Written by Frederick Leatherman (Masoninblue) and reblogged here with permission. The article is also on Firedoglake.com/MyFDL, where editors assisted to provide the justice scales image/graphic, from Wikipedia commons.
Florida self-defense law is a bit unusual, so I am going to explain how it works.
First, as I have stated in several posts here, here, and in comments to other posts, a person had a duty to retreat under the common law before he or she would be justified in using deadly force in self-defense. The SCOTUS abolished common law crimes in the mid sixties because they were a mish-mash of confusing and in some instances unintelligible definitions.
All crimes and their defenses are now defined by statute, or municipal ordinance and many of them are based on the Model Penal Code, which was put together by a panel of lawyers, judges and law professors. Most state legislatures adopted the Model Penal Code entirely, with some exceptions in areas where, for one reason or another, they wanted to retain a former law or procedure.
Second, most of the western states rejected the duty to retreat and you will find no mention of it in their self-defense or justifiable homicide statutes. Stand your ground, or SYG statutes merely abolish the duty to retreat. So, jurisdictions that have adopted SYG have merely joined the western states that long ago eliminated the duty to retreat.
Third, SYG is not a license to kill. Although a person may stand their ground without first retreating or attempting to retreat, they cannot use more force than is reasonably necessary to defend themselves. In other words, they may use such force as is reasonably necessary to prevent being assaulted.
The word “reasonable” means the test is objective, not subjective. That is, it’s based on the objective set of facts and circumstances, as opposed to a person’s perception of the facts and circumstances. In other words, a person may use such force as a reasonable person in the same situation would perceive as reasonably necessary to use in preventing an assault.
If they use excessive force, they become an aggressor and no longer are acting in self-defense. At this point, the original aggressor becomes the defender and now can use reasonably necessary force to defend against the use of excessive force.
Therefore, by definition, an aggressor cannot act in self-defense.
The use of deadly force is limited to those situations where, based on the objective set of facts and circumstances, a reasonable person would believe it was reasonably necessary to use deadly force to prevent being killed or suffering “great bodily harm.”
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
Fourth, there are no clear lines of demarcation during a battle between two people that separate the use of reasonably necessary force from the use of excessive force. At some point the line is crossed, for example, if A slaps B in the face and is about to slap B again, B cannot strike A with a baseball bat over the head to prevent another slap. Judges and juries do not like aggressors and when their victims get the upper hand and resort to excessive force, they are inclined to believe that the aggressor deserves it. In practice, therefore, an aggressor takes his victim as he finds him and if he loses the fight, no one is going to be sympathetic, and the person who whupped him will not be charged, unless his response was so extremely over the top that he basically used the initial assault as an excuse to kill or severely injure the person.
Fifth, is the concept of burden of proof and this is where Florida practice may differ from the law of self-defense in your state.
Under Florida law, a defendant can file a pretrial motion in a murder case under the SYG law asking the judge to dismiss the murder charge asserting that he stood his ground and his use of deadly force in self-defense was reasonably necessary to prevent being killed or suffering serious bodily injury. The court must then hold an evidentiary hearing.
This is how it will happen in the Zimmerman case: [cont'd]
Zimmerman must prove each of the following elements by a preponderance of the evidence (i.e., more probable than not) at that hearing:
1. He was not engaged in an unlawful activity (i.e., not committing a crime);
2. Trayvon Martin attacked him in a place where he had a right to be; and
3. He reasonably believed that his life was in danger or that he would suffer great bodily injury, if he did not use deadly force to defend himself. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
If the judge finds that he proved each of these elements by a preponderance of the evidence, then the judge must dismiss the murder charge and Zimmerman cannot be further prosecuted for the killing (i.e., for some lesser charge).
On the other hand, if the judge finds that he failed to prove each element by a preponderance of the evidence, then the judge must deny the motion to dismiss and the case will proceed in the usual manner.
The State can appeal a dismissal of the murder charge.
If the case proceeds to a judge or jury trial, then the burden of proof shifts to the prosecution, which must prove beyond a reasonable doubt that Zimmerman committed second degree murder (i.e., that he knew his actions were reasonably certain to kill and that he caused Martin’s death by committing an “imminently dangerous” act that showed a “depraved” lack of regard for human life). Due to an allegation in the information that he committed the crime with a firearm, the charge carries a minimum mandatory sentence of 25 years in prison and a maximum of life, if he is convicted.
The defendant also gets a second shot at his self-defense claim, except now the prosecution must prove that he did not kill Trayvon Martin in self-defense, either because Zimmerman was the aggressor or he used excessive force (i.e., he was acting unlawfully).
The prosecution’s affidavit of probable cause filed in support of the information charging Zimmerman with second degree murder asserts that he decided Martin was a criminal and he pursued and confronted him contrary to the police dispatcher’s specific admonition not to do so (i.e., he was the aggressor and acting unlawfully).
In other words, the prosecution will be attempting to prove that Zimmerman had no right to stand his ground because he was the aggressor. Zimmerman assaulted Martin and, under the prosecution’s theory of the case, Martin had the right to stand his ground and use reasonable force to defend himself.
I think the critical question that will decide the outcome of this case will be whether Zimmerman’s statements stand-up to scrutiny. If the prosecution can materially discredit his statements, the judge will deny his pretrial motion to dismiss under the SYG statute and the jury will find him guilty of second degree murder.
For those of you who believe the prosecution has no case because the person screaming for help in the background of the 911 call was George Zimmerman, even though he had a gun and two audiologists using different methodologies have independently excluded him as the person screaming for help to a reasonable scientific certainty, please consider the effect of the following testimony on the judge and the jury.
PROSECUTOR: Can you identify the voice screaming for help in the backgound — the scream that abruptly ends with a gunshot?
SYBRINA FULTON: Yes, I can.
PROSECUTOR: Are you certain?
SYBRINA FULTON: Yes, I am.
PROSECUTOR: Please tell the ladies and gentlemen of the jury who is screaming for help.
SYBRINA FULTON: That is my son, Trayvon, and those are the last words that I will ever him speak.
PROSECUTOR: Thank you. I have no further questions.
Cross posted from my law blog.