GZ and the Immunity Hearing - Dont let O'Mara confuse you

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GZ and the Immunity Hearing - Dont let O'Mara confuse you

Post by CherokeeNative on Mon Feb 18, 2013 6:11 pm

Picture this scene: George Zimmerman and Mark O’Mara are sitting at the defense table intently looking at lead prosecutor Bernie de la Ronda as he approaches the podium, acknowledges the court, looks at the defense table, acknowledges their presence, paces a few steps from the podium and finally turns to the jury and just before his lips part to say the first word, O’Mara holds his breath. But wait, what are the laws under which Zimmerman is claiming self-defense?

What will come out of Bernie's mouth at this point is unknown, but we can look to Florida law and the facts and evidence and garner a pretty good idea.

O'Mara has gone on the record stating that he will not be defending Zimmerman under the SYG law, but that instead, he will be relying on the general self-defense statutes. This has confused many laypersons for good reason. As you can see from reading the below statute, § 776.032 is an immunity statute - it does not define what constitutes self-defense or under what circumstances the use of deadly force is allowable, but instead provides that one who uses force must qualify with other statutes in order to justify reliance upon § 776.032's immunity.

SYG Statute:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Florida Statutes §§ 776.012, 776.013, 776.031. and 776.032 all became effective on October 1, 2005. These four statutes are commonly referred to as Florida's "Stand Your Ground Law". See 2005 Fla. Laws 199, 202. Under the Florida Statutes, Chapter 776, "Justifiable Use of Force" the six statutes below are the only self-defense laws that could possibly apply to Zimmerman's case:

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.
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
776.041 Use of force by aggressor.
776.06 Deadly force.
776.08 Forcible felony.

As you can see from the above list, all of the Stand Your Ground laws are applicable to Zimmerman's case with the exception of 776.032, Use of Force in Defense of Others. What O'Mara will be relying on in addition to the Stand Your Ground laws is § 776.041, Use of Force by Aggressor.

The reason O'Mara was so vague in his description of how his client will be defended rests with the fact that he cannot bring himself to admit in public, in front of rolling cameras and live tee vee, that Zimmerman's conduct the night of February 26, 2012, amounted to what Florida law defines as the "aggressor." To make such an admission would go against the defense team's mantra and ongoing media tour to portray Zimmerman anything but a vigilante racist who murdered a young teenage boy who was doing nothing but walking home armed only with a cell phone, some pocket change, Arizona drink and some Skittles. That the defense team has taken this approach in dealing with the public should be a strong indication of how they will proceed to use smoke and mirrors to fool the jurors who will ultimately be judging Zimmerman. I assure you, it will be anything but a search for the truth.

In the meantime, a review of the above statutes and their application to this case will make it clear that the reason O'Mara is trying to delay moving forward is because they are still trying to find that elusive piece of evidence that will absolve his client and allow him to bask in the glory of being herald as the unconventional attorney who freed the most hated man in America. Gag me with a spoon is my first thought and then, yeah, good luck with that is my final thought.

Bernie has two choices: he can present to the jury that Zimmerman was engaged in a wrongful act just as he encountered Trayvon or he can show that Zimmerman was the first aggressor. These two choices have different implications and he can argue both, and the evidence he will use to convey either theory to the jury would essentially be the same. So what does this all mean? First, let me make clear that this rant is focusing on the legal arguments under Florida's self-defense laws as it applies to the facts and evidence in this case; it does not focus on the State's burden of proving Murder in the Second Degree and what facts and evidence will be used to win such a conviction.

A defendant claiming immunity under the title of “Stand Your Ground,” must demonstrate by a preponderance of the evidence that he or she is immune from prosecution. Horn v. State, 17 So. 3d 836, 839 (Fla. 2d DCA 2009). Zimmerman may claim immunity generally under § 776.032, by way of an immunity hearing; but failing that, at trial he will make claim to self-defense under § 776.012 and § 776.013 . Subsection (1) of § 776.013 is inapplicable because the incident did not occur in “a dwelling, residence, or occupied vehicle.” See Fla. Stat. § 776.013(1) (2011). Rather, because Zimmerman will most likely claim fear of imminent death or great bodily harm to himself while in a place other than a dwelling, residence, or vehicle, the applicable statutes would be § 776.012 and § 776.013(3).

§ 776.012 provides in full that:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

§776.013 provides in full that:

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
Wrongful act

The first choice involves showing that George Zimmerman was engaged in wrongful activity just as he encountered Trayvon Trayvon on that dark and rainy night. This simply means that the prosecution would have to present evidence that George Zimmerman did something wrongful within the purview of § 776.013 of the Florida Statutes. Bernie will likely show that George Zimmerman, the 28 year old “self-appointed” neighborhood watch captain, who has sought on more than one occasion to “solidify [his] interest in law enforcement,” intended to capture and detain the “punk/asshole” (Trayvon) to keep him from getting away from the imminent arrival of the police.

Bernie will likely begin his case by using the fact that Zimmerman took affirmative steps to “protect his community” at all costs, perhaps enough to rise to the level whereby local law enforcement would take notice of his efforts. For instance, he formed a community watch, went on several ride-alongs with the Sanford Police Department, called the police numerous times to report suspicious people and voluntarily followed Trayvon even to the point where he got out of his vehicle to pursue him on foot despite a dispatcher’s plea to cease his pursuit. Undoubtedly Zimmerman was so convinced that Trayvon was a drugged-out criminal on the prowl for a smash-and-grab operation that he called the police. On that call with dispatch Zimmerman can be heard saying words of affirmation such as “yep” and “uh-huh,” after stating his reasons for suspecting Trayvon was up to no good and possibly about to break into an unsecured home. It was as if he was rationalizing and therefore self-justifying the actions he was about to take.

In addition to his suspicions about Trayvon, Zimmerman thought it necessary to mention Trayvon was acting suspicious, had his hand in his waistband and that "he's on drugs or something." A few seconds later, Zimmerman states with surety that Trayvon indeed had something in his hands and made a plea to have officers come immediately. This demonstrates to the reasonable person that Zimmerman believed that Trayvon had a weapon of some sort and that Zimmerman had reason to be at least cautious if he were to confront Trayvon. This “reasonable belief” that Trayvon was carrying a weapon is heightened by the fact that it was George carrying the only weapon. In other words George was ascribing his own thoughts, feelings, and attitudes to Trayvon, a term psychologists call projecting.

Understanding the state of mind of George at this point is an important part of the prosecution making its case to the jury. The question that now remains is why would George get out of the safety of vehicle to pursue an up to no good Trayvon on a dark and rainy night who, in George’s mind, may be carrying a weapon in his waistband. Here is where the fireworks begin because I will bet that this is where the defense team will try to combat this question via an interview with Sean Hannity. Unfortunately, that interview is tainted.

From this point Bernie has a few choices based on the evidence he has gathered. And depending on that evidence, he can likely show the jury that Zimmerman was engaged in wrongful activity either by detaining Trayvon against his will and/or brandishing his weapon, or committing an assault and battery by stalking. All are more than likely to be wrongful under § 776.013 of the Florida Statutes. The first would be false imprisonment/arrest and the other two would be felony aggravated assault and first degree misdemeanor.

Bernie will play the NEN call and point out the fact that when Zimmerman says, "shit, he's running" followed with Zimmerman immediately exiting his car and the sounds of Zimmerman panting and the rushing sounds of air, the dispatcher hears what we all hear that Zimmerman is in hot pursuit of Trayvon and asks Zimmerman, "are you following him?" with Zimmerman responding, "yes." The dispatcher immediately says, "okay, we don't need you to do that" and Zimmerman response "okay" but that doesn't stop Zimmerman as we can hear that he continues to run for another few seconds…most likely until he reached the "T" to the dogpath. I suspect that they will present evidence of the sound of Zimmerman chamber checking his gun on the NEN call. It is not unreasonable to get to this point if the evidence is weighed and reasonable inferences are drawn. Bernie will also play that part of the NEN call where Zimmerman agrees to meet up with LE at the mailboxes only to change his plans when he appears to become distracted and tells dispatch to just have the Officer call him when he is in the vicinity and Zimmerman will tell him where he is. Bernie will tell the jury that approximately 2.5 minutes are missing from the time the disconnect with NEN and the first 911 call, the witness who saw a fleeting glance of one or two people running from South to North, one with a flashlight and they will use DeeDee's testimony that she heard Trayvon say, "get off, get off."
According to § 787.02 of the Florida statutes false imprisonment “means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” Even if the unlawful restraint were to last a mere second, under Florida law it would still be classified as false imprisonment. Trayvon was on his way to his father’s girlfriend's place to watch the NBA all-star game with his younger soon-to-be step-brother. Ironically it was Zimmerman himself who stated Trayvon took off running after he was most likely spooked from being followed on a dark rainy and lonely night. So it is an undisputed fact Trayvon did not, by any means, want to be confronted or detained by Zimmerman.

At common law a person (arrestor) may detain another (arrestee) against their will, if the arrestee has in fact committed a misdemeanor that rises to the level of breaching the peace and it was committed in the presence of the arrestor. An arrestor can also detain an arrestee against their will if the arrestee has in fact committed a felony even if the arrestee did not commit the felony in the arrestor’s presence. This privilege applies to private persons who are not law enforcement or something similar such as a shopkeeper or security officer. Zimmerman for all purposes was acting as a private individual. Thus the only way Zimmerman would be able to detain Trayvon without committing a wrongful act is if Trayvon committed a misdemeanor that breaches the peace in his presence or Trayvon committed a felony and Zimmerman is aware of it. None of these factors apply .

After weighing the competing interests of Trayvon and Zimmerman, so to speak, a reasonable person can infer the motives of both Trayvon and Zimmerman based on the evidence. Trayvon’s motivation was to seek safety and return home because not only was he in a neighborhood he did not know, but a man whom he has never seen or met before was watching him and following him in a vehicle while alone on a dark rainy night. On the other hand Zimmerman, pressed with a series of break-ins in his neighborhood and his conviction that Trayvon was a fleeing threat, his motivation was to make sure the police captured the criminal Trayvon, because “those assholes always get away.”

