As we enjoy today’s pause in the courtroom action of the Zimmerman trial it might be a nice time to do a quick overview of how the law of self defense will be fought over at trial.
Florida Self-Defense Statutes Most Relevant to the Zimmerman Trial
Florida has a number of specific statutes relevant to self defense (not all states do, relying instead on case law), the most central of which for this trial will be: 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm.
It seems likely that given the facts of the case the prosecution will also try to apply Florida’s aggressor statute: 776.041. Use of force by aggressor.
Finally, I expect we’ll also see the defense raise Florida’s immunity statute at trial: 776.032. Immunity from criminal prosecution and civil action for justifiable use of force.
The Criminal Charge Against Zimmerman
The above listed self-defense related statutes will find application in establishing Zimmerman’s affirmative defense of self-defense. We do not even get to that point, however, unless the State has managed to prove each and every element, beyond a reasonable doubt, of the crime with which Zimmerman has been charged.
The formal charge against Zimmerman is murder in the second degree: 782.04. Murder.
In Florida (as in most states) manslaughter is a lesser included offense of murder, and so the jury will also be read the manslaughter charge as a matter of course. 782.02. Manslaughter.
Details matter when dealing with statutes, and we’ll be delving into those details in the coming days and (perhaps) weeks of the trial. Before getting enmeshed in minutiae, however, I thought it might be productive to establish a general framework of the law of self defense generally, a of 30,000-foot point of view to put everybody on the same piece of landscape in preparation for the start of the trial. These five principles apply generally the the laws of self defense everywhere in the United States (although their specific application does, of course, vary in different jurisdictions.)
The Five Principles of the Law of Self-Defense
American society recognizes that there are certain circumstances in which the use of force, even deadly force, against another person may be necessary and justified. When this is so, the use of that force is deemed not a crime, and even if the state can prove beyond a reasonable doubt each and every element of, say, murder, the fact that the act was done in lawful self-defense requires an acquittal.
This is, really, a remarkable degree of autonomous power held by the individual citizen. A person who reasonably believes that they are being threatened with imminent and otherwise unavoidable death or grave bodily harm may in that instant take the life of their attacker, with absolutely no requirement for prior permission from any governmental authority. In contrast, think about how long it usually takes the government to execute someone who has been proven guilty of a capital crime with all due process of law.
Where the government does enter the picture in a self-defense scenario, of course, is after the fact. Examining events in hindsight they seek to determine whether the use of force did, in fact, adhere to all five legal principles of self-defense. If they can prove, beyond a reasonable doubt, that any single one of those principles has been violated, the defendant’s right to claim self defense disappears.
That said, let’s briefly discuss each of the five principles of the law of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
For the State to win on the issue of self-defense in the Zimmerman case it must prove, busing the facts in evidence and beyond a reasonable doubt. one or more of these fundamental principles to be false.
Innocence—Aggressors Need Not Apply
The principle of Innocence refers to the notion that a person who initiates a conflict should not later be permitted to justify his use of force as self defense. It is this principle that is captured in Florida statute 776.041. It is, however, possible for the initial aggressor of a conflict to regain his “innocence” under certain circumstances., and thereby regain his right to justifiably use force in self defense
What I expect we will see at trial with regard to the principle of Innocence is the State arguing that Zimmerman engaged in conduct of a nature sufficient to qualify as “aggression”. The defense will respond that nothing Zimmerman did could reasonably qualify as an act of “aggression,” and at the same time that even if he did engage in such conduct he nevertheless “regained his innocence” afterwards.
The principle of Imminence refers to the notion that you can defend yourself with force only against a threatened danger that is about to happen RIGHT NOW. You can’t use force to prevent a danger that may arise at some later time—the law expects you to seek an alternative resolution in the mean time, such as calling the police–nor may you use force in response to a danger that has already occurred or passed—doing so would be retaliation, not self defense.
The principle of Imminence may come into play around the arguments that Zimmerman was the initial aggressor, in that his observation/following of Martin would create in a reasonable person’s mind (in this case, Martin) a fear of imminent harm. The defense will, naturally, argue the contrary.
Proportionality—The “Goldilocks” Principle (Just Right)
The principle of Proportionality refers to the notion that the degree of force you may use in self-defense must be proportional to the degree of force with which you are threatened. Briefly, a non-deadly threat may only be countered with a non-deadly defense. A threat capable of causing death or grave bodily harm (e.g., a broken bone, blinding, a rape) may be met with deadly force.
