Did George Zimmerman Waive Stand Your Ground Defense?

Today George Zimmerman waived his right to a pretrial Immunity Hearing. Which begs the questions:

  1. Why did he waive the right to the pretrial Immunity Hearing; and
  2. Can he still raise Immunity at trial.

Why did George Zimmerman Waive Immunity Hearing?

The simple answer is because he knew he would lose. The more complicated answer is that a variety of factors made the risks outweigh the reward.

Likelihood of Winning Motion to Dismiss

Every defense attorney knows Judge Nelson is a law and order judge. So when it comes to issues of suppression, dismissal, or admissibility of evidence, she is not going to rule in a defendant’s favor unless there is Black Letter Law supporting the defendant’s position.

And when immunity from prosecution is raised in a pretrial Motion to Dismiss, “the defendant bears the burden of proof on the issue of whether immunity attaches to his actions” and the presiding judge “weighs and decides factual disputes as to the defendant’s use of force to determine whether to dismiss the case based on the immunity.” Darling v. State, 81 So. 3d 574 (Fla. 3d DCA 2012)

But most importantly, on appeal, a judge’s “findings of fact are presumed correct and can be reversed only if not supported by competent substantial evidence.” Id. Translated, this means that if Judge Nelson denied his Motion to Dismiss, George Zimmerman would have ZERO chance of the decision being overturned on appeal because Judge Nelson’s findings of facts and determinations of credibility would be presumed correct.

So given the disputed issues in the case, the questions surrounding George Zimmerman’s credibility, and the racial undertones should the case be dismissed without a trial, George Zimmerman (or more candidly Mark O’Mara) rightfully concluded that Judge Nelson would never dismiss a Second Degree Murder case of this nature.

Everything to Gain, Nothing to Lose?

Knowing that it is unlikely George Zimmerman would win an Immunity Hearing, the analysis then turns to what he has to gain versus what he has to lose.

If he wins the hearing, he stands to walk out the courtroom a free man.

But if he loses the hearing, he has completely revealed his entire defense strategy to the State, undermined any tactical advantage he possessed going into the jury trial, and, more importantly, exposed himself to further cross-examination by the State and impeachment with varying inconsistent statements in the subsequent jury trial.

This is important, because even though Judge Nelson would obviously know about George Zimmerman’s credibility issues; a jury would not. And the less ammunition the State has to impeach or contradict George Zimmerman with at trial, the better chance he has at convincing the jury of his version of events.

So at the end of the day, it boiled down to a simple cost-benefit analysis. Why exercise a “right” with theoretical value, but no practical value.

Frankly, these type of cost-benefit decisions are made by criminal defendants every day.

  • Defendants choose not to testify because they are afraid of how they will be perceived on the stand;
  • Defendants enter into negotiated pleas even though they know they are innocent because they are afraid of a jury not believing them;
  • Defendants elect to have “bench” trials instead of jury trials because they think a judge would be more likely to believe them than a jury;
  • And in a case like this, a defendant has made a decision that a jury is more likely to believe him than a judge.

Secondary Factor: Civil Lawsuit

A secondary factor which I believe weighed on George Zimmerman’s mind (and Benjamin Crump’s mind) is Florida Statute 776.032, which states that a person whose self defense is found to be lawful “is immune from criminal prosecution and civil action for the use of such self defense.”

And under the doctrine of Collateral Estoppel, once a judge determines an issue, that issue is binding on the parties and their privies in subsequent cases. Cook v. State, 921 So. 2d 631 (Fla. 2d DCA 2005); See also Florida Statute 772.114. Translated, this means that whatever decision Judge Nelson made would be binding in any civil suit.

Further, if a defendant successfully obtains immunity, he is entitled to “reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred  in defense of any civil action brought by a plaintiff.” Meaning that Trayvon Martin’s parents could theoretically get stuck paying George Zimmerman money.

And while it has not been determined conclusively by the courts as to whether a criminal judge’s finding of immunity (or lack thereof) is binding in a subsequent civil lawsuit, the clear intent of the legislature is that it should be.

So I suspect that if George Zimmerman would have asserted and won his Stand Your Ground motion, he would raise that ruling as a defense to the civil suit. Likewise, had George Zimmerman lost his Stand Your Ground Motion, Benjamin Crump would have argued that George Zimmerman was barred from claiming immunity in a civil trial.

