The immunity is what is really on trial here.
the law was passed as a TORT REFORM.
the trial lawyers, like the martin family lawyers, are salivating at the prospect of the return of self defense lawsuits of criminals/families of criminals suing the self defenders out of hearth and home.
And yet he's already busily making plans with the judge for the June party as if there will be no meaningful immunity hearing in April.
And yet O'Mara at this point appears to be just tossing it away.
He and the judge are already making plans for the June trial -- picking out the guest list, the number of chairs, the color of the napkins, the party favors, etc.
He should instead be laying the grounds for an appeal of the judge's unfavorable immunity hearing decision which is coming down the rail.
Capehart is correct. FL SYG law does not require retreat or backing away
As some on THC website have mentioned.....O’Mara is doing a horrible job defending Zimmerman. GZ is innocent.....but it seems the only one who does not think so is his own attorney
As for the SYG hearing.....O’Mara better do one or he should be disbarred . Even if he feels he cannot win on SYG .....the state will be forced to reveal their case.....which helps in the crim trial
GZ is being lynched....and his own attorney is bringing the rope
In the court of public opinion of reasonable people -- yes -- but not in this judge's courtroom.
The second that she gets in trouble on the stand, Angie's list will object and the judge will sustain.
The judge already ordered a mini deposition for this girlfriend for the sole purpose of finding out her address -- but the girlfriend refused to give it.
What does that tell you???
A year later and the defense still can't get the address and identity of the state's star witness from the court, the prosecution, or the witness herself.
Where is Perry Mason when you really need him???
Florida judges are reelected.
This judge is going to be subject to the alsharpton court of drama diva bullhorns.
Is there provision for self defense followed by an immunity hearing in Florida Law outside of 776.012 ... 776.032???
She has already expressed her desire for an appointment to the Florida Supreme Court and she no doubt sees her cowtowing to the Governor in this trial as her ticket to the big seat.
so we have a state attorney bucking for appelate judge, and a judge bucking for flsc.
no wonder the public has ZERO respect for the judiciary.
I fully expect at this point that every one of the Martin family including Witless 8 to lawyer up and plead the fif and have memory problems on question after question in their depositions and on the witless stand.
I hope that O’Mara is prepared for this and makes sure the cameras are running.
Video of February 22nd Hearing:
I have never understood SYG, maybe you can explain it to me.
In your home, there is an obvious aggressor and an obvious defender.
On the street, s*** starts all kinds of ways. If you are carrying, that still does not mean that you ought to walk into obvious trouble. In fact, I’ve always been taught that, when you are carrying, you should go the extra mile to stay out of trouble.
When trouble finds you, that’s different. But does SYG mean that, if you start a fight you can’t finish that you have deadly force as a backup? That doesn’t seem right.
It appears to me that there are only three things that need to be met for George Zimmerman to be granted immunity from prosecution and civil action according to those Florida statutes:
1]Was he in a place where he had a right to be???
Yes —————— on a public sidewalk of his place of residence
2]Was he engaged in any unlawful activity at the time???
No -—————— and he was even on the phone with 911 expecting them to arrive
3]Did he reasonably believe that the use of deadly force
was necessary to prevent his imminent death, great bodily harm to himself, or the imminent commission of a forcible felony.
Yes —————— as the injuries to his face and head attest along with his screams for help on the 911 calls, the eyewitness accounts that Martin was on top of him, the abrasions on Martin’s knuckles, and forensic evidence showing that Martin was on top of him at the time of the shooting.
I don’t know what more there is that this judge needs to consider — but I’m sure she will do her best to try to find it.
“does SYG mean that, if you start a fight you cant finish that you have deadly force as a backup?”
No. You are the one ground would be stood against.
In context, consider the legal concept of “felony murder”: you commit a felony, somebody dies as a consequence (heart attack from the stress, gets run over by accident, somebody shoots your co-conspirator, whatever), you are guilty of murder. Same idea re: SYG - you commit a felony, things get out of hand, someone finds reason to threaten you, you don’t get SYG because you are the threat or origin thereof.
Pardon a stupid question from someone unfamiliar with the law. Doesn't that violate the defense's right to discovery? How can this be allowed to go to trial?
In North Carolina, we were taught that SYG doesn't apply if you started the altercation.
However, if you started it and attempted to retreat, but the opponent will not let you drop the argument, it is considered a new incident and SYG may apply.
It sure does.
How can this be allowed to go to trial?
It shouldn't but this is a corrupt judge in the corrupt court system of Florida.
Here is O’Mara’s explanation of what he’s doing:
As to the “Stand Your Ground” portion, the Legislature expanded self-defense to include a right of not having to retreat before utilizing deadly force. While that right always existed in one’s home (the Castle Doctrine), the 2005 Legislature expanded it to any place where you are allowed to lawfully be. Under that portion of the statute, a person does not have to retreat before utilizing deadly force if that person has reasonable fear of imminent great bodily injury.