Usually, the use of deadly force against an unarmed attacker is fatal to a claim of self defense. If you nevertheless wants to argue self defense you will have to convince the court that the unique circumstances warranted your use of deadly force despite the fact that the attacker was unarmed.
In many states, the fact that the attack occurred in the defendant’s home often raises a legal presumption of a threat of death or grave bodily harm (e.g., the so-called “make-my-day” laws). That, of course, is not relevant in the Zimmerman case. In all states, however, if the unarmed attack is of such ferocity that it nevertheless raises a reasonable fear of death or grave bodily harm, the use of deadly force in self defense would be justified.
Much has been made in the public narrative about the fact that Zimmerman shot and killed an unarmed Martin. For Zimmerman to be successful in arguing self defense as a legal justification for the shooting he will need to present the court with a compelling narrative of his own recounting his reasonable fear of death or grave bodily harm. The success of Zimmerman’s narrative will surely be a function of the unremitting nature of Martin’s attack—straddling the prone Zimmerman and punching him “MMA-style” even after Zimmerman was clearly no longer any apparent threat and was, by eye-witness account, screaming for help—and the extensiveness of Zimmerman’s injuries as evidenced by medical reports and contemporaneous photos.
Avoidance—A Duty to Retreat as Long as Safely Possible
The principle of Avoidance refers to the notion that you should not use force in self-defense if you can avoid the need to do so by making use of a safe avenue of retreat.
Florida is, of course, a “stand your ground” state (776.013(3)), where a person acting in justifiable self defense has no general duty to retreat before doing so. This does not, however, take the principle of Avoidance out of this trial.
As previously mentioned, it is is possible that the State will argue that Zimmerman was the initial aggressor. As the aggressor he would not be eligible to argue self-defense unless he first “recovered his innocence.” A condition to “recovering innocence” is that you have “exhausted every reasonable means to escape” or that you “withdraw from physical contact with the assailant.” (An alternative means of “recovering” innocence comes into play when the aggressor’s non-deadly attack is countered by a deadly-force attack.)
In this way the principle of Avoidance and a legal duty to retreat can arise even in a Stand Your Ground state, like Florida, which has no general duty to retreat before using force in self-defense.
Reasonableness—Meet the “Reasonable and Prudent Man”
The principle of Reasonableness is really an umbrella principle that applies to each of the previous four. The issue here is whether your perceptions and conduct in self-defense were those of a reasonable and prudent person under the same or similar circumstances. If they were not, any claim to self-defense fails.
So, if you believed the other person was an aggressor, but a reasonable person would not have believed this, you did not act in lawful self-defense. Similarly if you believed that the threat was imminent but a reasonable person would not have, or that the force you used was proportional to the threat but a reasonable person would not have, or that you could not have avoided the threat but a reasonable person would have . . . in each case the claim to self defense fails.
It is within the contours of the principle of Reasonableness that the attacker’s prior acts and/or reputation might be made relevant at trial, even if they were unknown to you at the time. The reasonableness of your perception that the attacker’s behavior was threatening would be buttressed if your attacker had a reputation in the community for behaving in threatening manner. Similarly, the reasonableness of your perception that the attacker was acting in an irrational and frightening manner would be buttressed if your attacker habitually used intoxicants, and was in fact intoxicated at the time of the attack.
So, those are the five principles of the law of self-defense in a nutshell. Obviously, a ton of detail has been left out, so take it for what it is, a concise overview. Hopefully, this can serve as a useful conceptual framework and context into which we can place the specifics of Florida law and the particular facts of this case in the days to come.
If you’d like to learn how the Five Principles of the Law of Self Defense apply in your specific state, take a look at “The Law of Self Defense, 2nd Edition,” now available at www.lawofselfdefense.com, from Amazon.com, and soon available in Kindle version.
Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense,” now available in its just released 2nd Edition, which shows you how to successfully fight the 20-to-life legal battle everyone faces after defending themselves. UPDATE: July 5, 2013 is the LAST DAY to take advantage of the 30% pre-order discount, only $35, plus free shipping. To do so simply visit the Law of Self Defense blog.
BREAKING: “The Law of Self Defense, 2nd Edition” is now also being carried by Amazon.com, at list price but with a commitment for 2-day delivery. A Kindle version to come within a week or so (I hope).
Many thanks to Professor Jacobson for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!