copyright 2012 by jon gutmacher
This is an update on two earlier posts I've made -- that further explains the law involved in the Trayvon Martin/George Zimmerman situation. It is a more involved explanation of the laws that might apply.
The “Stand Your Ground” law – is basically the same law used in Florida for over a century with some added features. To understand why it is very much needed . . . what changes might not be a bad thing . . . and some other important issues . . . let’s try an actual “intelligent” discussion – without the media hype, the racial tensions, and the misinformation from lots of “talking heads” who really have no idea what they’re talking about.
The law prior to the “Stand Your Ground” law basically stated that before you could use deadly force – you had to have a reasonable fear of imminent death or great bodily harm from a person acting illegally – or a reasonable belief that a forcible felony (the real serious stuff) was taking place or was imminent (in the sense of immediate and unavoidable). On top of this – your use of deadly force needed to be reasonable. And – (here comes the retreat rule) – you had to retreat if by retreating – you could avoid the need to use deadly force – and you could retreat with safety.
Of course – the retreat rule didn’t apply within your own dwelling. That was called the “castle doctrine” – and is basically the same thing as “Stand Your Ground” – but only within one's home or residence.
How did the 2005 revisions to Florida’s laws change that?
Well . . . we did away with the “retreat rule” almost completely. Now – if you are not committing a crime, and are not in a place you are forbidden to be in – you do not have to retreat if you are faced with a situation where you are being attacked, or if you are attempting to stop the commission of a forcible felony.
What else did the law change?
Well . . . you are now presumed to have a reasonable fear of imminent death or great bodily harm ONLY if someone is using or has used force to break into your residence, or a vehicle occupied by persons, or is attempting to abduct a person from a residence against that person’s will. (Situations that have nothing to do with the death of Trayvon Martin, and will have no application to it.)
Not real controversial stuff – except maybe the occupied vehicle scenario as applied to an automobile.
Of course – there’s also the “immunity” granted by the statute. This is the concept almost totally misunderstood by almost everyone who’s spoken about it on the news, so far. What the immunity concept is – under Florida law – is that where the facts of self defense appear evident – the police may not arrest a subject, nor may that person be prosecuted – until the government has sufficient facts that would tend to show that the use of self defense was not lawful.
Why the hell would you arrest or prosecute someone who appears to be innocent of any crime? (especially as an arrest starts Florida's "speedy trial" rule to run)
How does this work in court?
Well . . . assuming an arrest is made – the defendant has an opportunity to require an evidentiary hearing be held at which time he or she has the burden to prove (by a “preponderance” of the evidence) that they acted in lawful self defense. That's new under the revised statute. (Before -- you just went to jury trial.) However, if the defendant can't show that at the motion -- then the case proceeds on to a jury trial, at a later point. In such a jury trial – the rules are the same as they’ve been for a hundred years – other than – there is no longer a duty to “retreat” in order to avoid the use of deadly force.
Likewise – if you are convicted – say goodbye to your family, friends, possessions, and any hope of a productive life. Besides the criminal record that will prevent any decent job once released – Florida has “mandatory minimum” prison sentences for this type of crime where any firearm (including an antique firearm) is unlawfully used or possessed. Three years for just pointing a gun. Ten for use of a firearm in any other serious felony. Twenty if you discharged it. Twenty-five to life if, as a result of its use, another person suffers death or great bodily harm.
So . . . “why” . . . you ask – was doing away with the retreat rule a good idea?
Well . . . think of the various scenarios. Someone else is attacking you – they have a firearm, or you have a reasonable belief they have one. Quite frankly, anyone who knows anything will tell you there’s no safe way of retreating in that situation. Someone is breaking into your home, boat, whatever – and knows you’re inside. Same situation – in most such cases – they are armed – and ready to do whatever they need to do to you or your family to accomplish their illegal goals. If killing you is involved in that – no problem. What about someone with another type deadly weapon? What about someone who wants to kidnap your infant, rape your wife, rob you, etc. Do you really want an anti-gun jury who have no idea of how it “really was” to decide whether you could have retreated safely, or not? Do you really want them to hash out if you should have retreated rather than stop the armed robbery, or beating of some homeless guy on the side of the road?
