Legally, Who Was the First Aggressor?

Sticks and stones
May break my bones
But words will never hurt me

As many commentators have opined, including myself, Angela Corey’s probable cause affidavit to support a charge of Second Degree Murder is not only a stretch, but extremely lacking in objective facts.

Boiled down to its essential elements, the probable cause affidavit reads:

  1. “Trayvon Martin was on his way back to a townhouse where he was living when he was profiled by George Zimmerman.”
  2. Zimmerman called the non-emergency police number and pursued Martin.
  3. When the dispatcher realized Zimmerman was pursing Martin, he instructed Zimmerman “not to do that and an officer would meet him.”
  4. “Martin attempted to run home, but was followed by Zimmerman.”
  5. “Zimmerman confronted Martin and a struggle ensued.”
  6. “Martin died from a gunshot wound.”

As was highlighted by Zimmerman’s attorney, Mark O’Mara, the prosecution engaged in selective word use when drafting their probable cause affidavit.

Where followed would have been appropriate, they used “pursued.” Where approached could have been used, they used “confronted.”

Which begs the question; why? Why did Angela Corey elect to use such specific language in the probable cause affidavit?

The answer is quite simple, in order to survive the inevitable Motion to Dismiss based upon Self Defense that will be filed by George Zimmerman’s attorney, she must convince the judge that Zimmerman was the “First Aggressor.”

The First Aggressor Rule

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.”

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 Martin to attack him in someway.

This begs the question though, what would constitute sufficient provocation by George Zimmerman such that he would forfeit right to self-defense?

Sufficient Provocation

According to Wharton’s Criminal Law treatise, an encounter is provoked, thereby branding the defendant as an aggressor and stripping him of his right to self-defense, where the defendant:

  • Assaulted the deceased;
  • Unlawfully arrested the deceased;
  • Fires the first shot in a standoff;
  • Leaves a fight, only to return with a weapon; and
  • Is caught sleeping with the deceased’s wife.

Insufficient Provocation

On the other hand, Wharton’s Criminal Law states that a defendant does not become an aggressor where the defendant:

  • Demands an explanation of offensive words or conduct;
  • Discusses settlement of a claim;
  • Discusses a sensitive subject;
  • Hurls inappropriate language and insulting epithets;
  • Engages in an inconsiderate act;
  • Travels near a neighbor who has previously threatened him;
  • Arms himself to repel an anticipated attack, while going about normal business;
  • Provides an opportunity for conflict, but does not cause it; and
  • Arms himself with the intent to cause a conflict with the deceased, but does not perform an act manifesting his subjective intent to cause the conflict.

This line of reasoning was followed in Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001), which held that hurling racial slurs at another person does not constitute provocation, rather the defendant’s provocation must be done “by force or the threat of force.”

Legally, who was the Aggressor?

With examples of sufficient and insufficient provocation as a backdrop, the question turns to what evidence does the State have that George Zimmerman legally provoked the altercation between he and Trayvon Martin?

Noticeably absent from the Probable Cause affidavit was any evidence of who provoked the fight; but we do know that George Zimmerman claims that it was Trayvon Martin who not only followed him back to his car, but who also threw the first punch. If that is true, or goes un-rebutted by the State, then Trayvon Martin was clearly the first aggressor as a matter of law.

And while we have not had an opportunity to review George Zimmerman’s statement in its entirety, based upon what we do know, there does not appear to be any evidence that would contradict his account of Trayvon Martin throwing the first punch.

Thus there would seem to be no evidence that George Zimmerman legally provoked the fight. And if he did not legally provoke the fight, then he cannot be considered the First Aggressor.

Assuming George was the First Aggressor

Although it is my opinion that there is no evidence to support the conclusion that George Zimmerman was the aggressor as a matter of law. Let’s assume for the minute that Trayvon Martin was lawfully defending himself because he was provoked by George Zimmerman’s “pursuing” of him; the questions then need to be asked:

  1. Did George Zimmerman forfeit his right to self defense entirely; and
  2. Could Trayvon Martin respond with disproportional force to the initial “confrontation.”

