You keep posting the same law, and I keep pointing out you are misreading it. If you don't believe me, ask a fracking lawyer, then come back and apologize for being stupid.
Good Afternoon...
.....................<<knuckle crack>> Let's have a discussion.
You keep claiming that I've misread it so let's discuss this as adults without the normal ad hominem barbs that some try to insert. I don't need a lawyer as I can read and comprehend the written word quite well. If you feel that my understanding of the law is in error, please provide the details. If you would like a lawyers review of the law, feel free to PM Liability (who is a lawyer) and ask him to post a review of my analysis. I've asked him a few questions here and there and he's been most helpful in expanding our understanding of points of law.
All references to Florida Statutes can be found through the following links were there are Chapter sections with links to the specific law:
In the past, as you've quoted previously, I've provided three possible scenarios and my opinion of how the law applies to those scenarios. First we have Martin as the aggressor, in such a case Zimmerman is fully justified in the use of self defense at the point where he feared for his life or great bodily injury (from here on referring to self defense, the lethal force in cases of possible death of great bodily injury will be an implied understanding). The second scenario involved Zimmerman as what I will refer to as a simple aggressor. That would be the case if Zimmerman was the aggressor but his aggressive actions did not rise to a felony, for example if his actions were simple assault. In such a case, Zimmerman would retrain his self defense immunity as simple assault under Florida law is a misdemeanor and not a felony, unless he was shown to have an opportunity to escape and declined the opportunity (as defined under Florida Law 776.041). The third scenario involved Zimmerman as an aggressor, but in this case his actions rose to the level of a forcible felony, in such cases Florida Law 776.041 kicks in which removes the self defense immunity. Florida Law 776.08 (Forcible Felony) defines what conditions are counted as a forcible felony - aggravated assault is one of those conditions. Just as an example off the top of my head, Zimmerman could have committed a forcible felony by simple assault and/or battery (threatening Martin or grabbing him, a misdemeanor) [Florida Law 784.011] coupled with unlawful detention (See END NOTE) (Florida Law 787.02, a felony) - the combination of simple assault with a felony makes it aggravated assault (784.02), a forcible felony. On the other hand Zimmerman could have committed a forcible felony through threatening Martin and the display of his firearm (either out of or in the holster) which again would rise to the level of aggravated assault.
Under both the second and third conditions, Zimmerman would be required to make an affirmative defense on his self defense claims. One can assume that such a defense would be built around his statements alone as to who initiated hostilities since there are no witnesses to the beginning of the struggle and the evidence of his injuries (which could be a bloody nose or broken nose and the lacerations on the back of his head) and at that time he feared for his life. Which is a very reasonable self defense claim since he had the injuries. However the burden of proof would then shift to the prosecution to show that regardless of his injuries obtained during the fight, that Zimmerman lost his self defense immunity because he started the fight and: (a) started it with the commission of a forcible felony, or (b) was presented with a chance of escape that a reasonable man would have taken and choose to pursue hostilities. My understanding is that this would actually be a pretrial hearing before Judge Lester, but I could be wrong on that. If Zimmerman makes a good case and the prosecution makes a bad case, then Judge Lester can dismiss the charges.
So now let's review the law and you can respond by showing me where my analysis is faulty.
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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.
776.041 Use of force by aggressor
I think this is pretty self explainitory in that this section of the law applies to those individuals who are using force and they are the aggressor. A little ambigious in terms of verbage, I think something a little clearer would have been warranted, such as "Loss of self defense immunity by an aggressor", but hey - I didn't write the law.
The justification described in the preceding sections of this chapter is not available to a person who:
This is an important part, it defines that this section of the law REMOVES the immunity status for self defense as defined in the applicable previous sections of the law which is Chapter 776 (Justifiable Use of Force). The preceding sections of the law that this part nullifies for the aggressor are:
- 776.012 Use of force in defense of person.
- 776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.
- 776.031 Use of force in defense of others.
- 776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
So this section of the law removes the previously defined self defense immunity from prosecution for someone who meets the conditions that will be described in the next sections.
What part am I missing?