Quite frankly – I’ve tried these cases. This stuff really happens! And, if you’re in an area where the responding cops or prosecution are “anti-gun” – you would have gotten prosecuted for this type thing – would have had to spend tens of thousands of dollars for a lawyer, more on defense of the case, and would have had to either take a plea to something less than a long jail sentence – or faced a jury trial – and prayed that some of the people on the jury understood something about guns and self defense. Because – quite frankly – with a jury – you never really know what the hell the result will be, no matter what the evidence is. It’s unfortunate – and yeah – they usually come up with the right result – but not always! And quite frankly -- by the time it is all done -- you'll have exhausted your funds, probably lost your job, spent some time in jail, stressed yourself out beyond belief, lost a lot of your "friends" -- and be really lucky if your family stands by you.
So . . . how does the law apply to Trayvon Martin and George Zimmerman?
Damn if I know! Still not enough facts out there!
But, here’s a little insight:
While George Zimmerman could lawfully follow Trayvon Martin -- even if the police dispatcher told him not to – he had no legal right to stop him, question him, or put his hands on him. While he could lawfully “ask” Trayvon to voluntarily stop and talk to him – Trayvon had every right to refuse, and keep walking. Maybe Trayvon thought Zimmerman was a criminal about to rob him? Did Zimmerman have his firearm out as he followed? Not real smart as this was not his own property – but “common” property of the apartment/condo complex where anyone has a right to be as long as they have some type lawful purpose.
If George Zimmerman laid hands on Trayvon Martin to stop him – even if it was just a slight grab. Such is a “battery” under the law – and now George Zimmerman has just become the illegal “aggressor”, and in most instances cannot use self defense unless he fully attempts to RETREAT, and makes clear his intention to disengage, and not be involved anymore. Yes – for some purposes – a “modified” “retreat rule” still exists in Florida under Florida Statute 776.041. That section of the law says a person acting illegally (an “aggressor”) must, before using self defense, either clearly surrender, or in good faith withdraw from physical contact with the other, and clearly indicate to the other person that he desires to withdraw and terminate any use of force.
Again – is this the situation? Damn if I know!!!
But, whatever the situation – hopefully you can see that the changes in Florida law were for the best. FBI criminal homicide statistics show a steady decline in illegal homicides and violent crime in the United States. And while “justifiable homicides” have increased in numbers very slightly every year (238 in 2006; 265 in 2008; 278 in 2010 – and these are total national figures – yeah, the entire nation!). In fact, if you look at total population of the United States – they’ve actually decreased in proportion to population growth! So – they match the national trend! Seems like those concealed weapons permits actually work, doesn’t it? (Florida reports that of the 906,924 active concealed weapon permits only .25% (that’s .0025) had to be revoked or suspended because of a disqualifying arrest – without regard to whether the arrest involved a firearm or weapon – or what the ultimate disposition of the charge was).
So – what really might need fixing if we push it?
Well . . . if a mandatory twenty years doesn’t discourage the illegal discharge of a firearm – I’m not sure what will. The only thing I’ve been saying for years is: as long as a firearm is not discharged – the real problem is not having a “self defense” exception to aggravated assault charges. This is the most common charge when there is a question in a self defense case where a firearm is not discharged, or used to strike someone. [Using a firearm to strike someone is an “aggravated battery” due to the use of a “deadly weapon”, and carries a mandatory ten year prison sentence – and by the way – “mandatory” means you serve every single day of the sentence. No early parole. No “gain time”. No nuttin’ – just serve each and every day of it!] My experience – time and time again – is that the “bad guy” is often the one who cries “foul”, and blames the honest gun owner for displaying a firearm – in order to cover his or her own illegal actions. It’s easier to lie – than tell the truth and go to jail – and I see this all too often in disputes between neighbors – and road rage situations. So . . . in my opinion . . . the changes needed aren’t with the “Stand Your Ground” laws, immunity, or retreat – it’s with the draconian mandatory sentence that can be imposed for aggravated assault. [By the way – a judge does not have the discretion to impose a lesser sentence where a mandatory is called for – it’s “mandatory” in every way!]
If George Zimmerman overreacted – he’ll pay the price. That’s a lesson that everyone should take to heart! Having a firearm is a very serious responsibility. It should be used only as a last clear method of survival – or in the most grievous of situations. Anything else is just too damn risky! That’s why I wrote my book – to keep you out of trouble.
Hope this article shed some more light.