The answer to both of these question is No. George Zimmerman did not forfeit his right to defend himself entirely and Trayvon Martin could not resort to Deadly Force simply because he was being “pursued” or was subsequently “confronted” by George Zimmerman.

Disproportionate Force Exception

Codified in Florida Statute 776.041(2)(a), the “Disproportionate Force” exception qualifies “The First Aggressor Rule” and provides limited circumstances by which an initial aggressor’s right to self defense is restored.

The exception holds that even if a defendant “initially provokes the use of force against himself” if the response is disproportionate to the initial provocation, then the defendant’s right to self defense is restored.

More importantly, he can resort to deadly force if he has no means of escape and reasonably believes that deadly force is necessary to defend himself against the disproportionate reaction by the other party.

In George Zimmerman’s case, it seems pretty clear that he found himself on his back and was having his head hit against a hard surface. We also know, based upon the funeral director’s statements, that Trayvon Martin did not have any noticeable injuries.

Thus the safe conclusion would be that Trayvon Martin had George Zimmerman in a compromising position that, in my opinion, would have been disproportionate to any perceived or real provocation made by George Zimmerman.

And if George Zimmerman did find himself on his back, was having his head hit against a hard surface, and felt his only choice was to use his weapon to defend himself against Trayvon Martin’s disproportionate response, then his use of deadly force to defend himself would have been excusable homicide.

As a result, the charge of Second Degree Murder would be subject to dismissal under Florida’s self-defense law.

Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

12 thoughts on “Legally, Who Was the First Aggressor?”

  1. Richard, thanks so much, your opinion explains a lot of the questions I had after watching the hearing. imo, O’Mara did a good job of defending GZ & making some points, a most difficult client & defense to put on & prepare I would think. O’Mara is impressively sharp, he made the STATE look ill prepared, although it was only a bond hearing, it the STATE made a poor showing which makes me questiion even more the overcharing in this case, many analyst think it should have been a “manslaughter charge.”

    I was disappointed in the State at the hearing, instead of projecting confidence in their case, their investigator left me thinking wtf?

  2. RH—thank you for these very thought provoking articles. I have a few thoughts in response to your discussion, and would be interested in your reply.

    *Hurls inappropriate language and insulting epithets

    Meaning, the “f*cking punks” and “a$$holes always get away” comments ALONE would not make him the aggressor? But then, how do these comments play into the “depraved indifference/ depraved mind” malice that is needed for 2nd degree murder? A number of individuals have posited that these easily provable statements will be used to support the 2nd degree depraved mind requirement, and that is why they were included specifically in the charging docs. But if these comments alone are insufficient to consider someone an aggressor, then the State must have a lot more to support 2nd degree, right?

    Can you comment on the issue of TM acting in self defense of what he perceived was a stranger following him? Because, again, if I understand your article correctly, TM responding with NON-lethal force (fists, etc.) was legally okay during the altercation, and then GZ becomes the aggressor (again?) using disproportionate force (gun). Do you think this is the basis for the 2nd degree murder charge, vs manslaughter?

    And with GZ now declaring publicly “I didn’t know if he was armed” (and I suspect Mark O’Mara was NOT happy with that statement on the record!), doesn’t that statement alone negate his ability to claim self defense with deadly force? It seems like it would have been far better to say “I THOUGHT he was armed.”

    Do you think that fact that GZ made the call to a NON-emergency line lessens any aspect of intent or depraved mind? Or maybe better to phrase it, what impact, if any, is the fact that GZ called a non-emergency police number, vs 911? Because in my mind, that is huge as to the depraved indifference condition for 2nd degree murder? It appears that he was doing exactly what NW is supposed to do—phone in anything they perceive as suspicious, and let LE investigate. But then we circle back to that pesky getting out of the car and following part that everyone perceives as provocation.