Finally, and it should go without saying, but should the jury find George Zimmerman guilty, he would be precluded from denying his guilt in a civil trial pursuant to Florida Statute 772.14City of Orlando v. Pineiro, 66 So. 3d 1064, 1074 (Fla. 5th DCA 2011) (It is proper to admit evidence of the person’s conviction in criminal offense for determination in underlying civil case.)

What is unclear however, is what effect a Not Guilty verdict would have. Before the Stand Your Ground law was introduced, it was clear that it had no bearing on a civil suit due to the different standards of proof.

However, current case law is ambiguous as to whether a Not Guilty verdict under the current case law is the same thing as a finding of Immunity by a judge. My gut feeling, as will be explained below, is that a jury verdict of Not Guilty would not act as a bar to a civil suit.

Can George Zimmerman Raise Immunity in the Criminal Trial?

The answer is simple, no. But he can raise self defense. Make sense?

Ever since George Zimmerman was arrested, the terms “Self Defense”, “Stand Your Ground,” and “Immunity” have been used interchangeably.

However, they are each discreet terms in a broad statutory scheme.

  • Self Defense is technically defined as the “Justifiable Use of Force.” It is a finding a judge must make before granting immunity from prosecution or a jury must make before returning a verdict of Not Guilty.
  • Stand Your Ground is a doctrine which holds that one need not attempt to retreat before utilizing deadly force in self defense.
  • Immunity is a protection a judge grants a defendant from being prosecuted based on lawful self defense.

Enacted in 2005, the Florida Legislature enacted Ch.2005-27, § 5, at 202, Laws of Fla. which has been unofficially called the “Stand Your Ground Law.”

Among other things, the law:

  1. Removed the requirement that a person first attempt to retreat before resorting to deadly force to defend themselves; and
  2. Afforded immunity from prosecution or a civil lawsuit to a person found to be lawfully defending themselves.

The Immunity Hearing

What the legislature did not provide was the mechanism for granting immunity from prosecution. However, in 2010 the Florida Supreme Court issued Dennis v. State, 51 So. 3d 456 (Fla.  2010), which laid out the procedure for invoking immunity.

First, the Florida Supreme Court stated that the Stand Your Ground law “contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial.” Id. at 462.

In making this point, the FSC pointed out the purpose of the statute was to “grant defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force.”

Second, the Florida Supreme Court adopted the decision in Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008) as the proper procedure to raise a claim of immunity; which held “that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.”

Thus, any belief by Mark O’Mara that immunity from prosecution could be granted by Judge Nelson during the trial or after a conviction is misplaced. As the Florida Supreme Court has made clear, the request for immunity from prosecution must be made before the trial. As the whole point of granting immunity is to allow a defendant to avoid the stress of a trial in the first place.

Self Defense at Trial

However, even though a person must raise their entitlement to immunity from prosecution before trial. They are not prohibited from raising their self defense argument at trial. See Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st DCA 2012) (“A defendant whose motion to dismiss was denied is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.”)

And the self defense instructions that are submitted to the jury contain the updated instructions that allow a person to stand their ground when utilizing deadly force, rather than the old instructions that required an attempt to retreat first.

Likewise, the failure to hold a pretrial immunity hearing will not result in reversal if a jury rejects a defendant’s self defense argument and finds a defendant guilty. And this is exactly how Dennis v. State, 51 So. 3d 456 (Fla.  2010) (mentioned above) reached the Florida Supreme Court. It is also why any claim that Immunity could be raise after trial would be erroneous.

And even though the Florida Supreme Court held that a judge should hold a pretrial immunity hearing, it nevertheless upheld the defendant’s conviction in Dennis because the jury rejected the self defense argument (which implicitly finds that the State had disproved self-defense). The court essentially found that there was no reason to believe a judge would have found differently than the jury.

Defense has Lower Burden at Trial

Another wrinkle to the Stand Your Ground law is the standard of proof the defense must meet at trial. In a pretrial immunity hearing, they have to convince a judge by a preponderance of the evidence that self defense was lawful.

However, at trial the burden is on the State to prove their case beyond a reasonable doubt and, if the defense raises an affirmative defense, disprove the affirmative defense beyond a reasonable doubt.

The way this works is that “when a defendant claims self-defense, he bears the initial burden of presenting a prima facie (a bare minimum) case of self-defense. Once he meets that minimum threshold, the burden shifts to the State to prove that the defendant did not act in self-defense beyond a reasonable doubt.” Stieh v. State, 67 So. 3d 275, 278 (Fla. 2d DCA 2011).