On the second point when the facts are viewed in its entirety, was it reasonable for Zimmerman, armed with a pistol, to get out of the safety of his vehicle to pursue someone he believes is a burglar with his hand in his waistband (an odd term to begin with - waistband is often used in conjunction with guns) on a dark and rainy night without his gun drawn? Was it reasonable for any armed individual to pursue a stranger in the dark they just reported to the police on the suspicion of that have or is about to commit a felony without at least having their weapon in a ready position? More importantly how was Zimmerman able to catch, detain or cut off Trayvon’s escape? We know that Trayvon told DeeDee that this creepy man was coming closer to Trayvon. This is in direct contrast to Zimmerman's claim that Trayvon jumped out of the bushes. Moreover, according to Zimmerman’s own statement he never threw a punch, could it be because a gun was in his hand and a struggle ensued over control of that weapon? As Serino asked Zimmerman, what would make Trayvon go ballistic when just moments earlier he was running and attempting to avoid Zimmerman? Serino even asks Zimmerman whether he is sure that Trayvon did not see his gun. It's not a far leap to believe that this is what occurred.

All the prosecution has to show is some restraint against the will of another. The evidence seems to point to a scared Trayvon running away from Zimmerman. Zimmerman states Trayvon ran and DeeDee confirms that Trayvon was afraid. There is a witness who states that she saw, out of the corner of her eye, one or more persons running from South to North on the dog walk, one with a flashlight. We know that Zimmerman never attempted to alleviate the tension Trayvon may have been feeling at being stalked because Zimmerman stated he didn't. Obviously Zimmerman wasn’t inquiring like one would your local gas station attendant, "hey can you give me directions?" In fact, Zimmerman admits that when Trayvon questioned him, he did not tell Trayvon he was a member of the NWP, but instead reached for his cell phone. DeeDee confirms this exchange, although the wording is different and therefore the context of how it occurred. Zimmerman claims that Trayvon appeared from out of the bushes and said, "Yo, you got a problem?" and he responded, "No, I don't have a problem." This is Zimmerman's attempt to make Trayvon the aggressor. DeeDee claims Trayvon told her the creepy man was getting closer, and she heard Trayvon say, "why are you following me?" and that the man responded, "what are you doing around here?" The evidence suggests that Zimmerman believed Trayvon was a dangerous criminal and he did not want him to escape (police) capture. DeeDee confirms this suggestion by stating that she heard what sounded like pushing, with Trayvon saying, "get off, get off." DeeDee's testimony pretty much proves that it was Zimmerman who continued to hunt Trayvon down, and as such was the aggressor.

From this evidence, it is reasonable to infer that Zimmerman initiated/attempted a citizen’s arrest. A citizen’s arrest falls under false imprisonment – all you need to do is attempt to hold a person until police arrives. There is no privilege for mistake of fact on a citizen’s arrest afforded to private individuals.

Case law is scarce as to what constitutes “unlawful activity” for the purposes of § 776.013(3), but a crime of aggravated assault constitutes a forceable felony, and the crime of stalking constitutes "unlawful activity" as intended by the statutes. It is a first-degree misdemeanor to harass by engaging in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. "Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose Fla. Stat. § 784.048(a).

As explained, Defendant cannot prove that he acted lawfully during the incident. According to Zimmerman's own admissions, he followed Trayvon in his vehicle, and when Trayvon attempted to run to get away from him, Zimmerman exited his vehicle to chase after him. Zimmerman admits following after Trayvon to the NEN dispatcher. DeeDee confirms this as well and further confirms that Trayvon was afraid, which is a form of emotional distress and harassment. Zimmerman withdrew his plan to meet the patrol officer at the mailboxes as originally agreed upon and told the dispatcher to have the officer call him when he arrived, leaving one to believe that Zimmerman was going to pursue Trayvon. One witness has stated that she saw two people, one chasing the other from South to North leaving a question of fact as to whether or not Zimmerman located and chased Trayvon towards the area where he was ultimately shot.

Now, at a SYG or immunity hearing all that is necessary to overcome such a claim, the prosecution does not have to prove Zimmerman imprisoned Trayvon beyond a reasonable doubt, he’s not being charged with false imprisonment, they just have to prove that he imprisoned him above the preponderance of the evidence standard and below the clear and convincing standard — which is by competent substantial evidence. If the prosecution can establish that Zimmerman attempted to detain Trayvon, anything that Trayvon did to get away would constitute Trayvon legally self-defending himself.

First Aggressor

The second legal argument that may be advanced by the prosecution is characterizing Zimmerman as the first aggressor. The First Aggressor Rule is a rather simple common law rule that says “a defendant who provokes an encounter as a result of which he finds it necessary to use deadly force to defend himself, is guilty of an unlawful homicide and cannot claim that he acted in self-defense.” Wharton’s Criminal Law, Sec. 136 Provocation by Defendant. See also Wallace v. United States, 162 US 466 (1896).

Florida has codified the First Aggressor Rule into Florida Statute 776.041(2) (Use of force by aggressor), which states: “The justification [to use self-defense] is not available to a person who initially provokes the use of force against himself or herself.”
The justifications for use of force will not apply where the evidence establishes that the defendant initially provoked violence against him- or herself. To claim self-defense in such a scenario, Section 776.041 requires the defendant to demonstrate that he or she used every reasonable means short of deadly force to extricate him- or herself from the situation, and that the degree of force used by the other person (the initial non-aggressor) led the defendant to reasonably believe that he or she was in imminent danger of death or great bodily harm. Alternatively, a defendant who is an initial aggressor may claim self-defense if: (1) in good faith, he or she withdrew from physical contact, (2) clearly indicated to the other person that he or she desired to withdraw and terminate the use of force, and (3) despite the communication and withdrawal, the other person continued or resumed the use of force. See Section 776.041(2)(b), Florida Statutes.

So if George Zimmerman is to be the aggressor, and thus forfeit his right to self-defense, it must be shown that he “provoked” Trayvon to attack him in some way. The law also provides that self-defense is not available to a person who is the first aggressor, and later finds himself on the losing end, unless 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.
The Probable Cause affidavit does not disclose what evidence there is to establish who provoked the fight; but we do know that George Zimmerman claims that Trayvon jumped out of the bushes and threw the first punch. If that is true, or goes un-rebutted by the State, then Trayvon was clearly the first aggressor as a matter of law.

So what does the prosecution have that constitutes sufficient provocation by Zimmerman such that he would forfeit his right to self-defense? All of the facts listed above are sufficient to classify Zimmerman as the aggressor. This is a grown man, in a vehicle, who has been menacingly following a young teen in the dark for a period of at least 8+ minutes before he jumps out on foot to hunt Trayvon down. During this period, he had at least one opportunity according to Zimmerman's own statements to alleviate any stress and fear being caused to Trayvon by simply rolling down his window and telling Trayvon, "I am a member of NWP, can I help you?" But Zimmerman was too wrapped up in his delusions that Trayvon was a suspicious thug.
This will be the prosecution's time to instill in the jury the fear that Trayvon most likely felt when he realized that someone was tracking his every move and the terror and anguish he must have been feeling when he was ultimately caught. A child, a young teenager, is not held to the same accountability as an adult. We know that Trayvon was followed for at least 8+ minutes that we are aware of (maybe more if we consider that Zimmerman may have been following him before he called the NEN). We as mothers, parents, grandparents, school officials, law enforcement, teach our children that when a stranger follows you, someone tries to come near you, touches you, chases you, you fight, you scream, you kick, you scream some more and you fight some more. You do whatever it takes to keep this person from harming or abducting you. The prosecution will want the jurors to relate to this case as if it were their own child and believe this is what Trayvon most likely did once Zimmerman attempted to detain him. He had no idea who this creepy guy was - he could have been a pedophile (which is still questionable), he could have been a gang member, he could have been a stupid dumb paranoid delusional wanna-be cop dude that had a gun attached to his butt for balls.... The prosecution will want the jury to believe that Trayvon did what he had been trained to do by us as a society since he was a little child old enough to leave his mother's side. He had that right, any aggression he may have exhibited was warranted and taught by us as adults. It's called self-defense. Zimmerman was an adult and as a person carrying a concealed weapon should have realized that. If you are a parent, you will understand this perspective.

Under Florida law, Trayvon was legally defending himself. He was justified in using force under §§ 776.012 and 776.013. Trayvon Trayvon OWNS Florida's Stand Your Ground laws.

Defense's Argument

I think it is safe to assume that the defense team is going to contend that Zimmerman was attacked by Trayvon while he was minding his own business and heading towards the direction of his truck after disconnecting with the NEN dispatch. They will want the jury to believe that Zimmerman only exited his truck to try and help dispatch by providing an address; that Zimmerman had given up any hope of locating Trayvon who was last seen running south down the dogpath; and, that Trayvon exerted unlawful force upon Zimmerman. In order to get this across to the jury, Zimmerman will need to take the witness stand. I see no other way around it since the defense cannot rely upon Zimmerman's prior statements or the reenactment. The only other evidence where Zimmerman explains the events of that night are through the Hannity Show interview - but as I stated above, this evidence is tainted.

§ 776.041 states that justification for using deadly force under §§ 776.012 and 776.013 are 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.

Recapping, based on these statutes, Zimmerman must demonstrate either of the following to be entitled to immunity:
Pursuant to § 776.012, Zimmerman must show that (1) he was being subjected to unlawful force from Trayvon, and (2) that he had a reasonable belief that deadly force was required to prevent imminent death, great bodily harm, or the commission of a forcible felony;

or

Pursuant to § 776.013(3), Zimmerman must show (1) that he was not engaged in unlawful activity; (2) he had the right to be where he was when attacked; and (3) Zimmerman had a reasonable belief that deadly force was required to prevent imminent death, great bodily harm, or the commission of a forcible felony.

