Very true, if Martin was shown to have attacked Zimmerman - then SYG isn't really an issue, it's purely a case of self defense. It may or it may not, depending on preceding actions by Martin and/or Zimmerman.
If I'm understanding you correctly, and please correct me if I'm wrong - I think you are saying that at the point Martin supposedly was beating Zimmerman's head on the ground - that self defense immunity applies.
I disagree. Florida Statute 776.041 holds that an aggressor loses self defense immunity if a fight escalates under certain circumstances. Prior to that point in time the state (is expected) to make a case that Zimmerman was the aggressor and acted in unlawful manner nullifying his self defense immunity later in time for when they were on the ground and Zimmerman shot Martin and so is legally liable because of his preceding actions for the results that occurred.
I'm not saying they can do it, I'm saying that it appears that that will be the avenue they take. Until the self defense hearing and later trial, we won't know. At that point we should see a clearer picture of all the evidence including Zimmerman's statements to the police that night and his video reenactment. Then they can be compared with the forensic and autopsy evidence to see if they either support or refute Zimmerman's story(ies).
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If Martin is on top of Zimmerman, cracking Z's noggin into the concrete, placing Z in reasonable fear of imminent great bodily harm, Z is entitled to defend himself. Period.
Sorry, it's not "Period".
Under Florida Law, the event's leading up to that point are a factor to be considered.
And if the "State" does wish to make the case that Z was the supposed "initial aggressor," the evidence for that position has not yet been revealed.
I agree, to a degree. No "smoking gun" evidence has been released. However some of the evidence that has been released can be used by the state to undermine Zimmerman's story. For example, the 7-11 video shows no signs of "suspicious" or "drug induced behavior". The bullet path isn't consistent with Zimmerman shoting "up" into Martin. And lack of GSR could be indicative of a greater distance between the two based on an extended arm discharge of the firearm. Then of course we haven't seen the "clubhouse video" listed on the evidence list. If from security cameras and it shows no suspicious activity by Martin, then the very basis of Zimmerman's initial call and his description of events becomes suspect (and on the other hand if it does show suspicious behavior, it adds credibility to Zimmerman's story).
But even if Z HAD been some kind of initial aggressor, his right of self defense would not necessarily terminate forever just because of that. If an initial aggressor has ceased his alleged aggression, then there would be no zero "justification" for the other person to continue to pummel him. If the pummeling nonetheless continues, guess what? The supposed "initial" aggressor can proceed to defend himself. The law of justification kind of mirrors the human instinct for survival.
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.
Not the way I read it.
The opening paragraph clearly indicates that the provisions of 776.041 allow for loss of self defense immunity (the preceding paragraphs in the law).
Paragraph "(1)" says the immunity is permanently lost if the individual was in the act of a forcible felony. Aggravated Assault under Florida Law is a forcible felony and would result either by : (a) simple assault coupled with attempted unlawful detention, OR (b) assault coupled with the use of a weapon. Assault need not be physical violence, assault can be conveyed through word or intent, which is different than battery which requires a physical action.
Paragraph "(2)" notes that if the initial aggressor had an opportunity to retreat once hostilities are started and fails to do so, then they also lose self defense immunity. This is were the state could attempt to use the forensic lack of GSR on Zimmerman's jacket and/or shirt to indicate that a straight arm extension was present at the time of firing the weapon which would indicate a greater distance between the two. If Zimmerman had pushed Martin off, then pulled his gun and fired - he would have not have taken advantage of an avenue to disengage.
Paragraph "(1)" and "(2)" are joined by an "or", which means loss of the self defense immunities present in the preceding paragraphs can be lost under either paragraph.
Again though, those are scenario's which don't apply **IF** the defense were to show Martin was the initial aggressor.
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