This scheme is significantly more favorable to a defendant in terms of argument.

Because it is much easier to argue to a jury that “the State cannot exclude the reasonable possibility that the shooting was in self defense” as opposed to convincing a jury by a preponderance of the evidence that George Zimmerman acted appropriately.

And it is this dichotomy in burdens that I think makes George Zimmerman’s decision to forego the immunity hearing a smart choice.

Judge Nelson Could Still Dismiss Case During Trial

One final thing to consider, is that once George Zimmerman puts on “some evidence of self defense,” the State must put on evidence to rebut this self defense claim. “If the State fails to rebut the claim, the trial court is duty-bound to grant a judgment of acquittal in favor of the defendant.” State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998).

But how does the State rebut this claim to prevent the judge from granting a judgment of acquittal? Why “through rebuttal witnesses or by inference in its case-in-chief.” Jenkins v. State, 942 So.2d 910, 914 (Fla. 2d DCA 2006).

Translation, not happening George.

Poor George wants a Bond

So George Zimmerman wants a reasonable bond?

This in itself is not surprising, most every client I have ever represented wanted a reasonable bond.

However, few of my clients ever had a quarter million dollar defense fund, and most importantly few of my clients have ever been caught blatantly misleading a judge about the nature of their assets. (Although I am sure many a defendant before George Zimmerman has lied about their actual assets.)

Does George Zimmerman deserve a bond, in my humble opinion, before his misleading of the court, yes and he deserved a bond much lower than what it was set at. The evidence against him is severely underwhelming. And I believe that the $150,000 bond initially imposed was four times what would have been imposed in a less newsworthy case.

However, I also have little sympathy for the way George Zimmerman allowed the court to be misled regarding his true finances. Killing someone, no matter what the circumstances, should never be a reason to come into a financial windfall and then lie about it.

But more importantly, if the financial windfall is for purposes of defending yourself, it should only be used for that reason; not hid so that you can maximize the amount you get to keep when all is said and done.

So with that said, here are a few things to consider about today’s bond hearing:

The Integrity of the Judicial System

As Mark O’Mara points out, Article 1, Section 14 of the Florida Constitution provides that:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

As you can see, in Florida there is a presumption that a person is entitled to bond and only under three limited circumstances can a judge deny a person bond.

So dispensing with irrational argument for the moment, which would be pure hyperbole and speculation, there is no evidence that George Zimmerman poses a threat to the community or that he will not appear at trial.

To the contrary, the evidence seems to suggest that certain segments of the community pose a threat to George and that he has gone out of his way to cooperate with law enforcement. (In a million years, I would never believe  a person who thought they were guilty would willingly scream help for police so they could get voice samples).

So that leaves us with assuring the integrity of the judicial system; the most troubling issue Judge Lester must grapple with today.

Interestingly, Wells Fargo v. Reeves (Fla. 1st DCA June 13, 2012) is a mortgage foreclosure appeal that recently discussed a similar scenario where the integrity of the judicial system was at issue. (And although this opinion speaks in terms of dismissal of a foreclosure suit as a sanction, the corollary sanction in George Zimmerman’s case would be a denial of bond.) In this decision, the First DCA said:

Fraud upon the court is an egregious offense against the integrity of the judicial system and is more than a simple assertion of facts in a pleading which might later fail for lack of proof. Rather the requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

To support dismissal for fraud on the court, the party alleging fraudulent behavior must prove such by clear and convincing evidence. Inartful pleadings, inconsistent testimony, and even lying to the court by a witness are generally insufficient to support a dismissal for fraud upon the court.

However, the power to dismiss a case for fraud upon the court is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved. A court certainly possesses the authority to protect judicial integrity in the litigation process.  The authority to dismiss actions for fraud or collusion should be used cautiously and sparingly, and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing.

While ultimately the Court reversed the dismissal of the foreclosure action, it seemed to do more on the possibility of good faith defenses that were ignored by the trial court, rather than explicit findings of fraud.

However in George Zimmerman’s case, the judge explicitly made findings of fraud. And so even if George Zimmerman admits his failure to come clean at the initial bond hearing was “wrong” and he “accepts responsibility” (does he have a choice), I believe Judge Lester would be well within his rights to deny George Zimmerman a bond based upon he and his wife’s collusion.