    Can you comment on dual sovereignty, and the Feds waiting and watching to see what happens in the State case? Because as I understand it, there is no double jeopardy that attaches when there is dual sovereignty. The SCOTUS has said they can have another bite at the apple because of the right of dual protections under both state and federal laws. (Did I say that right??!) The Feds are free to bring charges at any point, and the death and use of the gun makes the punishment the same under State or Federal law. Do you think the Feds will bring charges under the Shepard/ Byrd Hate crimes Act if GZ is convicted of anything less than 2nd degree murder (manslaughter), or acquitted?

    Anyway, thanks in advance for any response you have time for. Sorry for so many questions!

  3. I may be one of the few Americans that hasn’t followed this story closely. Last night, I decided to visit a popular “crime” forum to see if I could catch up a bit on the facts. However, instead of finding what I was hoping for, I came across post after post full of vitriol and specious attacks against the character of George Zimmerman.
    Right now, I don’t think I have enough facts to form an opinion in my mind. But I am very thankful that you took the time to write such an insightful and objective analysis of the situation. I look forward to more posts from you as the trial progresses.

  4. Mr. Hornsby,

    For what seems to be like years of knowing you I must say that your writing capabilities are just as refined as your skills as a lawyer. I have thoroughly enjoyed every article you’ve written and have considered your opinions as concrete however; I would like to approach this in a different way and hope you don’t object.

    With the understandings of the laws referenced there is one aspect I believe you fail to recognize which is the human reaction. I see your points and understand that in the court of law arguments need to be substantiated and held to the letter of the law but the human element is never considered. Casey Anthony ring any bells?

    If you, Mr. Hornsby, were in your car following me at a slow speed, which is what I suspect Zimmerman was doing when he made his first call to a 911 dispatcher, I would not be oblivious to what you are doing; especially knowing that you are looking at me while you are on the phone. If you are continuing to make calls out of my ear shot what do you think I’m thinking? You park your vehicle at the last point that you saw me. I don’t know you. I don’t know that you have good intentions as the neighborhood watch. You did not identify yourself as such so who are you? I am a black man walking. I am a black man who is on the phone to my girlfriend. I am scared. You park your car- still on the phone and are now approaching me (In my opinion the prosecutions re-wording is acceptable because with all the factors considered Zimmerman is pursuing). Again, I’m a black man who is being pursued by someone I don’t know. I’m scared. I run. I hide. I can tell that you are looking for me and my instincts come into play. Fight or Flight? I elect to fight. Instead of waiting for the unknown and or what your intentions are I defend myself from what I perceive as an imminent confrontation/threat because as of yet YOU have not indentified yourself.

    In my opinion, as well as several others possibly, Mr. Zimmerman DID lose his right to self defense/stand your ground once he exited the car. Mr. Martin made no attempts to dawn a weapon. Mr. Martin had a can of iced-tea and a bag of skittles which, I guess, is a lethal combination? Mr. Zimmerman exited his vehicle with a gun. Legally permitted I know however his proclamation of being head of the neighborhood watch is contradicted by the gun he has holstered. By-laws of the neighborhood watch prohibit individuals to carry a weapon and pursue a “suspect” without law enforcement so how is this acceptable?

    As it stands has anyone explained what Martin has done wrong? Are you stating that if you were in Trayvon’s shoes that your murder was legit? Do you not see Zimmerman as the aggressor and if not why? Spare me the legalities but instead focus on the person who is laying there dead. The person who was just on the phone with his girlfriend and was screaming for help and the survivor is someone who describes himself as head of the neighborhood watch…seems rather curious.

  5. Richard

    I too have enjoyed your readings and feel that you may be incorrect on this one. You were wrong on Casey and you likely will miss the boat here.

    I firmly believe that had the races been reversed, the African American would have been sitting in jail. In fact Nejame echoes this very same sentiment on a CNN editorial just yesterday.

    At the end of the day, I do not believe that we live in a society that allows an unarmed man who is breaking no laws to be gunned down by a fellow citizen who decides to pursue him simply based on a suspicion.

    I do think too that you as a defense Attorney will likely have a different bias than say a Prosecutor who is rendering an opinion on this case.