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony;
Section (1) defines the first of two conditions under which a person who is the aggressor can lose their immunity from prosecution in a situation where they claim self defense.
If the person is attempting to commit, is committing, or is attempting to escape from the commission of a forcible felony and claims self defense, that claim is nullified because of the felonious actions of the aggressor.
What part am I missing or not understanding here?
"Or" is actually a very important component of the law for being only two letters long. It designates that the boolean logic function of "or" here is to be applied when interpreting the construction of the law. The "or" functions says that the meeting of either of the two (or more) conditions described satisfies the logic for truth (boolean truth) and the requirements for that outcome are met. Simply, it means that if an individual satisfies the condition of Section (1), then self defense immunity is removed. Also, if an individual satisfies the condition of Section (2), then self defense immunity is removed. Use of the "or" function does not mean that the individual must meet the conditions of both sections before self defense immunity is nullified.
What part am I missing or not understanding here?
(2) Initially provokes the use of force against himself or herself, unless:
Section (2) provides that a person does lose immunity from a self defense claim if they are the initial aggressor, however it adds an "unless" which are conditions under which the self defense immunity is retained. Those conditions then are outline in the next two sub-sections. The idea is that self defense immunity is lost, however it can be restored.
What part am I missing or not understanding here?
(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;
Section (2)(a) provides that if a person is the initial aggressor and has lost immunity from prosecution under the self defense statutes that they can regain the lost self defense immunity if the altercation escalates to the point where they fear great bodily injury or death. For example, I grab someone (I'm the initial aggressor with simple assault). The individual pulls a knife escalating the hostilities and now I fear death or great bodily injury, self defense is an option and can be restored if I have not been presented with a means escape and have attempted to take advantage of it or if no means of escape presented itself.
Section (2)(a) does not restore immunity lost under Section (1) because of the "or" function, loss of immunity still is in force if forcible felony applies.
What part am I missing or not understanding here?
Again the "or" function applies between Sections (2)(a) and (2)(b) as either can restore self defense immunity as long as immunity wasn't lost under Section (1). If Section (1) is satisfied then the conditions required are "true" (boolean logic "true") and self defense is lost.
(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.;
Section (2)(b) provides that if the person subject to the original aggression by the assailant (person A) attempts to withdraw and makes it known to the original aggressor (person B) that they are trying to withdraw and the original assailant (person B) continues to prosecute the hostilities - that person B does not regain a self defense immunity if person A then gains the upper hand and using force (including lethal force) to defend them self. For example I mug someone, that someone is able to push me away and tries to run or backs away. I ignore their attempt to end hostilities and reengage the attack. The person I've attempted to mug ends up defending against my re-engagement and proceeds to start kicking my butt to the point where I fear death or great bodily injury. Since they attempted to withdraw, if I were to pull a knife and stab the person to death, I could not claim self defense immunity even though they were winning the fight.
However, Section (2)(b) does not restore immunity lost under Section (1) because of the "or" function, loss of immunity still is in force if forcible felony applies.
What part am I missing or not understanding here?
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END NOTE:
When I mentioned unlawful detention as a possible contributing factor towards establishing a forcible felony, the the claim was made - basically - that "Oh, he can just claim Citizen's Arrest". As was pointed out, Citizen's Arrest provides for the detention of felons so that the police can be called and arrive on scene and take possession of the individual. **IF** the state were to try to remove self defense immunity under 776.041 (which they would have a high burden of proving and public information suggests they don't have the proof) and then the defense were to attempt to counter with a Citizen's Arrest claim, then - IMHO - that would be a disaster. Why? Nothing in the dispatcher call indicated that Martin was in the process of committing a felony. Zimmerman's own words on tape would come back to haunt him. If detailed statements, as of yet not released, to the police that night did not include descriptions of felonious activity by Martin prior to hostilities and later Zimmerman claimed there were, then that would be a huge contradiction. The prosecution would jump on that.
[DISCLAIMER: The above post in no way is trying to impugn Zimmerman; it is simply intended as a discussion of possible scenarios and discussion on the construct of the law.]
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