The Trust Fund Defendant

A lot has been made by Mark O’Mara about the defense trust fund, which George Zimmerman supposedly has no control over.

While I don’t doubt that the intent is for Mark to spend the donated money on George Zimmerman’s defense (and by definition his lawyers’ fees), make no mistake at all – that money is George Zimmerman’s. George Zimmerman has complete control, authority, and final say as to where any of that money is spent. If there is any doubt as to the truth of this conclusion, one need look no further than Florida Bar Rule 5-1.1, Rules Regulating Trust Accounts.

On a side note, I have heard of trust-fund babies, but never trust-fund defendants – just saying.

Might Mark O’Mara Secretly Hope Lester Denies Bond

First, Mark O’Mara is one of the most professional and ethical attorneys I am acquainted with, so I discuss this more for hypothetical sake than anything.

With that said, we also know that Mark O’Mara originally was going to represent George Zimmerman Pro Bono, even though he claimed to normally charge in the $400/hour range. He was also going to ask to have Zimemrman declared indigent for costs, in which case the state would pick up the defense costs (due process costs).

But then he found out about that George Zimmerman had in the neighborhood of $250,000 stashed away in his defense fund. While that is less than what the accused acquitted baby killer had available, it is still more than 99% of criminal defendants will ever have available to defend themselves.

Needless to say, Mark O’Mara was probably pretty relieved about his decision to take on the case pro bono, but also pretty happy. Because I don’t care how much you claim to charge an hour (you listening Foghorn Leghorn?), the truth is that clients that can actually afford such an hourly amount are few and far between. More often than not, a criminal lawyer agrees to a flat fee that is paid regardless of how many hours are put into a case.

However, if Judge Lester now set an extremely high bond, say two million dollars, it will likely put Mark O’Mara back in the pro bono category and the State back on the hook for George Zimmerman’s defense costs. Why?

In Florida, and most states, when a person is granted bond, they can satisfy the bond in one of two ways:

  1. Post a Cash Bond for the Full Amount; or
  2. Post a Surety Bond through a bondsman.

Obviously, if the bond is set at more than what George Zimmerman defense fund has, he would have to post a surety bond. However, the posting of a surety bond comes with a hitch: the defendant must pay the bondsman 10% of the bond value. This is known as a Bail-Bond Premium.

Therefore, if Judge Lester sets bond at the two million dollar mark, 10% of the bond premium will be $200K. While not a bad day’s work for a bondsman, it’s a real bad day for the person paying the premium unless the money was never yours in the first place (or at least earned).

So you can bet your bottom dollar that George Zimmerman is not going to hesitate using his donated money to get his butt out of jail as quickly as he can; and there is nothing Mark O’Mara can do or say to stop him from using the defense fund money to pay the Bail-Bond premium.

On the other hand, if the judge denies bail, finding that the integrity of the judicial system cannot be assured, then Mark O’Mara can continue to bill his $400/hour (I wonder if George Zimmerman ever negotiated a contract before he told Mark about the defense fund) and the state of Florida will avoid spending a ton of money on George Zimmerman’s defense while Mark O’Mara spends countless days deposing witnesses that Ben Crump has already gotten a hold of.

Trayvon Martin’s Death is not a Stand Your Ground Case – Sort Of

In the wake of Trayvon Martin’s death, Florida’s Stand Your Ground Law has come under fire from anti-gun activists, the media, and Trayvon Martin’s family and supporters.

In response, Republican politicians (and George Zimmerman’s attorney) have defended the law by stating that the Trayvon Martin case is not a Stand Your Ground case.

Well, I agree, this is Not a Stand Your Ground case… Sort of.

In order to understand why this is not a Stand Your Ground case, you need to understand the state of Self Defense law in Florida prior to the passage of the Stand Your Ground Act and the State of Florida Self Defense law now.

Self Defense in Florida Then

Prior to the passing of the Stand Your Ground Law, a person could only use deadly force if it was reasonably necessary to prevent death or great bodily harm to him or herself.

The instructions for making this determination is found in Florida’s jury instruction on deadly force, which states:

In deciding whether a defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real, that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.