As explained above, Zimmerman cannot show that he was "not engaged in unlawful activity" under § 776.013, because he was engaged in a wrongful act when he encountered Trayvon and he cannot show that he was being subjected to unlawful force from Trayvon under § 776.012 because Zimmerman was the first aggressor, subject to two exceptions.
First, an initial aggressor can be justified in using force if the force exercised by the other party is so great that the defendant fears imminent death or great bodily harm and has exhausted every reasonable means of escape. Fla. Stat. § 776.041(2)(a). Second, an initial aggressor can rely on the statutes if he or she withdraws from physical contact and indicates the withdrawal to the other party who continues the use of force against him or her. Fla. Stat. § 776.041(2)(b).

“When immunity under [the Stand Your Ground statute] is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes.” McDaniel v. State, 24 So.3d 654, 656 (Fla. 2d DCA 2009) (quoting Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008)).

Exception 1 - The SYG law imposes a duty to retreat in instances where the defendant has caused the fight, even if he later finds himself on the losing end of it:

The defense will contend that Trayvon's force was unlawful and constituted the forcible felony of “Assault or Battery,” in violation of Florida Statute §784.045. However, a person is justified in committing a battery when necessary to defend against another’s imminent use of unlawful force. Pitts v. State, 989 So. 2d 27, 30 (Fla. 2d DCA 2008). Here, if the prosecution has no evidence to dispute that Trayvon threw the first blow, they can certainly establish that Trayvon's actions of punching Zimmerman and wrestling him to the ground were justified and did not constitute a forcible felony or unlawful force. According to the evidence thus far, we know that Zimmerman followed Trayvon by vehicle, that Trayvon attempted to avoid Zimmerman by running to between the townhomes where a vehicle could not follow, and that when this occurred, Zimmerman exited his vehicle and ran after Trayvon. DeeDee's statement supports this account, and in the 911 recording, we hear Zimmerman exit his vehicle and he admits to the NEN dispatch that he is following Trayvon.

Although Zimmerman claims that he had withdrawn from searching for Trayvon, we can only assume that Trayvon had no way of knowing that. There is also evidence to support that this is not truthful - DeeDee mentions that Trayvon stated that Zimmerman was now following him again and that he said he could see him approaching. Whether Trayvon approached Zimmerman, or Zimmerman approached Trayvon will be an issue of fact for the jury to determine. Finally, according to Zimmerman's own statement, it was not until Zimmerman reached for or went to pull out his cell phone that Trayvon touched Zimmerman. Further, even if Trayvon lunged and wrestled Zimmerman to the ground, a witness reports that Zimmerman was on top of Trayon when the gun was fired. As such, Defendant failed to prove that Trayvon used unlawful force against him.
Since Zimmerman instigated the encounter, then, even assuming he could somehow prove that Trayvon was in fact trying to wrestle Zimmerman’s gun away from him, this still won’t necessarily provide an absolute defense to the killing. Zimmerman was the one who chose to arm himself while pursuing a teenager who was rightfully in the neighborhood and doing nothing wrong; Zimmerman was the one who chose to exit his vehicle looking for the teen, even when he was told not to do so by police dispatch; Zimmerman was the one who created a situation where, if a shoving match occurred between him and Trayvon, he could then argue that the fact he was armed made an unarmed teen a potentially lethal threat that put Zimmerman in fear of his life, because Zimmerman knew he had a gun that the boy could theoretically steal. “A killing is not justifiable or excusable if the defendant brought about the necessity therefor through his own wrongful act or without being reasonably free from fault in provoking the difficulty in which the killing occurred.” Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705; Ballard v. State, 31 Fla. 266, 12 So. 865; Padgett v. State, 40 Fla. 451, 24 So. 145.

Even if Trayvon threw the first punch, the moment Zimmerman pulled his gun, as the first aggressor, he had a duty to attempt to retreat. Regardless of who threw the first punch, Zimmerman provoked the confrontation by, while armed with a gun, recklessly hunting down an innocent teen who was a guest in the neighborhood. Zimmerman could have easily avoided any confrontation with Trayvon. Zimmerman himself admits that the kid ran away from him when he first saw Zimmerman, trying to escape. Zimmerman did not have to go for a kill shot. Most importantly, if Zimmerman had not pursued Trayvon, and if Zimmerman had not brought a gun, thereby inserting the possibility of deadly force into the equation where previously there had been none, then Trayvon would be alive today, regardless of who shoved who first:

“A defendant may, as a reasonable man, have believed that he was in danger of losing his life, or of incurring great bodily harm, and yet the killing may not, under some circumstances, be justifiable or excusable.  One instance is where he has brought about the necessity without being reasonably free from fault.  Again, the circumstances of a case may at least make it a question for the jury whether a killing was not in pursuance of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain.”  Ballard v. State, 31 Fla. 266, 12 So. 865.

O'Mara has indicated that Zimmerman's attempts at raising himself while pinned under Trayvon constitutes his attempt to "retreat" but because of Trayvon's formidable size, he was unable to retreat. But this does not explain why Zimmerman did not announce to Trayvon that he had the gun and intended to shoot. Law enforcement is trained to announce that they intend to shoot before doing so. If Zimmerman had the time to move and position his hand so as to be sure and not shoot it, he had the same time to speak his intentions to Trayvon.

Zimmerman admits that he never told Trayvon who he was despite there being at least 3 opportunities to have done so. Zimmerman does not give Trayvon forewarning that he is getting ready to shoot him in the heart at close range. According to Zimmerman's statements, he had Trayvon in a wrist hold and he drew his gun. Common sense tells a reasonable person that this would have been the time for Zimmerman to speak regarding his intentions and the opportunity for Zimmerman to safely retreat from the altercation. Why didn't he do that? Instead, there is a 911 tape that clearly evidences that Trayvon was begging for his life when the shot was fired. The wails lasted for 40 seconds or more and are excruciating to listen to when you understand what the ultimate outcome was. It is believed that the 911 tape reveals two voices, one that is making demands, and another that is pleading for his life. If the prosecution is able to have forensic experts decipher the words on this tape, the case will be over.

Zimmerman will fail to be able to satisfy the elements of Florida Statute § 776.041(2)(b).

Fear of imminent death or great bodily harm

As to the second element, Zimmerman cannot prove that he had a reasonable belief that deadly force was required to prevent imminent death, great bodily harm, or the commission of a forcible felony.

The use of deadly force only becomes justified when “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm.” No matter how subjectively real the belief is, an unreasonable belief does not provide any right of self-defense. The fear of imminent death must be based on objective facts “such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necessity for taking life real.” Ammons v. State, 88 Fla. 444, 454, 102 So. 642, 645 (1924).

If Zimmerman was not actually getting his head deliberately bashed into concrete — which, from the investigator's testimony at the bail hearing leads one to surmise that prosecutors do not believe occurred as Zimmerman claims and given that the forensic evidence indicates that there is none of Zimmerman's DNA on Trayvon's hands, cuffs or sleeves -- then Zimmerman was not justified in using deadly force against Trayvon, no matter what his actual beliefs were. Zimmerman may have had the adrenaline rushing through his veins, may have perceived his opponent as a murderous gang-member rather than a skinny teenager because of the presence of a hoody; it’s possible Zimmerman really did think that a wrestling match on the grass with a skinny teenager somehow put his life in mortal danger. But his hyperactive threat perception system does not excuse him.

An individual’s right to life is not contingent upon maintaining a constant impression of harmless frailty, “men do not hold their lives at the mercy of excessive caution or unreasoning fear of others.” Ammons, 88 Fla. 444 (1924).

Even if Zimmerman truly believed he was somehow in danger for his life, he was not thereby granted permission to kill Trayvon if his fears were the product of an unreasonable mind. And there is plenty to suggest Zimmerman was in fact acting out of excessive caution and unreasoning fear that night. His hyperactive vigilance, his willingness to see a boy returning home from a candy run to the store as a grave threat to his neighborhood, his professed fear for his life due to a tussle with an unarmed boy that he outweighed — if the jury finds from Zimmerman’s behavior that his fears were unreasonable, and that his fear for his life due to a couple bumps on the head was not practical, then the killing is not justifiable as self-defense.
Add to this that Zimmerman admits that he had the wherewithal and time to contemplate that he not shoot his other hand, aim, and pull the trigger.

The evidence indicates that Trayvon was not punching Zimmerman in the face, bashing his head into the pavement, or smothering Zimmerman during the struggle, which is supported by eyewitness testimony and by the testimony of paramedics that Zimmerman refused treatment. Rather, the complete lack of any of Zimmerman's DNA on Trayvon's hands supports a finding that such never occurred. Also, immediately before firing the fatal shot, Zimmerman admits the two were struggling over the gun. He states that he managed to gain wrist control over Trayvon and gain control of the weapon, aim and fired one shot, hitting Trayvon in the heart. It was during this struggle for the weapon—and not during an attack on Zimmerman—that Trayvon was killed. Because Defendant was not under attack, but was struggling for the weapon, there was no reasonable belief that deadly force was required.

Although younger than Zimmerman, Zimmerman was larger and heavier than Trayvon, and under the circumstances, the Court will most likely not find that Trayvon's size caused any reasonable belief of danger. As such Zimmerman cannot prove that Trayvon's actions created a reasonable belief that deadly force was required to prevent imminent death, great bodily harm, or the commission of a forcible felony. As such, Zimmerman will fail to be able to satisfy the elements of Florida Statute § 776.041(2)(a).