  6. The only catalyst I can think of for a nonphyscial event to turn into a killing in 60 seconds is the introduction of the gun. Pulling a gun out and pointing it at someone is an assault. I believe that’s what Zimmerman did. No proof. Just a behavioral observation, as in B-man’s well written scenario.

    1. Thats actually imo a pretty logical behavioural obvservation. GZ is claiming TM ambushed him after he lost sight of him. That is not logical to me, not when TM was close to his father’s girlfriend’s home and he was being followed by a complete stranger on a dark, rainy night. Zimmerman clearly admits he had been following TM and tells the despatcher that TM was “checking him out”and next that “he ran”.

      I dont believe Zimmerman was out to harm anyone that evening, but I certainly find it more plausible that Zimmerman didnt want this particular “asshole to get away” Also Zimmerman Senior has stated Trayvon tried to get George’s gun. Well he had to see it first……No?

      IMHO this is not a case of second degree murder, but GZ’s actions imho certainly need to be scrutinized. And stating at the bond hearing that he thought Trayvon was only a bit younger than him, should have been exploited by the prosecution. He cleary described Trayvon to the despatcher as being in his late teens.

  7. At the bond hearing we learned the state has a witness to a two-person foot chase, just prior to the shot fired. In the darkness, the witness couldn’t tell who chased whom, but Zimmerman’s story is that he was approached from behind, and after a short verbal exchange was “sucker punched” and fell to the ground. If this witness is credible, then George is not telling the truth.

    I feel that in this case Zimmerman assaulted the deceased and attempted to arrest the deceased. Even if the foot chase was actually Trayvon chasing a fleeing George Zimmerman, that’s not his recollection of events.

    Chris Serino, the lead homicide investigator, who walked the scene with George Zimmerman and heard his words, examined his statements, saw his wounds up close and interviewed witnesses felt he was lying and should have been charged with manslaughter before even knowing about the phone call to the girlfriend and other details.

    George’s STORY is a great defense against murder charges. It fits all the legal points quite well – too well possibly. It’s just isn’t the truth.

    Additionally we have the location of Trayvon’s body, south of the cut thru path and in between the buildings, which suggests strongly that George Zimmerman closed the gap between these individuals since he deviated from his route to return to his vehicle. Did he have the right to be there, where there were no street signs for him to be looking for (the other part of his story, his explanation for why he was walking around in the dark NOT pursuing the teen)? Yes, of course he could walk there lawfully. But again, that is not his story. His story is that Trayvon closed the gap somehow. He’s not truthful about where he was going and why.

    On the night, he told the operator to cancel the plan to meet the responding officers at his truck, but instead to call him for his location. It’s reasonable to assume he was still trying to find the youth, and kept looking for him until he found him. But after the shooting, he’s concocted a self-defense narrative that doesn’t fit with his words, actions and location on the night he shot and killed an unarmed teenager.

  8. In your article above , you stated.. “The answer to both of these question is No. George Zimmerman did not forfeit his right to defend himself entirely and Trayvon Martin could not resort to Deadly Force simply because he was being “pursued” or was subsequently “confronted” by George Zimmerman.”

    My Question is. IF Trayvon Martian in your assumptive comments, could not resort to deadly force simply because he was being pursued, or was subsequently contfronted by George Zimmerman……… Wouldn’t the reverse be also TRUE..? Zimmerman could not resort to deadly force simply because he was being pursued or confronted by Travon Martin???

  9. One more point if I may… I think Trayvon Martin got frightened by being followed by George Zimmerman in Zimmerman’s truck and took off walking across the yards to get off the path a truck can go… and , I believe it was at this moment when Zimmerman got out of his truck and pursued the boy on foot. There seems to be no connection between this event and the “stand your ground” law (if anyone could’ve stood their ground, it should have been Trayvon).

    This does not appear to meet self defense standards either.Zimmerman says Trayvon was trying to take Zimmerman’s gun!! If he wasn’t threatening Trayvon with a gun, the boy would not have known he was carrying a gun.
    I would appreciate your continued thoughts on this case.

  10. Thank you Mr Hornsby… I am reassured that the law does not exclude COMMON SENSE….Because I was beginning to wonder…..

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