If the “Stand Your Ground” portion of the law was to be applied to the Zimmerman Case, even if George had an ability to retreat, he would not be required to do so before utilizing deadly force. In this particular case, George did not have an ability to retreat because he was on the ground with Trayvon Martin mounting him, striking blows, therefore the “Stand Your Ground” “benefit” given by the statute simply does not apply to the facts of George’s case: it is traditional self-defense. Of course, the immunity provision still does apply, and we will take full advantage of the immunity afforded by the Florida Legislature.
In August, we published an article called There Will Be A ‘Stand Your Ground’ Hearing in the George Zimmerman Case. The article was meant to show that we believe George Zimmerman’s act of self-defense was lawful and justified, and that he should have the benefits of prosecutorial and civil immunity offered by Statute 776. Since then, whenever we have referred to such a hearing, we have more appropriately referred to it as a Self-Defense Immunity Hearing. The Judge has set a court date of June 10 for the Zimmerman trial, and a Self-Defense Immunity Hearing is scheduled for April 22.
Here is what I don’t understand about this explanation of his:
Since “Stand Your Ground” is an easier standard to meet than traditional self defense, then why not take advantage of it??? and then add to it the fact that he couldn’t retreat even if he wanted too in order to exceed that standard.
Why choose the more difficult standard to meet???
What if this judge decides that there is not enough evidence to prove that Martin was on top of Zimmerman at the time of the shooting, and rules that Zimmerman did have the opportunity to retreat and didn’t??? I don’t put that past her.
He says that he’s not using the SYG portion of the law and yet he then says that he’s filing for an SYG immunity hearing. What???
I can see this judge dismissing this on a technicality saying that he filed under traditional self-defense and there is no immunity under that older portion of the law.
The legal standard of proof at an immunity hearing is "more likely than not," or preponderance of the evidence. The burden is on defendant to show that his use of force was justified.
Once Zimmerman produces his version of events, the burden falls to the prosecution to disprove is, and, this is important, the disproof must be done with EVIDENCE, not with speculation or mere accusations that defendant is not telling the truth.
If this judge can't figure out which account is more likely the correct one, the burden of proof at trial is harder for the prosecution to meet, as it must prove (again, using evidence) defendant's version is false, and must do so beyond a reasonable doubt.
As to O'Mara shunning the phrase "stand your ground," I think he is merely trying to avoid an appearance of arguing that Zimmerman was somehow exercising a right to stand his ground, which implies an ability to choose to retreat.
The way I read FL law, a person who starts it (a person who is the first to use or threaten the use of unlawful force) may regain the right to use force in self defense, but the person who started it is not entitled to immunity.
It is possible to be justified in shooting somebody, even if you have ZERO injuries as a result of the confrontation. If somebody pulls a gun on you, or shoots and misses, you can shoot back.
Not necessarily. What the law gives the homeowner is a presumption that the use of force was justified, but the presumption is rebuttable.
-- But does SYG mean that, if you start a fight you can't finish that you have deadly force as a backup? --
"It depends." Under Florida law, see FS 776.041 - Use of force by aggressor.
The justification described in the preceding sections of this chapter is not available to a person who:If you start a fistfight, intending to bruise your opponent, and your opponent escalates to baseball bat, samurai sword or handgun, you are allowed to defend your life.
(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.
Your examples are cogent, and I understand them.
What I don’t understand is situations that don’t exactly have an “initiator”.
Example: when I lived in Brooklyn, I used to cross the street a lot. If an armed citizen does not cross the street, and the inevitable bumping and name-calling starts, when is the threat enough to use deadly force, and does SYG imply that you were right (by the law) to walk into a situation that you knew, or should have known, would escalate?
“No duty to retreat” sounds clear, but lots of street hassles start with failure to exercise common sense and good judgement. That’s not “aggression”, but it could sometimes be “initiating”.
I understand about SYG in your home not being absolute, I was generalizing. If you kill your daughter’s boyfriend, I imagine the DA will have a few questions. If you kill three armed Amish at zero dark thirty, not so much.
The threshold legal label is "aggressor," and represents a line that amounts to undertaking or threatening unwelcome contact. Sometimes the action that represents "aggression" is left to the jury, but generally it is some sort of unwelcome contact, outside of social norms.
Trying to plant an unwelcome kiss can be shoved off - the person doing the shoving is justified, as a method of warding off unwelcome contact. But, if you are in a crowded space (store, disco [heh], airport, sidewalk) and are jostled, you probably don't have the right to use force against the person who bumped you, or touched you to let you know they were there, etc.
Name calling is not aggression, under the law. Only the threat or use of force, contact, etc. So, that "bumping" comes to mind as a possible unwelcome contact, entitling you to use force to prevent the next bump, or even the first one.
You raise an interesting quandary, discretion over being in the legal right. Being disposed to initiate use of force or even violence is used as a tool of intimidation, and the groups you describe do so with legal impunity. The law more or less allows that sort of thuggish conduct in fact.