Conclusion

Generally, a defendant who initially provokes the use of force against himself cannot rely on § 776.012 or § 776.013(3). Fla. Stat. § 776.041. However, a defendant can rely on the statute if he or she proves that the other party’s responding force is so great that the defendant fears imminent death or great bodily harm and has exhausted every reasonable means of escape; or if the defendant withdraws from physical contact and indicates the withdrawal to the party who continues the use of force. Fla. Stat. § 776.041(2); see also Darling v. State, 37 Fla. L. Weekly D506 (Fla. 3d DCA Feb. 29, 2012). Here, even if Zimmerman had satisfied the elements of § 776.012 or § 776.013(3), he would not be entitled to immunity because he failed to prove that he did not provoke the use of force against him. Further, he did not prove that he was still entitled to the use of force even if he was the initial aggressor because (1) the force exercised by Trayvon was so great as to create fear of imminent death or great bodily harm and Zimmerman exhausted every reasonable means of escape; or (2) Zimmerman withdrew from physical contact, indicated the withdrawal, and that Trayvon continued the use of force.

In summary, the Court will find that Zimmerman is not entitled to rely on §§ 776.041. Because Zimmerman cannot prove that he can satisfy either § 776.012 or § 776.013(3), the Court will conclude that Zimmerman has not proved that he is entitled to immunity from prosecution pursuant to § 776.032.

The Best Statement I have Read on this Case:

If the jurors who will ultimately decide Zimmerman's fate are people of reasonable minds, they will recognize that Trayvon was walking on a public street, confronting no one and was himself confronted by a self-appointed mediator of public safety. He was confronted and quizzed — and the mere questioning of his presence by the way is something that a sworn police officer, without probable cause, would not be able to do while compelling an answer. Zimmerman had no legal justification whatsoever for compelling any answer or response or halt by Trayvon. Trayvon was within his rights to say, go fuck yourself and keep walking. He was within his rights not to be queried about his whereabouts, or about his purposes. To do so and insist on your quasi-authority as a neighborhood watchman is to violate the 4th Amendment rights of another citizen. And clearly that is the premise behind this confrontation.

Had Trayvon been allowed to walk while black in a Florida subdivision, he would be alive. Had Zimmerman not been armed, he would not have held the arrogance to confront of a fellow citizen without any probable cause to believe that the citizen was engaged in a crime. Had he not confronted that citizen without probable cause, the confrontation would not have elevated to fisticuffs. And had he not been armed in that confrontation, it would have remained a fistfight. Had the state of Florida not horribly corrupted hundreds of years of self-defense common law, Zimmerman would not have been empowered to make such appalling and fatal decisions.

Under the Bill of Rights, Trayvon has the right to walk and be black and not to answer the curious questions of an untrained but armed police-want-to-be who has no legal status to detain or question or compel evidence from a fellow citizen. But hey, he stood his ground. And now a teenager who wasn’t committing any crime when he was first approached is dead.

As Florida law now stands, an extraordinary, untrained civilian — someone who fancies themselves to have legal authority that they should not in fact have, someone armed with a concealed firearm, someone empowered by a new law that values real estate more than life — he can proceed to escalate that moment until violence ensues, at which point, being the only one carrying a concealed and deadly weapon, he can take a human life that should never have been at risk in the first place.
Trayvon was unarmed and was walking. Zimmerman was armed and felt empowered to stand his ground and question Trayvon for being unarmed and walking. A confrontation resulted that would not have resulted if Zimmerman had picked up the phone and delegated his concerns to trained law enforcement officers who understand the practical application of probable cause and the absolute right of free citizens to resist interrogative efforts by officers. A civilian or a cop can approach anyone ask them questions. But only a cop understands that he is not, without probable cause, entitled to cooperation. That is what the U.S. Supreme Court has ruled. A cop can ask anyone anything. But one does not have to respond unless one is detained by the officer, and the officer can only detain you with probable cause. An ignorant, self-aggrandized neighborhood watch volunteer carrying a deadly weapon may or may not understand their lack of standing in attempting the approach. And that lack of understanding may indeed lead to escalation and violence and tragedy.

That is what happened here. Zimmerman was no cop. He had no probable cause. And worse, he had no training to understand the tenuous legality of his authority. Meanwhile, Trayvon did nothing to require his cooperation or detention. So a confrontation began and an argument ensued. Zimmerman stood his ground against an unarmed man that he unilaterally approached and challenged. Trayvon is dead. Zimmerman is utterly unjustified, regardless of whether Trayvon was agitated enough by having his civil rights violated to have engaged in common assault or mutual combat. Trayvon was unarmed. Zimmerman had the gun.

Zimmerman’s attorneys are already invoking the SYG statutes as a means of mitigating against a judge’s or jury’s determination that the provocation here originated with him. And before that law was on the books, there is no ground on which he ought to have been standing. The existing self-defense laws would allow for him to make the argument that he was in reasonable fear of death or serious injury when he elected to use deadly force against Trayvon. That was the legal standard before the Florida legislature butchered it. So why make his use of deadly force easier than that? Why make it a matter of pride or real estate rather than genuine fear of death or serious injury? Why, except that the gun lobby is now writing laws that obviate even their previous credo that guns don’t kill people, people do. Now, people aren’t even responsible for taking life. Shit just happens. The change in the law is appalling, unjustifiable and unnecessary — unless you value pride and real estate and property more than human life itself.

The arguments for equivalency between Zimmerman and Trayvon because Trayvonn may have been moved to common, non-lethal assault during the confrontation, or even less, to become involved in some mutual non-lethal combat, are subject to my full disregard and contempt. There is dishonesty in that false equivalency that goes to the heart of what went wrong and took a life in Florida.

After Trayvon's death, false pictures that depicted a thug have been widely circulated in email and in the media to generate cause for Zimmerman and justify the shooting. O'Mara has groomed social media and school records in an attempt to find some negative evidence to be trotted out as a defense to encourage aquittal. This type of defense is disgusting. That is the reason we allow law abiding citizens to carry guns, isn’t it? To protect ourselves from the criminal element who would threaten us with life threatening consequences? What disgusts me is that “he was black and all blacks are criminals and therefore deserved it.”

For hundreds of years of English common law and American jurisprudence, the responsibility for taking a human life rested with the taker of human life. Once they had acknowledged the act itself and been proven to have undertaken the act itself, it was incumbent upon those who had committed homicide to prove that there was mitigation for the life-taking. If there was actual evidence that the homicide occurred in self-defense then the means to present that evidence already existed throughout the entire criminal justice system.

Now, however, we have gone further and tilted the scales of justice. Now, it is incumbent upon the state to prove a negative, effectively — to prove that it was unreasonable for the life-taker to have believed he was in sufficient jeopardy to use lethal force. Get that? Now, before holding a citizen responsible for killing another citizen in twenty American states, a prosecutor must first prove that it was implausible or unreasonable for the murder to have been in self-defense. Until this point in American history, it was the opposite. It was incumbent on those who took human life to prove with actual evidence — and not merely through their state-of-mind suppositions, and their sense that there was no other way to proceed if they desired to maintain their real estate and pride — that they were obliged to kill, that their use of lethal force was the only alternative.
That is the issue here. It’s the issue whether you are conservative or liberal or libertarian or Marxist. As a legal doctrine, stand-your-ground is transformative and revolutionary. And it is worthy of reconsideration regardless of who we choose to vote for and what ideology we embrace. That is why law enforcement groups oppose the sea change. Not because it interferes with constitutional purity, or because they are in your eyes reactionary bastards, but because it upends years and years and years of the most basic precepts of our common law, beginning with the Biblical invocations against killing.

And right now, as a simple fact, the greater share of the growing number of victims of stand-your-ground legislation happen to be people of color, which, if you know any such folk or be of that hue yourself, can also be of some reasonable and immediate concern. Clearly, from your remarks, you care little about this reality. But other citizens are of the opinion that a civil rights challenge and affront to any one of us as Americans, regardless of our tribe, is ultimately an affront to us all. That value, too, is embedded in the constitutional protections we all enjoy.

These Stand Your Ground statutes are dystrophic and brutalizing. They are bad laws for those who believe in crime and punishment and individual responsibility. You ought to be able to play a stereo too loud or not answer the questions of a citizen’s watch enthusiast without being shot to death. Any political ideology that rationalizes such an outcome isn’t worth much spit.

And while the Zimmerman case has not charged racial hate crimes, this is about race and nothing but, and it is a systemic threat to young black males. And the two recent cases involve instances in which the defendants approached and provoked the victims, not the other way around. And the victims were not carrying or brandishing firearms. And yet two young black males are dead.

There are times when white people want to say something is not racial and sneer at black demagoguery. And they can do so because the systemic racial bias is not self-evident. Stand-your-ground statutes and their actual use against actual human beings is not the place to do that. If you think there isn’t a fundamental racial component to this, you are being willfully, almost desperately obtuse.

Before the NRA and callow lawmakers got involved in this legislative disaster, there was the ability to make a legitimate self-defense claim established in every state of the union, and indeed, it is a foundation of our common law. You can make that defense in presenting evidence to police investigators, or before a grand jury, or even after indictment in proffer sessions with prosecutors. And then you can offer it again at trial, before a jury of your peers. And somehow that wasn’t enough.
It used to be said by gun-rights advocates that guns don’t kill people, people do. Now those same folks are arguing that people don’t even kill people, that shit just happens. Those folks are not being fair. They are excusing an immoral denigration of human life under the law. I can guarantee that if this resulted in the loss of life of one of their loved ones, it would be a different story and the first time a black man shoots a white kid in Florida and claims he was standing his ground, this will become self-evident.

This is about the effects of the SYG law on the ground. Anyone with a gun, if they believe themselves to be under significant threat and can conjure even a vague scenario that argues for such, can take a human life with less chance of being legally responsible for the action. We know that people of color produces fear merely by being people of color; if you’ve tried to be black and drive a vehicle in these United States, or walk at night through a fashionable neighborhood, you are more vulnerable to this dynamic.

Trayvon is dead. He has now been tethered to another young black victim. And elsewhere in Florida and in other states, similar violence has occurred against unarmed people of color in the wake of this new legal standard. Racism exists and remains persistent for a number of reasons, and it will be so for the foreseeable future with some portion of the American populace. Given this, we need to get these laws off the books right fucking now.



George Zimmerman is a murderer, child molester and woman abuser who is breathing air that doesn't belong to him - I await Karma to inflict justice in the name of Trayvon.

