Approximately a week ago I, the author, attended the “Under a Microscope: Stand Your Ground Gun Law” symposium, sponsored by First Choice and produced by The Orange County Bar Association Paralegal Section. The event was moderated by Paul Owens of the Orlando Sentinel and consisted of a three-person panel: Senator David Simmons Esq., one of the sponsors of Florida’s Stand Your Ground Law; the Honorable Bob LeBlanc; and Zahra Umansky Esq. The event was eye-opening to say the least and the balance was tipped. In fact there was only one slide under the microscope – the slide provided by the gun lobby – and it prompted me to write this article.
The task for lead prosecutor Angela Corey and her team is to prove, beyond a reasonable doubt, the guilt of George Zimmerman. This will be a daunting task in light of the favorable rulings and the adroit lawyering of Zimmerman’s defense counsel Mark O’Mara. Thus far O’Mara has been able to disqualify two judges, obtain reasonable bail at both bond hearings and allow certain freedoms for Zimmerman despite the fact that Zimmerman is a documented liar who has “flouted” and “tried to manipulate” the system. Nevertheless Zimmerman’s character is not the issue. The first step to conviction: Angela Corey must remove the bulwark of Florida’s Stand Your Ground (SYG) defense!
There are three applicable statutes that apply specifically to SYG but this article will focus on only two: Florida Statutes § 776.013(3) and § 776.041(2). Florida Statute § 776.013(3) applies to George Zimmerman’s claim of self-defense and Florida Statute § 776.041(2) would apply to the prosecution.
Florida Statute § 776.013(3) reads in relevant part:
A person who is not engaged in an unlawful activity and who is attacked … has the right to stand his … ground and meet force with force, including deadly force if he … reasonably believes it is necessary to do so to prevent death or great bodily harm to himself … to prevent the commission of a forcible felony.
Florida Statute § 776.041(2) reads in relevant part:
The justifiable … [use of deadly force] is not available to a person who [i]nitially provokes the use of force against himself … unless:
(a) Such force is so great that the person reasonably believes that he … is in imminent danger of death or great bodily harm and that he … 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 … desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
There are a lot of moving parts to SYG but once the statutes are read together the picture should become clear.
In a nutshell, Fla. Statute § 776.013(3) allows an individual who is not engaged in an unlawful activity to use deadly force if he is in reasonable fear of great bodily harm or death. The key to this section, for the prosecution, is that the fear must be reasonable, and more importantly, the individual must not be engaged in an unlawful activity. Whereas § 776.041(2) does not allow the use of deadly force when the person claiming SYG is the initial aggressor where the aggressor has not tried to use every reasonable means of escape without the use of deadly force or where the aggressor does not clearly communicate his desire to peaceably withdraw.
These two statutes give the prosecution a couple of options to attack Zimmerman’s claim to SYG: was Zimmerman engaged in a wrongful activity or was his fear of great bodily harm or death reasonable; and/or was Zimmerman the first aggressor, and if he was, did Zimmerman clearly communicate to Martin his desire to withdraw peaceably and did he use every reasonable means of escape without the use of deadly force?
The first option involves two principles enshrined in § 776.013(3), particularly the wrongful activity and reasonability of the fear. First Zimmerman cannot be engaged in a wrongful activity. The court has ruled that wrongful activity involves felonies, specifically, forcible felonies as defined by statute which includes, but is not limited to murder, manslaughter, kidnapping, aggravated assault, aggravated battery, aggravated stalking, and any other felony which involves the use or threat of physical force or violence against any individual. In addition to forcible felonies the court has classified as wrongful a felon carrying a concealed weapon or a non-felon doing the same without a conceal-carry license. However it would be important to note that the court has made it clear that it has not ruled on all circumstances that would be classified wrongful under SYG.
Several things come to mind after understanding what the court has classified as wrongful. And no, contrary to popular belief, following someone or failing to adhere to the commands of an emergency dispatcher is not wrongful. There is no law against following people. If it was illegal to follow a person, then law enforcement themselves, even the paparazzi, would be guilty of that crime. Similarly, failing to obey the commands of an emergency dispatcher is not a crime under SYG and my source for that is from a Texas SYG ruling along with the fact that it is not a crime in Florida to disobey an emergency dispatcher unless the dispatcher giving the order is a law enforcement officer and the person failing to obey is aware a law enforcement officer is giving the command.
Now applying the principles of “wrongful” to the facts of this case from a prosecutor’s point of view would inevitably invite the weighing of motives. Without going into particulars when one considers the perceptions and motives of both Martin and Zimmerman it leads the trained mind to ask a few questions, such as who did what and is that person’s motive consistent with his actions?
Since Trayvon cannot give his account of the events that led to his death, we will review Zimmerman’s account. To recap Zimmerman stated that while he was on the phone with dispatch Trayvon took off running. Apparently Trayvon realized that Zimmerman was indeed following him after Trayvon passed by Zimmerman’s vehicle and looked at him. In fact Zimmerman can be heard saying, “S**t he’s running…” This was followed by the sound of a seatbelt release mechanism, a vehicle door opening, and a frantic/excited and slightly out of breath Zimmerman pursuing a running Trayvon. Now Zimmerman’s call was premised on reports of a series of break-ins which had occurred in his neighborhood, and the fact that he saw an individual with his “hand in his waistband … that was up to no good … on drugs or something [while it was dark and raining].” Though unknown to the public at the time, his wife Shelley was an alleged recent witness to a home invasion whereby an unknown number of robbers invaded a home with a new mother with her very young infant present.
On the other hand, you have Trayvon, who was on the phone with his girlfriend walking back to his father’s home (which is where he was staying) after a trip to the 7/11 where he purchased some skittles and ice tea. Trayvon made his trip during the half time break of the NBA All-star game. He was a huge basketball fan, and his younger brother was at home awaiting his return. Trayvon apparently noticed someone, whom we now know was Zimmerman, following him in a vehicle. We must remember that Trayvon was in an unfamiliar neighborhood (he was visiting), and it was a dark and rainy night. And although he allegedly told his girlfriend that he was not scared and that he was going to walk fast, back to his father’s place, he ran – as stated by Zimmerman.
The accounts up to this point are undisputed. However, from this point on, we have only Zimmerman’s account. According to Zimmerman, the running Trayvon apparently gave up on his escape, turned and “jumped” an adult heavier Zimmerman in the dark while it was raining and while he was only approximately 70 yards from his father’s home (safety). Moreover, Trayvon, who was approximately 50 lbs lighter, but roughly 5 inches taller, beat the living daylights out of Zimmerman, bashing his head, straddling Zimmerman, pinning him down to the ground, without Zimmerman throwing not even one punch. And while this life and death struggle was on going, Trayvon was able to use both his hands to block the mouth and nose of Zimmerman and utter, “You gonna die tonight,” and somehow reach back for Zimmerman’s gun which he mysteriously knew Zimmerman was carrying although it was dark and raining.
Folks, stay tuned this story has a Part II and it’s the legal arguments based on these factual accounts. I welcome your comments, please be civil, as I understand this is a contentious story and people often get emotional. Please if you have not read my earlier post Zimmerman’s Defense please take the time to read it. To be continued….
For uncut audio of Zimmerman’s call to dispatch please follow the link below scroll down to the 3rd player down with the photo of (approx. 13 year old) Trayvon: click here
For video of George Zimmerman, himself, re-enacting the Trayvon Martin shooting click here
For Part I of the George Zimmerman re-enactment click here