Robert Leider: Understanding 'Stand Your Ground'

Wall Street Journal ^ | 4/18/12 | Robert Leider

[Aunt Polgara]

The shooting of Trayvon Martin by George Zimmerman has spurred national outrage over Florida's Stand Your Ground law. Unfortunately, the discussion of this law has been marred by misinformation. Jeffrey Toobin, CNN senior legal analyst, erroneously claimed that the law "allows a disproportionate response; if someone comes at you with a fist, you can reply with a gun."

Many have asserted that in Florida anyone who believes he is in danger can use deadly force, no matter how unreasonable his belief. These perceptions of the law are wrong. As compared with other states, Florida's Stand Your Ground law is neither extreme nor an outlier.

[trappedincanuckistan]

Obviously Corey overcharged to get Zimmerman to plead out. I hope he and his lawyer resist.

[Aunt Polgara]

>>So if he mistakenly initiated something because he felt (incorrectly) he held police power, negates his self-defense defense.

I predict that will, in a nutshell, be the deciding theme of the trial.<<

Of course, the prosecution will have to prove that beyond a reasonable doubt. From the evidence made public so far, it seems very unlikely they can do that.

[petro45acp]

“...If you let your attacker beat you until it’s absolutely clear that he’s going to kill or do serious bodily harm to you then you won’t be in much shape to draw and use a weapon....”

Weren’t there reports (VERY short lived) that TM saw Z’s pistol and threatened to use it on Z? Or was that hairspray-headed newsreader fluffery?

[truth_seeker]

“Of course, the prosecution will have to prove that beyond a reasonable doubt. From the evidence made public so far, it seems very unlikely they can do that.”

I doubt all the evidence is public.

There is evidence in public, that Zimmerman pursued/followed, called the PD, was warned off, etc. Plenty for the prosecution to weave into the “initiation” necessary to negate self-defense defense.

I think the trial will present the training and authority for a police officer, versus same for a neighborhood watch volunteer captain.

It will be interesting if Zimmerman testifies in his own defense.

[TigersEye]

Weren’t there reports (VERY short lived) that TM saw Z’s pistol and threatened to use it on Z? Or was that hairspray-headed newsreader fluffery?

No, that is correct. Zimmerman's brother and father have both said that George told them that and a Sanford police officer unofficially talked about George's statement to police and said that too. It's all hearsay for now until his statement, further testimony and forensic evidence is introduced in court (or otherwise released to the public) but that has been published as George's version of events.

[Mr Rogers]

“So if he mistakenly initiated something because he felt (incorrectly) he held police power, negates his self-defense defense.”

Incorrect. Self-defense always applies under Florida law. Being a jerk is not sufficient reason for someone to kill you. If they try, your right to defend your jerk-life kicks in.

Unless he threatened Martin’s life, Martin had no justification for using lethal force against Zimmerman.

[truth_seeker]

“Self-defense always applies under Florida law.”

Are you sure, counselor?

I heard a Florida lawyer say one could NOT initiate a fight, and then later claim self-defense (stand your ground, etc).

When I first wrote by “initiate,” I mean the fact Zimmerman was following, which I expect the prosecution to claim is the initiation that will negate self-defense.

I’ll wait for the trial. I’m not a lawyer, and I don’t rush to judgement, either way.

[ironman]

The judge could grant immunity then stay his order pending appeal. Kick it to someone else.

[ironman]

776.041 Use 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.

[Mr Rogers]

Yes, I’m sure. It is specifically written that way in the law.

“776.041 Use 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.”

[Scoutmaster]

And Mr. Zimmerman will have to show that he was not the initial aggressor.

Well, Mr. Leidner's clueless and didn't take the time to all of read Chapter 776 ("Justifiable Use of Force") of Florida Statutes or he would have found out that Florida allows the use of deadly force the the initial aggressor under certain conditions.

First, Leidner apparently stopped reader at Florida Statutes 776.012(1) ("Use of force in defense of person"), which says, pertinent part:

[A] a person is justified in the use of deadly force and does not have a duty to retreat if . . . [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

If he'd continued for four more sections, he would have found Florida Statutes 770.041(2) ("Use of force by aggressor"), which reads in pertinent part:

The justification described in the preceding sections of this chapter is not available to a person who . . . 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.

So, Mr. Leidner, it's not that "Mr. Zimmerman will have to show that he was not the initial aggressor." Florida Statutes 776.041 sets circumstances under which an initial aggressor can still use deadly force.

In the early 45-minute press conference, one of Zimmerman's initial attorneys (Hal Uhrig) said that a physical altercation was necessary to trigger this - that following somebody would not. (Given that you were wrong about Florida law, and wrong when you say Zimmerman was 'instructed not to purse' Trayvon Martin, Mr. Leidner, are you certain that Zimmerman has to prove he wasn't the aggressor? Could it be that the state has to show Zimmerman was the aggressor? You're just a law school student, you know. Some of us passed the bar and think enough to read the statute before commenting on it.)

[Aunt Polgara]

>>There is evidence in public, that Zimmerman pursued/followed, called the PD, was warned off, etc. Plenty for the prosecution to weave into the “initiation” necessary to negate self-defense defense.<<

Yes, Zimmerman followed Trayvon (not illegal) and was told “you don't need to do that.” (not a legal order)

If Zimmerman hadn't gotten out of bed that morning, none of it would have happened either.

It is my opinion that the prosecution will never be able to prove beyond a reasonable doubt that Zimmerman took the first swing, which I believe is the crucial point. And Trayvon’s girlfriend actually gives credence to the theory that Trayvon took the first swing. She said in her TV interview that Trayvon asked why George was following him and George replied by asking why Trayvon was there. The girlfriend said she heard no more conversation, but only what sounded like his phone falling. The next logical thing would be a response from Trayvon. I believe that the most likely response would have been the first swing from Trayvon.

[trappedincanuckistan]

It’s going to be fun watching Corey try to make the case that Zimmerman was the initial aggressor because he left his truck.

It’ll also be fun to see her try to make the case that he remained the aggressor even though he had lost Martin.

[Scoutmaster]

Yep, Mr. Leidner, the South Florida Criminal Lawyers' Blog says:

"However, if the prosecution can show that the defendant "provoked" the incident, the Defendant loses his right to claim justifiable use of force."

That's written by Kevin F. Moot, who's a member of the Florida bar and has a criminal law practice in Florida.

You, Mr. Leider, wrote:

"And Mr. Zimmerman will have to show that he was not the initial aggressor."

You're a law student from Connecticut who didn't read the Florida Statutes on self-defense. Forgive me if I take the actual lawyer over the law student, the Florida lawyer over the Connecticut law student, and the criminal lawyer over the law student.