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Anyone who believes the defendant is innocent is a racist and anyone who contributes money to his defense is a stupid racist.”.  ~Professor Frederick Leatherman




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Re: GZ and the Immunity Hearing - Dont let O'Mara confuse you

Post by KimmyK on Tue Feb 19, 2013 6:12 pm

CherokeeNative wrote:Picture this scene: George Zimmerman and Mark O’Mara are sitting at the defense table intently looking at lead prosecutor Bernie de la Ronda as he approaches the podium, acknowledges the court, looks at the defense table, acknowledges their presence, paces a few steps from the podium and finally turns to the jury and just before his lips part to say the first word, O’Mara holds his breath. But wait, what are the laws under which Zimmerman is claiming self-defense?

What will come out of Bernie's mouth at this point is unknown, but we can look to Florida law and the facts and evidence and garner a pretty good idea.

O'Mara has gone on the record stating that he will not be defending Zimmerman under the SYG law, but that instead, he will be relying on the general self-defense statutes. This has confused many laypersons for good reason. As you can see from reading the below statute, § 776.032 is an immunity statute - it does not define what constitutes self-defense or under what circumstances the use of deadly force is allowable, but instead provides that one who uses force must qualify with other statutes in order to justify reliance upon § 776.032's immunity.

SYG Statute:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Florida Statutes §§ 776.012, 776.013, 776.031. and 776.032 all became effective on October 1, 2005. These four statutes are commonly referred to as Florida's "Stand Your Ground Law". See 2005 Fla. Laws 199, 202. Under the Florida Statutes, Chapter 776, "Justifiable Use of Force" the six statutes below are the only self-defense laws that could possibly apply to Zimmerman's case:

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.
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
776.041 Use of force by aggressor.
776.06 Deadly force.
776.08 Forcible felony.

As you can see from the above list, all of the Stand Your Ground laws are applicable to Zimmerman's case with the exception of 776.032, Use of Force in Defense of Others. What O'Mara will be relying on in addition to the Stand Your Ground laws is § 776.041, Use of Force by Aggressor.

The reason O'Mara was so vague in his description of how his client will be defended rests with the fact that he cannot bring himself to admit in public, in front of rolling cameras and live tee vee, that Zimmerman's conduct the night of February 26, 2012, amounted to what Florida law defines as the "aggressor." To make such an admission would go against the defense team's mantra and ongoing media tour to portray Zimmerman anything but a vigilante racist who murdered a young teenage boy who was doing nothing but walking home armed only with a cell phone, some pocket change, Arizona drink and some Skittles. That the defense team has taken this approach in dealing with the public should be a strong indication of how they will proceed to use smoke and mirrors to fool the jurors who will ultimately be judging Zimmerman. I assure you, it will be anything but a search for the truth.

In the meantime, a review of the above statutes and their application to this case will make it clear that the reason O'Mara is trying to delay moving forward is because they are still trying to find that elusive piece of evidence that will absolve his client and allow him to bask in the glory of being herald as the unconventional attorney who freed the most hated man in America. Gag me with a spoon is my first thought and then, yeah, good luck with that is my final thought.

Bernie has two choices: he can present to the jury that Zimmerman was engaged in a wrongful act just as he encountered Trayvon or he can show that Zimmerman was the first aggressor. These two choices have different implications and he can argue both, and the evidence he will use to convey either theory to the jury would essentially be the same. So what does this all mean? First, let me make clear that this rant is focusing on the legal arguments under Florida's self-defense laws as it applies to the facts and evidence in this case; it does not focus on the State's burden of proving Murder in the Second Degree and what facts and evidence will be used to win such a conviction.

A defendant claiming immunity under the title of “Stand Your Ground,” must demonstrate by a preponderance of the evidence that he or she is immune from prosecution. Horn v. State, 17 So. 3d 836, 839 (Fla. 2d DCA 2009). Zimmerman may claim immunity generally under § 776.032, by way of an immunity hearing; but failing that, at trial he will make claim to self-defense under § 776.012 and § 776.013 . Subsection (1) of § 776.013 is inapplicable because the incident did not occur in “a dwelling, residence, or occupied vehicle.” See Fla. Stat. § 776.013(1) (2011). Rather, because Zimmerman will most likely claim fear of imminent death or great bodily harm to himself while in a place other than a dwelling, residence, or vehicle, the applicable statutes would be § 776.012 and § 776.013(3).

§ 776.012 provides in full that:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

§776.013 provides in full that:

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
Wrongful act

The first choice involves showing that George Zimmerman was engaged in wrongful activity just as he encountered Trayvon Trayvon on that dark and rainy night. This simply means that the prosecution would have to present evidence that George Zimmerman did something wrongful within the purview of § 776.013 of the Florida Statutes. Bernie will likely show that George Zimmerman, the 28 year old “self-appointed” neighborhood watch captain, who has sought on more than one occasion to “solidify [his] interest in law enforcement,” intended to capture and detain the “punk/asshole” (Trayvon) to keep him from getting away from the imminent arrival of the police.

Bernie will likely begin his case by using the fact that Zimmerman took affirmative steps to “protect his community” at all costs, perhaps enough to rise to the level whereby local law enforcement would take notice of his efforts. For instance, he formed a community watch, went on several ride-alongs with the Sanford Police Department, called the police numerous times to report suspicious people and voluntarily followed Trayvon even to the point where he got out of his vehicle to pursue him on foot despite a dispatcher’s plea to cease his pursuit. Undoubtedly Zimmerman was so convinced that Trayvon was a drugged-out criminal on the prowl for a smash-and-grab operation that he called the police. On that call with dispatch Zimmerman can be heard saying words of affirmation such as “yep” and “uh-huh,” after stating his reasons for suspecting Trayvon was up to no good and possibly about to break into an unsecured home. It was as if he was rationalizing and therefore self-justifying the actions he was about to take.

In addition to his suspicions about Trayvon, Zimmerman thought it necessary to mention Trayvon was acting suspicious, had his hand in his waistband and that "he's on drugs or something." A few seconds later, Zimmerman states with surety that Trayvon indeed had something in his hands and made a plea to have officers come immediately. This demonstrates to the reasonable person that Zimmerman believed that Trayvon had a weapon of some sort and that Zimmerman had reason to be at least cautious if he were to confront Trayvon. This “reasonable belief” that Trayvon was carrying a weapon is heightened by the fact that it was George carrying the only weapon. In other words George was ascribing his own thoughts, feelings, and attitudes to Trayvon, a term psychologists call projecting.

Understanding the state of mind of George at this point is an important part of the prosecution making its case to the jury. The question that now remains is why would George get out of the safety of vehicle to pursue an up to no good Trayvon on a dark and rainy night who, in George’s mind, may be carrying a weapon in his waistband. Here is where the fireworks begin because I will bet that this is where the defense team will try to combat this question via an interview with Sean Hannity. Unfortunately, that interview is tainted.

From this point Bernie has a few choices based on the evidence he has gathered. And depending on that evidence, he can likely show the jury that Zimmerman was engaged in wrongful activity either by detaining Trayvon against his will and/or brandishing his weapon, or committing an assault and battery by stalking. All are more than likely to be wrongful under § 776.013 of the Florida Statutes. The first would be false imprisonment/arrest and the other two would be felony aggravated assault and first degree misdemeanor.

Bernie will play the NEN call and point out the fact that when Zimmerman says, "shit, he's running" followed with Zimmerman immediately exiting his car and the sounds of Zimmerman panting and the rushing sounds of air, the dispatcher hears what we all hear that Zimmerman is in hot pursuit of Trayvon and asks Zimmerman, "are you following him?" with Zimmerman responding, "yes." The dispatcher immediately says, "okay, we don't need you to do that" and Zimmerman response "okay" but that doesn't stop Zimmerman as we can hear that he continues to run for another few seconds…most likely until he reached the "T" to the dogpath. I suspect that they will present evidence of the sound of Zimmerman chamber checking his gun on the NEN call. It is not unreasonable to get to this point if the evidence is weighed and reasonable inferences are drawn. Bernie will also play that part of the NEN call where Zimmerman agrees to meet up with LE at the mailboxes only to change his plans when he appears to become distracted and tells dispatch to just have the Officer call him when he is in the vicinity and Zimmerman will tell him where he is. Bernie will tell the jury that approximately 2.5 minutes are missing from the time the disconnect with NEN and the first 911 call, the witness who saw a fleeting glance of one or two people running from South to North, one with a flashlight and they will use DeeDee's testimony that she heard Trayvon say, "get off, get off."
According to § 787.02 of the Florida statutes false imprisonment “means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” Even if the unlawful restraint were to last a mere second, under Florida law it would still be classified as false imprisonment. Trayvon was on his way to his father’s girlfriend's place to watch the NBA all-star game with his younger soon-to-be step-brother. Ironically it was Zimmerman himself who stated Trayvon took off running after he was most likely spooked from being followed on a dark rainy and lonely night. So it is an undisputed fact Trayvon did not, by any means, want to be confronted or detained by Zimmerman.

At common law a person (arrestor) may detain another (arrestee) against their will, if the arrestee has in fact committed a misdemeanor that rises to the level of breaching the peace and it was committed in the presence of the arrestor. An arrestor can also detain an arrestee against their will if the arrestee has in fact committed a felony even if the arrestee did not commit the felony in the arrestor’s presence. This privilege applies to private persons who are not law enforcement or something similar such as a shopkeeper or security officer. Zimmerman for all purposes was acting as a private individual. Thus the only way Zimmerman would be able to detain Trayvon without committing a wrongful act is if Trayvon committed a misdemeanor that breaches the peace in his presence or Trayvon committed a felony and Zimmerman is aware of it. None of these factors apply .

