Yesterday I reported that Mark O’Mara, attorney for George Zimmerman, had indicated that the Zimmerman case was not really a “stand your ground” case, but instead a case of “self defense.” I discussed the Florida statutes related to stand your ground law and explained why they probably didn’t apply. This morning I refer you to an article by Eugene Volokh from the UCLA School of Law who sets out the legal analysis of why the “Stand Your Ground” law doesn’t apply in this case. Maybe Mark O’Mara read this article too.
The sad conclusion reached yesterday was that if Martin had hit Zimmerman first, that “touching” might be considered a “battery” under Florida law, and that Zimmerman might justify his killing of Martin by asserting “self-defense” as his excuse. I was too quick to buy into O’Mara’s argument. Having lost sleep over that conclusion, which seemed to be an unjust result, further research has uncovered additional Florida statutes that more appropriately address the facts of this case. A correct analysis of the applicable Florida law indicates Zimmerman was not justified in the shooting of Martin, and he should spend the rest of his life in jail.
Assault is a crime, and the reason that the prosecuting attorney may prevail in her claims against George Zimmerman. There are two crimes of “assault” under Florida law.
1. A “simple assault” if defined under Section 784.011 of the Florida Statutes. An assault is different than a battery. An assault is a threat, and a battery is an unlawful touching. A “simple assault” under Florida law occurs when a person by “word or act, makes an intentional, unlawful threat to commit violence towards another person and the person making the threat has the apparent ability to carry out the threat, and the person does some act which creates a well-founded fear in the other person that such violence is imminent. “ To prove a simple assault the prosecuting attorney must prove three elements:
1. the accused intentionally and unlawfully threatened, by word or act, to do violence to the alleged victim,
2. At the time the threat was made, the accused appeared to have the ability to carry out the threat, and
3. the accused’s threat created in the mind of the alleged victim a well-founded fear that the violence was about to take place.
When we recall the phone call between Trayvon Martin and his girlfriend, it is clear that Trayvon Martin saw, and was scared of George Zimmerman.
Whatever we believe about the events of that fateful evening, it seems undisputed that Martin was fearful of Zimmerman. The fact that Martin was killed is evidence that his fear was “well founded.” Zimmerman was surely guilty of , at least, a “simple assualt,’ which is a misdemeanor under Florida law.
Florida law also has a crime of “Aggravated Assault” which is a felony. Section 784.021 expressly sets out the elements of an “aggravated assault” which expressly includes the commission of an assault with a deadly weapon without the intent to kill. George Zimmerman committed an “assault” on Trayvon Martin, and he had a deadly weapon in his possession. Thus it seems that George Zimmerman committed an aggravated assault on Trayvon Martin, and Martin has the right to use “reasonable force” in defending himself from this assault. Hitting Zimmerman in the face, if he did, would seem to be reasonable force when used against a person carrying a loaded gun, and chasing you. Thus the self defense statutes of Florida should provide a defense to Martin for hitting Zimmerman, if he did. In the absence of an unlawful act was being committed against Zimmerman, the traditional notion of “self-defense” should not apply to Zimmerman. If Martin hit Zimmerman, that would have been a lawful act, as Martin was acting in self-defense as a result of the assault by Zimmerman.
Moreover, there is an express provision in Florida law that precludes the use of the “self-defense” claim by anyone who “initially provokes the use of force against himself.” Florida statutes 776.041 expressly provides that the provoker can only regain self-defense rights if:
“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 (2)(a)
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….
There is no indication that Zimmerman believed that he was in danger of death or great bodily harm while driving in his car. He failed to exhaust reasonable means to escape any danger that might have been presented by a black teen wearing a hoodie in the rain. Zimmerman never retreated or tried to remove himself from any danger. If Zimmerman was fearful that Martin was going to put him in imminent danger of death or great bodily harm, then it was incumbent on Zimmerman to retreat to, or stay his car, as the 9-11 responder told him to do. Zimmerman was told the police were on the way. Zimmerman’s only reason for getting out of the car, was not because he was fearful that Martin would ambush him in the car. Instead Zimmerman wanted to deal with Martin as he saw fit, before the police arrived.
An article by John Timoney, a former Miami police chief, Philadelphia police commissioner, deputy police commissioner of New York, and senior police adviser to the Bahrain Minister of the Interior, explains that reality of the fear that people like Trayvon Martin feel every day. On March 23, 2012, Mr.Timoney explained:
“ During one debate, one of the law’s proponents suggested that if a citizen felt threatened in a public space, he should not have to retreat and should be able to meet force with force. I pointed out that citizens feel threatened all the time, whether it’s from the approach of an aggressive panhandler or squeegee pest or even just walking down a poorly lighted street at night. In tightly congested urban areas, public encounters can be threatening; a look, a physical bump, a leer, someone you think may be following you. This is part of urban life. You learn to navigate threatening settings without resorting to force. Retreating is always the best option.” Of course, Martin was fearful of Zimmerman. Of course Zimmerman wanted to assert his dominance over Martin before the police arrived.
In conclusion, it is clear why O’Mara feels that “stand your ground” doesn’t applyto George Zimmerman. While O’Mara may feel that “self defense” offers Zimmerman a better chance of being acquitted, it seems unlikely that a jury would determine that Zimmerman used “every reasonable means” to escape the danger that he claims was presented by Trayvon Martin. Zimmerman was the aggressor. Martin was the victim. “Self defense” in Florida did not authorize George Zimmerman to take the life of Trayvon Martin.