All that is somewhat confusing, but I think we may very well be confronted with exactly that sort of confusion with regard to the application of law in this case.
I pray this is not a violation of the rules, but I'm shifting the order of the quotes to the order I'd like to respond. If that is wrong if someone will let me know I'll be happy to move things around. There is not intent to change the meaning of the post.
First let me say this is an excellent post and raises some issues which I think will be raised in pretrail motions, preliiminary hearings, and (if it gets to trial) actually placed before the jury.
The relevant Florida Statutes can be found here -->>
- Chapter 776 - 2011 Florida Statutes - The Florida Senate
776.012 Use of force in defense of person
776.032 Immunity from criminal prosecution and civil action for justifiable use of force
776.041 Use of force by aggressor
776.012 provides that a person can use self-defense if the person reasonably believes it is called for to defend themselves (or another) against anothers use of unlawful force. A key being unlawful force. 776.032, which is the "Stand Your Ground" law, provides that someone who is executing self defense under the appropriate law (in this case 776.012) need not retreat and is immune from criminal prosecution and civil suit for doing that, except in cases where the force is used against a law enforcement officer. 776.041 however limits the use of the self defense provisions (776.012 and 776.032) if, I repeat, **IF** the individual is found to be the aggressor under certain circumstances. The self defense immunity does not apply if the individual is committing a forcible felony, it is also lost if the person is the aggressor and they failed to take advantage (as measured by a reasonable person) to escape such danger in the case of imminent danger or great bodily harm.
Now there is a couple of different ways the state could take this depending on the evidence they have accumulated that is not available to the public (such attempts may succeed for fail we don't know yet). That could include autopsy, forensic, GSR/stimpling evidence (or lack of) at the shot site on the body, unknown witness, etc. So they may try:
1. If Zimmerman acted as the aggressor and tried to illegally restrain Martin, then it can be argued that Zimmerman was performing an illegal felony (forcefully retraining another person is a felony violation of Florida Statute 782.02) and as a result was assaulting Martin which then makes it Aggravated Assault which is also a felony. Under Florida Statute 776.041 the aggressor does not have Self-defense/SYG as an affirmative defense if they were in the commission of a forceable felony.
2. A second way they could approach is to use Zimmerman's own dispacther call. Zimmerman indicated that he thought Martin made a threatening gesture with the "waistband" comment. They could argue that at that point a reasonable person would have followed police dispatcher directions not to follow an unknown person, at night, in the rain and argue that Martin had his own self-defense protections under SYG because he had an unknown person pursuing him and he had no requirement to retreat.
Personally I think the prosecution will go with some variation of #2. However if they have any direct evidence that Zimmerman was the aggressor, assaulted Martin and/or attempted to illegally restrain him - then #1 becomes a very real possibility because once Zimmerman enters into committing a forceable felony - then self-defense is no longer on the table. (Well it may be on the table at the jury trial and up to the jury to decide but they may be arguments the state could use to nullify the "self defense" claim.)
Actually , CG, Save has a point here. Self defense is what is called an "affirmative defense", which simply means the burden of proof in asserting that defense is on the defendant; BUT, (and this is critical), the standard of proof required of the defendant is NOT "beyond a reasonable doubt", but simply the "preponderance of the evidence"; that is, if the greater weight of evidence favors the defendant's affirmative defense (however slightly), it must be presumed to be so; the burden on the defense is not to prove, but to simply tip the scale. This is not a trivial distinction. Further, the defense will have the opportunity, under this Florida statute, to present a motion for dismissal of the murder charge if it can show to the satisfaction of the judge presiding that the preponderance of the evidence indicates self defense. The judge may so find, and dismiss the case, or leave the finding to a jury.
I absolutley agree with the above, often in a "self defense" defense isn't about "proving" self defense it's about establishing self defense as a possibility. If self defense is shown to be a reasonable possibility based on a preponderance of the evidence then logic says the State has not made it's case such that it reaches the "beyond a reasonable doubt" standard.
This is why I think the state will take a great deal of time examining the buildup to the actual event and establishing a highly detailed timeline and showing that Zimmerman disregarded the dispatcher's comment not to follow but not returning to the truck. The intent will be to show that Zimmerman does not qualify for a self defense defense by showing him as the aggressor and why he doesn't qualify.
We'll have to wait and see what evidence the state actually places on the table.
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Sorry to be so verbose, I have a hard time keeping things short sometimes.
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