After weighing the competing interests of Trayvon and Zimmerman, so to speak, a reasonable person can infer the motives of both Trayvon and Zimmerman based on the evidence. Trayvon’s motivation was to seek safety and return home because not only was he in a neighborhood he did not know, but a man whom he has never seen or met before was watching him and following him in a vehicle while alone on a dark rainy night. On the other hand Zimmerman, pressed with a series of break-ins in his neighborhood and his conviction that Trayvon was a fleeing threat, his motivation was to make sure the police captured the criminal Trayvon, because “those assholes always get away.”

On the second point when the facts are viewed in its entirety, was it reasonable for Zimmerman, armed with a pistol, to get out of the safety of his vehicle to pursue someone he believes is a burglar with his hand in his waistband (an odd term to begin with - waistband is often used in conjunction with guns) on a dark and rainy night without his gun drawn? Was it reasonable for any armed individual to pursue a stranger in the dark they just reported to the police on the suspicion of that have or is about to commit a felony without at least having their weapon in a ready position? More importantly how was Zimmerman able to catch, detain or cut off Trayvon’s escape? We know that Trayvon told DeeDee that this creepy man was coming closer to Trayvon. This is in direct contrast to Zimmerman's claim that Trayvon jumped out of the bushes. Moreover, according to Zimmerman’s own statement he never threw a punch, could it be because a gun was in his hand and a struggle ensued over control of that weapon? As Serino asked Zimmerman, what would make Trayvon go ballistic when just moments earlier he was running and attempting to avoid Zimmerman? Serino even asks Zimmerman whether he is sure that Trayvon did not see his gun. It's not a far leap to believe that this is what occurred.

All the prosecution has to show is some restraint against the will of another. The evidence seems to point to a scared Trayvon running away from Zimmerman. Zimmerman states Trayvon ran and DeeDee confirms that Trayvon was afraid. There is a witness who states that she saw, out of the corner of her eye, one or more persons running from South to North on the dog walk, one with a flashlight. We know that Zimmerman never attempted to alleviate the tension Trayvon may have been feeling at being stalked because Zimmerman stated he didn't. Obviously Zimmerman wasn’t inquiring like one would your local gas station attendant, "hey can you give me directions?" In fact, Zimmerman admits that when Trayvon questioned him, he did not tell Trayvon he was a member of the NWP, but instead reached for his cell phone. DeeDee confirms this exchange, although the wording is different and therefore the context of how it occurred. Zimmerman claims that Trayvon appeared from out of the bushes and said, "Yo, you got a problem?" and he responded, "No, I don't have a problem." This is Zimmerman's attempt to make Trayvon the aggressor. DeeDee claims Trayvon told her the creepy man was getting closer, and she heard Trayvon say, "why are you following me?" and that the man responded, "what are you doing around here?" The evidence suggests that Zimmerman believed Trayvon was a dangerous criminal and he did not want him to escape (police) capture. DeeDee confirms this suggestion by stating that she heard what sounded like pushing, with Trayvon saying, "get off, get off." DeeDee's testimony pretty much proves that it was Zimmerman who continued to hunt Trayvon down, and as such was the aggressor.

From this evidence, it is reasonable to infer that Zimmerman initiated/attempted a citizen’s arrest. A citizen’s arrest falls under false imprisonment – all you need to do is attempt to hold a person until police arrives. There is no privilege for mistake of fact on a citizen’s arrest afforded to private individuals.

Case law is scarce as to what constitutes “unlawful activity” for the purposes of § 776.013(3), but a crime of aggravated assault constitutes a forceable felony, and the crime of stalking constitutes "unlawful activity" as intended by the statutes. It is a first-degree misdemeanor to harass by engaging in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. "Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose Fla. Stat. § 784.048(a).

As explained, Defendant cannot prove that he acted lawfully during the incident. According to Zimmerman's own admissions, he followed Trayvon in his vehicle, and when Trayvon attempted to run to get away from him, Zimmerman exited his vehicle to chase after him. Zimmerman admits following after Trayvon to the NEN dispatcher. DeeDee confirms this as well and further confirms that Trayvon was afraid, which is a form of emotional distress and harassment. Zimmerman withdrew his plan to meet the patrol officer at the mailboxes as originally agreed upon and told the dispatcher to have the officer call him when he arrived, leaving one to believe that Zimmerman was going to pursue Trayvon. One witness has stated that she saw two people, one chasing the other from South to North leaving a question of fact as to whether or not Zimmerman located and chased Trayvon towards the area where he was ultimately shot.

Now, at a SYG or immunity hearing all that is necessary to overcome such a claim, the prosecution does not have to prove Zimmerman imprisoned Trayvon beyond a reasonable doubt, he’s not being charged with false imprisonment, they just have to prove that he imprisoned him above the preponderance of the evidence standard and below the clear and convincing standard — which is by competent substantial evidence. If the prosecution can establish that Zimmerman attempted to detain Trayvon, anything that Trayvon did to get away would constitute Trayvon legally self-defending himself.

First Aggressor

The second legal argument that may be advanced by the prosecution is characterizing Zimmerman as the first aggressor. The First Aggressor Rule is a rather simple common law rule that says “a defendant who provokes an encounter as a result of which he finds it necessary to use deadly force to defend himself, is guilty of an unlawful homicide and cannot claim that he acted in self-defense.” Wharton’s Criminal Law, Sec. 136 Provocation by Defendant. See also Wallace v. United States, 162 US 466 (1896).

Florida has codified the First Aggressor Rule into Florida Statute 776.041(2) (Use of force by aggressor), which states: “The justification [to use self-defense] is not available to a person who initially provokes the use of force against himself or herself.”
The justifications for use of force will not apply where the evidence establishes that the defendant initially provoked violence against him- or herself. To claim self-defense in such a scenario, Section 776.041 requires the defendant to demonstrate that he or she used every reasonable means short of deadly force to extricate him- or herself from the situation, and that the degree of force used by the other person (the initial non-aggressor) led the defendant to reasonably believe that he or she was in imminent danger of death or great bodily harm. Alternatively, a defendant who is an initial aggressor may claim self-defense if: (1) in good faith, he or she withdrew from physical contact, (2) clearly indicated to the other person that he or she desired to withdraw and terminate the use of force, and (3) despite the communication and withdrawal, the other person continued or resumed the use of force. See Section 776.041(2)(b), Florida Statutes.

So if George Zimmerman is to be the aggressor, and thus forfeit his right to self-defense, it must be shown that he “provoked” Trayvon to attack him in some way. The law also provides that self-defense is not available to a person who is the first aggressor, and later finds himself on the losing end, unless 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.
The Probable Cause affidavit does not disclose what evidence there is to establish who provoked the fight; but we do know that George Zimmerman claims that Trayvon jumped out of the bushes and threw the first punch. If that is true, or goes un-rebutted by the State, then Trayvon was clearly the first aggressor as a matter of law.

So what does the prosecution have that constitutes sufficient provocation by Zimmerman such that he would forfeit his right to self-defense? All of the facts listed above are sufficient to classify Zimmerman as the aggressor. This is a grown man, in a vehicle, who has been menacingly following a young teen in the dark for a period of at least 8+ minutes before he jumps out on foot to hunt Trayvon down. During this period, he had at least one opportunity according to Zimmerman's own statements to alleviate any stress and fear being caused to Trayvon by simply rolling down his window and telling Trayvon, "I am a member of NWP, can I help you?" But Zimmerman was too wrapped up in his delusions that Trayvon was a suspicious thug.
This will be the prosecution's time to instill in the jury the fear that Trayvon most likely felt when he realized that someone was tracking his every move and the terror and anguish he must have been feeling when he was ultimately caught. A child, a young teenager, is not held to the same accountability as an adult. We know that Trayvon was followed for at least 8+ minutes that we are aware of (maybe more if we consider that Zimmerman may have been following him before he called the NEN). We as mothers, parents, grandparents, school officials, law enforcement, teach our children that when a stranger follows you, someone tries to come near you, touches you, chases you, you fight, you scream, you kick, you scream some more and you fight some more. You do whatever it takes to keep this person from harming or abducting you. The prosecution will want the jurors to relate to this case as if it were their own child and believe this is what Trayvon most likely did once Zimmerman attempted to detain him. He had no idea who this creepy guy was - he could have been a pedophile (which is still questionable), he could have been a gang member, he could have been a stupid dumb paranoid delusional wanna-be cop dude that had a gun attached to his butt for balls.... The prosecution will want the jury to believe that Trayvon did what he had been trained to do by us as a society since he was a little child old enough to leave his mother's side. He had that right, any aggression he may have exhibited was warranted and taught by us as adults. It's called self-defense. Zimmerman was an adult and as a person carrying a concealed weapon should have realized that. If you are a parent, you will understand this perspective.

Under Florida law, Trayvon was legally defending himself. He was justified in using force under §§ 776.012 and 776.013. Trayvon Trayvon OWNS Florida's Stand Your Ground laws.

Defense's Argument

I think it is safe to assume that the defense team is going to contend that Zimmerman was attacked by Trayvon while he was minding his own business and heading towards the direction of his truck after disconnecting with the NEN dispatch. They will want the jury to believe that Zimmerman only exited his truck to try and help dispatch by providing an address; that Zimmerman had given up any hope of locating Trayvon who was last seen running south down the dogpath; and, that Trayvon exerted unlawful force upon Zimmerman. In order to get this across to the jury, Zimmerman will need to take the witness stand. I see no other way around it since the defense cannot rely upon Zimmerman's prior statements or the reenactment. The only other evidence where Zimmerman explains the events of that night are through the Hannity Show interview - but as I stated above, this evidence is tainted.

§ 776.041 states that justification for using deadly force under §§ 776.012 and 776.013 are 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.

Recapping, based on these statutes, Zimmerman must demonstrate either of the following to be entitled to immunity:
Pursuant to § 776.012, Zimmerman must show that (1) he was being subjected to unlawful force from Trayvon, and (2) that he had a reasonable belief that deadly force was required to prevent imminent death, great bodily harm, or the commission of a forcible felony;

or

Pursuant to § 776.013(3), Zimmerman must show (1) that he was not engaged in unlawful activity; (2) he had the right to be where he was when attacked; and (3) Zimmerman had a reasonable belief that deadly force was required to prevent imminent death, great bodily harm, or the commission of a forcible felony.

