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 ...
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.