Additionally, the ability to use deadly force was further tempered by two long standing legal principles:

  1. Retreat to the Wall: “Before taking a life, a combatant must ‘retreat to the wall’ using all means in his power to avoid” the need to use deadly force unless retreating would be futile Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997).
  2. Castle Doctrine: If a person is attacked in his own home or premises (i.e. his Castle), he has no duty to retreat and had the lawful right to stand his ground and meet force with force, even deadly force, if it was necessary to prevent death or great bodily harm. State v. Bobbitt, 415 So. 2d 724 (Fla. 1982).

As a result, under the old self-defense law, even if a person reasonably believed they needed to use deadly force, if it could not be shown they either (1) used all means necessary to retreat or (2) were in their home or premises; they could be found guilty of the charged homicide (whether it be murder or manslaughter).

The Provocation Exception

One final exception to the use of deadly force is found in Florida Statute 776.041, which states that a person can not justify the use of deadly force if they initially provoked the altercation.

But for every exception, there is yet another exception. So under 776.041, even if a person provokes a fight against themselves, they can still use deadly force if the person they provoked responds with disproportionate force. Meaning a person starts a fist fight and the other person pulls out a knife.

This statute remains unchanged under Florida’s current Stand Your Ground law and, as explained below, will likely play a major role in the outcome of George Zimmerman’s case.

Arrest First, Ask Questions Later

Importantly, under the old law, self-defense was not something that law enforcement were expected to give much thought to if someone was killed. In such cases the old adage applied: arrest first, ask questions later.

If there was even the slightest doubt as to the defendant’s story, a law enforcement officer could arrest someone without any fear of civil repercussion in the form of a false arrest suit. (Not that have I ever heard of a law enforcement officer being sued for arresting someone who killed another person.)

Let the Jury Figure it Out

And while prosecutors are not supposed to charge people with crimes that they do not believe can be proven beyond a reasonable doubt, the reality is that prosecutors routinely bend to public pressure and charged people with manslaughter even though the facts supported self-defense.

This is because, no matter how compelling the self-defense claim, the determination of whether a person was defending themselves was always a question for the jury to decide. A judge could not dismiss a case, no matter how much he believed the defendant.

Thus charging someone with manslaughter (and sometimes murder) was a politically expedient way for a prosecutor to pass the buck and look tough on crime. As another old legal saying goes, let the jury figure it out.

Unfortunately, this devastated defendant’s families emotionally and financially, resulted in numerous pleas of convenience to avoid the possibility of being found guilty and sentenced to prison, and made many people believe that criminals had more rights than the average law abiding citizen.

Self Defense in Florida Now

In response to what many perceived as a situation that benefited criminals over law abiding citizens, the Florida Legislature passed the Stand Your Ground Act in 2005.

This act amended Florida Statute 776.012 and created two new statutes, Florida Statute 776.013 and Florida Statute 776.032.

Florida Statute 776.012

This amendment removed the requirement that a person first attempt to “retreat to the wall” if they reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm.

Florida Statute 776.013

This statutory enactment codified the Castle Doctrine and created a presumption that a person’s use of deadly force within their home was reasonable.

This is important because under the old law, even though a person was not required to retreat to the wall if they were in their home, they were still required to prove that their use of deadly force was reasonable.

Under the new law, a person is presumed to have reasonably used deadly force (if done in their home) and it would fall to the prosecutor to develop evidence that overcame this presumption. This is known as a statutorily created rebuttable presumption and is very common, only it is usually a defendant who is required to overcome the statutorily created presumption (think DUI over .08 or possession of recently stolen property).

The statute also further eroded the requirement to retreat by stating that a person could use deadly force any place they were lawfully allowed to be so long as they reasonably believed it was necessary to prevent death or great bodily harm.

This section is important in the Zimmerman case, because even though the statute removed the requirement for George Zimmerman to first attempt to retreat before using deadly force, it neither created a presumption of reasonableness, nor did it remove the requirement that he prove the use of deadly force was reasonable under the circumstances.

Florida Statute 776.032

This statutory enactment created what is known as “criminal prosecution immunity.” And stated that a person who lawfully defended themselves is “immune” from prosecution from arrest, detention, or prosecution.

As the procedure for making the determination of whether a person was “immune” from criminal prosecution was not defined by the legislature, the Florida Supreme Court cleared up the issue in Dennis v. State, 51 So. 3d 456 (Fla. 2010) and ruled:

A defendant may raise the question of statutory immunity [from criminal prosecution prior to trial] and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

The result of this statute and the Florida Supreme Court’s ruling is that a defendant can now raise self defense at two stages in the criminal prosecution.