As explained above, Zimmerman cannot show that he was "not engaged in unlawful activity" under § 776.013, because he was engaged in a wrongful act when he encountered Trayvon and he cannot show that he was being subjected to unlawful force from Trayvon under § 776.012 because Zimmerman was the first aggressor, subject to two exceptions.
First, an initial aggressor can be justified in using force if the force exercised by the other party is so great that the defendant fears imminent death or great bodily harm and has exhausted every reasonable means of escape. Fla. Stat. § 776.041(2)(a). Second, an initial aggressor can rely on the statutes if he or she withdraws from physical contact and indicates the withdrawal to the other party who continues the use of force against him or her. Fla. Stat. § 776.041(2)(b).

“When immunity under [the Stand Your Ground statute] is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes.” McDaniel v. State, 24 So.3d 654, 656 (Fla. 2d DCA 2009) (quoting Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008)).

Exception 1 - The SYG law imposes a duty to retreat in instances where the defendant has caused the fight, even if he later finds himself on the losing end of it:

The defense will contend that Trayvon's force was unlawful and constituted the forcible felony of “Assault or Battery,” in violation of Florida Statute §784.045. However, a person is justified in committing a battery when necessary to defend against another’s imminent use of unlawful force. Pitts v. State, 989 So. 2d 27, 30 (Fla. 2d DCA 2008). Here, if the prosecution has no evidence to dispute that Trayvon threw the first blow, they can certainly establish that Trayvon's actions of punching Zimmerman and wrestling him to the ground were justified and did not constitute a forcible felony or unlawful force. According to the evidence thus far, we know that Zimmerman followed Trayvon by vehicle, that Trayvon attempted to avoid Zimmerman by running to between the townhomes where a vehicle could not follow, and that when this occurred, Zimmerman exited his vehicle and ran after Trayvon. DeeDee's statement supports this account, and in the 911 recording, we hear Zimmerman exit his vehicle and he admits to the NEN dispatch that he is following Trayvon.

Although Zimmerman claims that he had withdrawn from searching for Trayvon, we can only assume that Trayvon had no way of knowing that. There is also evidence to support that this is not truthful - DeeDee mentions that Trayvon stated that Zimmerman was now following him again and that he said he could see him approaching. Whether Trayvon approached Zimmerman, or Zimmerman approached Trayvon will be an issue of fact for the jury to determine. Finally, according to Zimmerman's own statement, it was not until Zimmerman reached for or went to pull out his cell phone that Trayvon touched Zimmerman. Further, even if Trayvon lunged and wrestled Zimmerman to the ground, a witness reports that Zimmerman was on top of Trayon when the gun was fired. As such, Defendant failed to prove that Trayvon used unlawful force against him.
Since Zimmerman instigated the encounter, then, even assuming he could somehow prove that Trayvon was in fact trying to wrestle Zimmerman’s gun away from him, this still won’t necessarily provide an absolute defense to the killing. Zimmerman was the one who chose to arm himself while pursuing a teenager who was rightfully in the neighborhood and doing nothing wrong; Zimmerman was the one who chose to exit his vehicle looking for the teen, even when he was told not to do so by police dispatch; Zimmerman was the one who created a situation where, if a shoving match occurred between him and Trayvon, he could then argue that the fact he was armed made an unarmed teen a potentially lethal threat that put Zimmerman in fear of his life, because Zimmerman knew he had a gun that the boy could theoretically steal. “A killing is not justifiable or excusable if the defendant brought about the necessity therefor through his own wrongful act or without being reasonably free from fault in provoking the difficulty in which the killing occurred.” Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705; Ballard v. State, 31 Fla. 266, 12 So. 865; Padgett v. State, 40 Fla. 451, 24 So. 145.

Even if Trayvon threw the first punch, the moment Zimmerman pulled his gun, as the first aggressor, he had a duty to attempt to retreat. Regardless of who threw the first punch, Zimmerman provoked the confrontation by, while armed with a gun, recklessly hunting down an innocent teen who was a guest in the neighborhood. Zimmerman could have easily avoided any confrontation with Trayvon. Zimmerman himself admits that the kid ran away from him when he first saw Zimmerman, trying to escape. Zimmerman did not have to go for a kill shot. Most importantly, if Zimmerman had not pursued Trayvon, and if Zimmerman had not brought a gun, thereby inserting the possibility of deadly force into the equation where previously there had been none, then Trayvon would be alive today, regardless of who shoved who first:

“A defendant may, as a reasonable man, have believed that he was in danger of losing his life, or of incurring great bodily harm, and yet the killing may not, under some circumstances, be justifiable or excusable.  One instance is where he has brought about the necessity without being reasonably free from fault.  Again, the circumstances of a case may at least make it a question for the jury whether a killing was not in pursuance of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain.”  Ballard v. State, 31 Fla. 266, 12 So. 865.

O'Mara has indicated that Zimmerman's attempts at raising himself while pinned under Trayvon constitutes his attempt to "retreat" but because of Trayvon's formidable size, he was unable to retreat. But this does not explain why Zimmerman did not announce to Trayvon that he had the gun and intended to shoot. Law enforcement is trained to announce that they intend to shoot before doing so. If Zimmerman had the time to move and position his hand so as to be sure and not shoot it, he had the same time to speak his intentions to Trayvon.

Zimmerman admits that he never told Trayvon who he was despite there being at least 3 opportunities to have done so. Zimmerman does not give Trayvon forewarning that he is getting ready to shoot him in the heart at close range. According to Zimmerman's statements, he had Trayvon in a wrist hold and he drew his gun. Common sense tells a reasonable person that this would have been the time for Zimmerman to speak regarding his intentions and the opportunity for Zimmerman to safely retreat from the altercation. Why didn't he do that? Instead, there is a 911 tape that clearly evidences that Trayvon was begging for his life when the shot was fired. The wails lasted for 40 seconds or more and are excruciating to listen to when you understand what the ultimate outcome was. It is believed that the 911 tape reveals two voices, one that is making demands, and another that is pleading for his life. If the prosecution is able to have forensic experts decipher the words on this tape, the case will be over.

Zimmerman will fail to be able to satisfy the elements of Florida Statute § 776.041(2)(b).

Fear of imminent death or great bodily harm

As to the second element, Zimmerman cannot prove that he had a reasonable belief that deadly force was required to prevent imminent death, great bodily harm, or the commission of a forcible felony.

The use of deadly force only becomes justified when “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm.” No matter how subjectively real the belief is, an unreasonable belief does not provide any right of self-defense. The fear of imminent death must be based on objective facts “such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necessity for taking life real.” Ammons v. State, 88 Fla. 444, 454, 102 So. 642, 645 (1924).

If Zimmerman was not actually getting his head deliberately bashed into concrete — which, from the investigator's testimony at the bail hearing leads one to surmise that prosecutors do not believe occurred as Zimmerman claims and given that the forensic evidence indicates that there is none of Zimmerman's DNA on Trayvon's hands, cuffs or sleeves -- then Zimmerman was not justified in using deadly force against Trayvon, no matter what his actual beliefs were. Zimmerman may have had the adrenaline rushing through his veins, may have perceived his opponent as a murderous gang-member rather than a skinny teenager because of the presence of a hoody; it’s possible Zimmerman really did think that a wrestling match on the grass with a skinny teenager somehow put his life in mortal danger. But his hyperactive threat perception system does not excuse him.

An individual’s right to life is not contingent upon maintaining a constant impression of harmless frailty, “men do not hold their lives at the mercy of excessive caution or unreasoning fear of others.” Ammons, 88 Fla. 444 (1924).

Even if Zimmerman truly believed he was somehow in danger for his life, he was not thereby granted permission to kill Trayvon if his fears were the product of an unreasonable mind. And there is plenty to suggest Zimmerman was in fact acting out of excessive caution and unreasoning fear that night. His hyperactive vigilance, his willingness to see a boy returning home from a candy run to the store as a grave threat to his neighborhood, his professed fear for his life due to a tussle with an unarmed boy that he outweighed — if the jury finds from Zimmerman’s behavior that his fears were unreasonable, and that his fear for his life due to a couple bumps on the head was not practical, then the killing is not justifiable as self-defense.
Add to this that Zimmerman admits that he had the wherewithal and time to contemplate that he not shoot his other hand, aim, and pull the trigger.

The evidence indicates that Trayvon was not punching Zimmerman in the face, bashing his head into the pavement, or smothering Zimmerman during the struggle, which is supported by eyewitness testimony and by the testimony of paramedics that Zimmerman refused treatment. Rather, the complete lack of any of Zimmerman's DNA on Trayvon's hands supports a finding that such never occurred. Also, immediately before firing the fatal shot, Zimmerman admits the two were struggling over the gun. He states that he managed to gain wrist control over Trayvon and gain control of the weapon, aim and fired one shot, hitting Trayvon in the heart. It was during this struggle for the weapon—and not during an attack on Zimmerman—that Trayvon was killed. Because Defendant was not under attack, but was struggling for the weapon, there was no reasonable belief that deadly force was required.

Although younger than Zimmerman, Zimmerman was larger and heavier than Trayvon, and under the circumstances, the Court will most likely not find that Trayvon's size caused any reasonable belief of danger. As such Zimmerman cannot prove that Trayvon's actions created a reasonable belief that deadly force was required to prevent imminent death, great bodily harm, or the commission of a forcible felony. As such, Zimmerman will fail to be able to satisfy the elements of Florida Statute § 776.041(2)(a).