But approaching that group, even against prudent judgment, is not initiating the use of force. You have a right to be there, and if they initiate force, you are allowed to use force to ward off their unwelcome advance. You don't have a tit-for-tat right, nor a right to use force as revenge.
Serino tries to make the legal test into "could have avoided the outcome." That legal test has all manner of pitfall, and looks a bit like your question about "initiating" action that leads to a bad outcome. The law draws a bright line that roughly resembles a right to go about your business, and grants a legal privilege to use force to ward off contact that would be illegal (assault or battery). The threshold to allow deadly force is (reasonable - meaning the jury decides) belief that such force is necessary to avoid serious injury or death.
There is nothing relating to self defense outside of Chapter 776, but the timing of a grant of immunity CAN come post trial!
State v. Jarkas Grant of 776.032 Immunity (Dec 5, 2011)
This is a post trial grant of immunity. Decision went to defendant due to absence of other eyewitness, and discounting of the state's circumstantial evidence.
If the Stand Your Ground portion of the law was to be applied to the Zimmerman Case, even if George had an ability to retreat, he would not be required to do so before utilizing deadly force.
If???? O'Mara is separating SYG from self defense.
In this particular case, George did not have an ability to retreat because he was on the ground with Trayvon Martin mounting him, striking blows, therefore the Stand Your Ground benefit given by the statute simply does not apply to the facts of Georges case: it is traditional self-defense.
O'Mara is framing this as one or the other. As I see it, it is both -- both SYG and traditional self defense. He did not have the duty to retreat and he did not have the ability to retreat.
I get the feeling that O'Mara is going soft on the facts and the law here and willing to grant the prosecution that George might have instigated his own thugging -- and that's why he's talking self defense not SYG.
IOW, he is saying that "stand your ground" is limited to the phrase "and has no duty to retreat." The remaining statutory language is sufficient to find immunity, in this case. Either way, Zimmerman's case presents the exercise of lawful force in self-defense.
Said another way, even if the law DID include a duty to retreat, Zimmerman would prevail. Keep in mind that "duty to retreat" doesn't attach at every moment. It exists only when confronted with force. If the confrontation with force renders a person unable to retreat, the law will not hold them to a duty to retreat. The law will not require a person to do what the person cannot do. The clock starts with the first blow, not with Zimmerman getting out of his truck.
And I say this because O’Mara is very careful about his choice of words and they should not be taken lightly.
He is signalling his willingness to accept a deal from the prosecution that may play out in the courtroom.
He is willing to consent that his client was equally to blame for the initial assault by not retreating back to his truck. But later when he wanted to retreat, he was unable to since Martin would not let up.
This would grant his client an acquittal under the statute but not immunity from future civil action. And future civil action is what this whole thing is all about.
If the use of force was justified, and Zimmerman was not the aggressor, then he is entitled to immunity. "Aggressor" is the person who initiates the use of force. I don;t think O'Mara is willing to cast Zimmerman into the role of aggressor.
I have plenty of criticism for O'Mara, but if the court does not grant immunity, it won't be because O'Mara (Zimmerman) accepts the responsibility for Martin throwing the first punch.
Absence of immunity will be a matter of law, decided first by the trial court, and then either upheld or reversed on appeal. The evidence will be what it is, and the court will not be able to dodge stating its own conclusion based on the evidence.
But the prosecution will argue that he instigated it by following him and even after the initial punch he could have retreated at any time until the last 40 seconds of the "fight" when Martin was on top of him. So he was able to retreat until the last 40 seconds.
Since you know that this argument is coming, then why not avail your client of both from start to finish -- the full statute. He had no duty to retreat at the time the assault began and no ability to retreat as the assault played out.
Use both arguments -- not one or the other. Why distinguish one from the other and then go with the harder standard to meet???
There is zero evidence that Zimmerman could have retreated after the first punch; or that Zimmerman threw the first punch. The prosecution can't substitute "could have" for evidence. It can't even substitute circumstantial evidence for evidence.
Furthermore, it is a black letter error of law to assert that the act of following (even it is intended to close distance) is provocation that justifies the use of force. The prosecution can argue it, and the trial court might even accept it. But such would be clear error.
The fact that O'Mara is now saying that Zimmerman could not retreat is not apt to change, even if the prosecution says that Zimmerman could retreat, and should have retreated.
Your concern is premised on the prosecution being able to somehow prevail by asserting that the law includes a duty to retreat. That would be a risible argument from the prosecution, faced with the plain language of the law.
O'Mara is not prevented from countering a prosecution assertion of a bogus legal theory (e.g., there is a duty to retreat), just because he says, now, that his client was unable to retreat.
Mara makes no sense. If a perp simply closes off all retreat options then civil liability still exists?
Putting up resistance prior to use of deadly force pretty must states, “i want to leave”.
He is overthinking this.