First, a defendant can file a motion to dismiss asking the court to find that they are entitled to dismissal by using the procedure outlined in by the Florida Supreme Court. If the court denies the motion, the defendant is still allowed to raise the issue with the jury.

In my opinion, this added a much needed and reasonable layer of protection against prosecutorial over reaching.

Finally, the statute goes on to state that a law enforcement agency cannot arrest a person unless it determines that there is probable cause that the force used was unlawful.

It is this section that is probably the most vexing issue in Trayvon Martin’s death and likely the one that most needs to be addressed by the Florida legislature.

Is This a Stand Your Ground Case

To determine if this is a Stand Your Ground case, we must work backwards and analyze the applicable statutes.

Did George Zimmerman Provoke the Fight?

As I explained previously, Florida Statute 776.041, states that a person cannot raise self defense if they provoked the fight.

And that begs the question, what would be considered provoking the fight? Most people (including myself) focus on the facts that George Zimmerman:

  1. Disobeyed the 911 Dispatcher, left his car, and followed Trayvon Martin; and
  2. Brought his firearm with him, although lawfully concealed.

But neither of these acts are unlawful, nor would they be considered legally provocative acts.

So unless George Zimmerman told police that he went up either waiving his gun around or went up and started a fight with Trayvon Martin, his acts of getting out of his car with his firearm concealed and following Trayvon would not make him the aggressor. Thus 776.041 would not apply.

Was George Zimmerman Allowed to Stand his Ground?

If George Zimmerman was not legally the aggressor, we would then turn to Florida Statute 776.013(3).

And because George Zimmerman was not breaking the law when he followed Trayvon Martin and was lawfully present in the gated community (since he lived there) he was not required to attempt to retreat if Trayvon Martin either confronted him or physically attacked him.

Thus George Zimmerman was entitled to Stand his Ground.

BUT, even under the old law, George Zimmerman would have been entitled to stand his ground and use non-deadly force (i.e. fisticuffs) without first attempting to retreat. See Morris v. State, 715 So. 2d 1177 (Fla. 4th DCA 1998) (There is no duty to avoid danger before using non-deadly force.)

As a result, under both Florida’s old and current self defense law, George Zimmerman could stand his ground and defend himself with his fists IF Trayvon Martin attacked him first.

But Was Deadly Force Reasonable

Which leads us to the most vexing question in this entire case: what were the exact circumstances that led to George Zimmerman using deadly force.

Because even under Florida’s current Stand Your Ground law, George Zimmerman’s use of deadly force is not entitled to a presumption of reasonableness.

The reason we cannot answer this question is we do not know what happened in the moments before Trayvon Martin and George Zimmerman physically engaged one another.

If George Zimmerman went up and grabbed Trayvon or went up waiving his gun around, but Trayvon instead defended himself, which resulted in George Zimmerman shooting him – then his use of Deadly Force was unreasonable.

But we do know that George Zimmerman has a (self reported) broken nose, a cut on the back of his head, and grass stains on his back.

These facts beg the questions:

  1. Did Trayvon Martin attack George Zimmerman first, pin him to the ground defenseless, and beat him?; or
  2. Did George Zimmerman verbally ask Trayvon Martin to identify himself, but instead Trayvon Martin jumped George Zimmerman, pinned him to the ground in a defenseless manner, and beat him?

If either of these scenarios are supported by the physical evidence and George Zimmerman’s explanation; then George Zimmerman’s use of his gun was likely reasonable – and therefore lawful.

Moreover, even under Florida’s old law, George Zimmerman would have been allowed to stand his ground and INITIALLY use non-deadly force.

An under both the old law and the new law, if the situation escalated such that George Zimmerman reasonably had to resort to his weapon to stop Trayvon Martin from beating him badly; then the use of his firearm to stop Trayvon Martin would be lawful.

The Only Difference

The only difference is that even if law enforcement believed George Zimmerman, under the old law they would have arrested him first and asked questions later.

But under the new law, Florida Statute 776.032, law enforcement cannot arrest George Zimmerman unless they determine that the deadly force he used was unlawful under the facts of the case.

And we know that the Sanford Police Department declined to arrest George Zimmerman; therefore they have concluded that his use of deadly force was lawful.

So if any change needs to be made to Florida’s Stand Your Ground Law, maybe it’s that we need to return to Arrest First, Ask Questions Later when it comes to deadly force in self defense situations.

What do you think?