Conclusion

Generally, a defendant who initially provokes the use of force against himself cannot rely on § 776.012 or § 776.013(3). Fla. Stat. § 776.041. However, a defendant can rely on the statute if he or she proves that the other party’s responding force is so great that the defendant fears imminent death or great bodily harm and has exhausted every reasonable means of escape; or if the defendant withdraws from physical contact and indicates the withdrawal to the party who continues the use of force. Fla. Stat. § 776.041(2); see also Darling v. State, 37 Fla. L. Weekly D506 (Fla. 3d DCA Feb. 29, 2012). Here, even if Zimmerman had satisfied the elements of § 776.012 or § 776.013(3), he would not be entitled to immunity because he failed to prove that he did not provoke the use of force against him. Further, he did not prove that he was still entitled to the use of force even if he was the initial aggressor because (1) the force exercised by Trayvon was so great as to create fear of imminent death or great bodily harm and Zimmerman exhausted every reasonable means of escape; or (2) Zimmerman withdrew from physical contact, indicated the withdrawal, and that Trayvon continued the use of force.

In summary, the Court will find that Zimmerman is not entitled to rely on §§ 776.041. Because Zimmerman cannot prove that he can satisfy either § 776.012 or § 776.013(3), the Court will conclude that Zimmerman has not proved that he is entitled to immunity from prosecution pursuant to § 776.032.

The Best Statement I have Read on this Case:

If the jurors who will ultimately decide Zimmerman's fate are people of reasonable minds, they will recognize that Trayvon was walking on a public street, confronting no one and was himself confronted by a self-appointed mediator of public safety. He was confronted and quizzed — and the mere questioning of his presence by the way is something that a sworn police officer, without probable cause, would not be able to do while compelling an answer. Zimmerman had no legal justification whatsoever for compelling any answer or response or halt by Trayvon. Trayvon was within his rights to say, go fuck yourself and keep walking. He was within his rights not to be queried about his whereabouts, or about his purposes. To do so and insist on your quasi-authority as a neighborhood watchman is to violate the 4th Amendment rights of another citizen. And clearly that is the premise behind this confrontation.

Had Trayvon been allowed to walk while black in a Florida subdivision, he would be alive. Had Zimmerman not been armed, he would not have held the arrogance to confront of a fellow citizen without any probable cause to believe that the citizen was engaged in a crime. Had he not confronted that citizen without probable cause, the confrontation would not have elevated to fisticuffs. And had he not been armed in that confrontation, it would have remained a fistfight. Had the state of Florida not horribly corrupted hundreds of years of self-defense common law, Zimmerman would not have been empowered to make such appalling and fatal decisions.

Under the Bill of Rights, Trayvon has the right to walk and be black and not to answer the curious questions of an untrained but armed police-want-to-be who has no legal status to detain or question or compel evidence from a fellow citizen. But hey, he stood his ground. And now a teenager who wasn’t committing any crime when he was first approached is dead.

As Florida law now stands, an extraordinary, untrained civilian — someone who fancies themselves to have legal authority that they should not in fact have, someone armed with a concealed firearm, someone empowered by a new law that values real estate more than life — he can proceed to escalate that moment until violence ensues, at which point, being the only one carrying a concealed and deadly weapon, he can take a human life that should never have been at risk in the first place.
Trayvon was unarmed and was walking. Zimmerman was armed and felt empowered to stand his ground and question Trayvon for being unarmed and walking. A confrontation resulted that would not have resulted if Zimmerman had picked up the phone and delegated his concerns to trained law enforcement officers who understand the practical application of probable cause and the absolute right of free citizens to resist interrogative efforts by officers. A civilian or a cop can approach anyone ask them questions. But only a cop understands that he is not, without probable cause, entitled to cooperation. That is what the U.S. Supreme Court has ruled. A cop can ask anyone anything. But one does not have to respond unless one is detained by the officer, and the officer can only detain you with probable cause. An ignorant, self-aggrandized neighborhood watch volunteer carrying a deadly weapon may or may not understand their lack of standing in attempting the approach. And that lack of understanding may indeed lead to escalation and violence and tragedy.

That is what happened here. Zimmerman was no cop. He had no probable cause. And worse, he had no training to understand the tenuous legality of his authority. Meanwhile, Trayvon did nothing to require his cooperation or detention. So a confrontation began and an argument ensued. Zimmerman stood his ground against an unarmed man that he unilaterally approached and challenged. Trayvon is dead. Zimmerman is utterly unjustified, regardless of whether Trayvon was agitated enough by having his civil rights violated to have engaged in common assault or mutual combat. Trayvon was unarmed. Zimmerman had the gun.

Zimmerman’s attorneys are already invoking the SYG statutes as a means of mitigating against a judge’s or jury’s determination that the provocation here originated with him. And before that law was on the books, there is no ground on which he ought to have been standing. The existing self-defense laws would allow for him to make the argument that he was in reasonable fear of death or serious injury when he elected to use deadly force against Trayvon. That was the legal standard before the Florida legislature butchered it. So why make his use of deadly force easier than that? Why make it a matter of pride or real estate rather than genuine fear of death or serious injury? Why, except that the gun lobby is now writing laws that obviate even their previous credo that guns don’t kill people, people do. Now, people aren’t even responsible for taking life. Shit just happens. The change in the law is appalling, unjustifiable and unnecessary — unless you value pride and real estate and property more than human life itself.

The arguments for equivalency between Zimmerman and Trayvon because Trayvonn may have been moved to common, non-lethal assault during the confrontation, or even less, to become involved in some mutual non-lethal combat, are subject to my full disregard and contempt. There is dishonesty in that false equivalency that goes to the heart of what went wrong and took a life in Florida.

After Trayvon's death, false pictures that depicted a thug have been widely circulated in email and in the media to generate cause for Zimmerman and justify the shooting. O'Mara has groomed social media and school records in an attempt to find some negative evidence to be trotted out as a defense to encourage aquittal. This type of defense is disgusting. That is the reason we allow law abiding citizens to carry guns, isn’t it? To protect ourselves from the criminal element who would threaten us with life threatening consequences? What disgusts me is that “he was black and all blacks are criminals and therefore deserved it.”

For hundreds of years of English common law and American jurisprudence, the responsibility for taking a human life rested with the taker of human life. Once they had acknowledged the act itself and been proven to have undertaken the act itself, it was incumbent upon those who had committed homicide to prove that there was mitigation for the life-taking. If there was actual evidence that the homicide occurred in self-defense then the means to present that evidence already existed throughout the entire criminal justice system.

Now, however, we have gone further and tilted the scales of justice. Now, it is incumbent upon the state to prove a negative, effectively — to prove that it was unreasonable for the life-taker to have believed he was in sufficient jeopardy to use lethal force. Get that? Now, before holding a citizen responsible for killing another citizen in twenty American states, a prosecutor must first prove that it was implausible or unreasonable for the murder to have been in self-defense. Until this point in American history, it was the opposite. It was incumbent on those who took human life to prove with actual evidence — and not merely through their state-of-mind suppositions, and their sense that there was no other way to proceed if they desired to maintain their real estate and pride — that they were obliged to kill, that their use of lethal force was the only alternative.
That is the issue here. It’s the issue whether you are conservative or liberal or libertarian or Marxist. As a legal doctrine, stand-your-ground is transformative and revolutionary. And it is worthy of reconsideration regardless of who we choose to vote for and what ideology we embrace. That is why law enforcement groups oppose the sea change. Not because it interferes with constitutional purity, or because they are in your eyes reactionary bastards, but because it upends years and years and years of the most basic precepts of our common law, beginning with the Biblical invocations against killing.

And right now, as a simple fact, the greater share of the growing number of victims of stand-your-ground legislation happen to be people of color, which, if you know any such folk or be of that hue yourself, can also be of some reasonable and immediate concern. Clearly, from your remarks, you care little about this reality. But other citizens are of the opinion that a civil rights challenge and affront to any one of us as Americans, regardless of our tribe, is ultimately an affront to us all. That value, too, is embedded in the constitutional protections we all enjoy.

These Stand Your Ground statutes are dystrophic and brutalizing. They are bad laws for those who believe in crime and punishment and individual responsibility. You ought to be able to play a stereo too loud or not answer the questions of a citizen’s watch enthusiast without being shot to death. Any political ideology that rationalizes such an outcome isn’t worth much spit.

And while the Zimmerman case has not charged racial hate crimes, this is about race and nothing but, and it is a systemic threat to young black males. And the two recent cases involve instances in which the defendants approached and provoked the victims, not the other way around. And the victims were not carrying or brandishing firearms. And yet two young black males are dead.

There are times when white people want to say something is not racial and sneer at black demagoguery. And they can do so because the systemic racial bias is not self-evident. Stand-your-ground statutes and their actual use against actual human beings is not the place to do that. If you think there isn’t a fundamental racial component to this, you are being willfully, almost desperately obtuse.

Before the NRA and callow lawmakers got involved in this legislative disaster, there was the ability to make a legitimate self-defense claim established in every state of the union, and indeed, it is a foundation of our common law. You can make that defense in presenting evidence to police investigators, or before a grand jury, or even after indictment in proffer sessions with prosecutors. And then you can offer it again at trial, before a jury of your peers. And somehow that wasn’t enough.
It used to be said by gun-rights advocates that guns don’t kill people, people do. Now those same folks are arguing that people don’t even kill people, that shit just happens. Those folks are not being fair. They are excusing an immoral denigration of human life under the law. I can guarantee that if this resulted in the loss of life of one of their loved ones, it would be a different story and the first time a black man shoots a white kid in Florida and claims he was standing his ground, this will become self-evident.

This is about the effects of the SYG law on the ground. Anyone with a gun, if they believe themselves to be under significant threat and can conjure even a vague scenario that argues for such, can take a human life with less chance of being legally responsible for the action. We know that people of color produces fear merely by being people of color; if you’ve tried to be black and drive a vehicle in these United States, or walk at night through a fashionable neighborhood, you are more vulnerable to this dynamic.

Trayvon is dead. He has now been tethered to another young black victim. And elsewhere in Florida and in other states, similar violence has occurred against unarmed people of color in the wake of this new legal standard. Racism exists and remains persistent for a number of reasons, and it will be so for the foreseeable future with some portion of the American populace. Given this, we need to get these laws off the books right fucking now.



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