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 ...
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.