In 2005 the Florida legislator enacted statute 776.032. “Immunity from criminal prosecution and civil action for justifiable use of force.” This immunity statute is often erroneously referred to as Florida’s Stand-Your-Ground (SYG) law, even by lawyers, judges, and law professors who ought to know better (MSM journalists I forgive for such errors, as their profession fairly demands ignorance). In fact, SYG is a different statute entirely, 776.013(3).
(Slide used by prosecution in Zimmerman trial during closing argument)
Although many states have adopted some form of self-defense immunity law, Florida’s is remarkably broad in many respects. It provides not only immunity from both civil liability and criminal prosecution, but even from arrest in instances that lack probable cause to believe that the use of force was unlawful. In addition, to discourage aggressive plaintiffs who might be willing to “test” the immunity in a civil case, the law provides that the court shall–not may–award the defendant his attorney’s fees, court costs, and even compensation for loss of income, if the defendant’s immunity is affirmed at trial.
What the statute failed to address, however, was how it was actually to be applied, and by what standards. This task was necessarily to be undertaken by the various courts as self-defense immunity claims were presented to them.
Of course, give two courts the chance to interpret any statute and you’re likely to end up with twenty different conclusions. In Florida that’s exactly the mess that had developed by the time the state supreme court stepped in to clear things up in 2010. It did so by considering two appellate court decisions that had taken opposing approaches to interpreting and applying the self-defense immunity law.
Dennis v. State (4th DCA): No Immunity If There Exists Any Dispute of Fact
The more recent of these appellate court decisions was Dennis v. State, 17 So.3d 305 (2009), a product of the 4th District Court of Appeals.
Dennis had been charged with attempted first-degree murder of his girlfriend, and he tried to use the self-defense immunity law to have the charges dismissed. Dennis made two pre-trial arguments for why the immunity law should result in the dismissal of the charges against him. First, that there were no material facts in dispute, and the facts that existed failed to establish a prima facie case of guilt–the standard under Florida’s criminal procedure rule 3.190(c)4). Second, that the preponderance of the evidence before the court supported his claim of justifiable self-defense, thus triggering the immunity law–the standard under Florida’s criminal procedure rule of 3.190(c)(3).
The trial court rejected the first argument on the reasonable enough basis that the State prosecutors were, in fact, asserting with specificity the existence of disputed material facts. On the second argument the trial court decided that if an evidentiary hearing was required–and it would be, to establish a preponderance of the evidence–then the matter was properly left to the finders of fact, the jury, so again the claim for immunity was rejected.
Dennis was ultimate convicted on the lesser included charge of felony battery, and sentenced to 5 years. He appealed his conviction to the 4th District Court of Appeals, and raised as an issue the trial court’s rejection of his immunity claims.
The 4th Circuit appellate court handled the issue in an admirably brief single-paragraph decision. In essence, the court decided that a motion for immunity should be dismissed if there exists any disputed of material fact (the 3.190(c)(4) standard applied by the trial court). This decision, however, was immediately acknowledged even by the appellate court itself as conflicting with an appellate court decision from the 1st District Court of Appeals the prior year.
Peterson v. State (1st DCA): Evidentiary Hearing Resolves Fact Disputes; POE Threshold for Immunity
That earlier decision out of the 1st District Court of Appeals, Peterson v. State, 983 So.2d 27 (FL Ct. App. 2008), involved a defendant who had been charged with attempted first degree murder. Peterson sought a pretrial dismissal of the charges based on the state’s self-defense immunity law. The trial court, unlike in Dennis, held an evidentiary hearing on the motion, but ultimately decided that the defendant had not established immunity “as a matter of law.” The trial court also lamented the absence of any established procedure for trial courts to apply the self-defense immunity statue.
Peterson immediately appealed the trial court’s rejection of his immunity claim to the 1st circuit court of appeals. The appellate court rejected the State prosecutor’s argument (later to be successful in Dennis) that immunity must be rejected whenever there is a dispute of material fact. Noting that the Legislature had “intended to establish a true immunity, and not merely an[other] affirmative defense [to be used at trial]” they outlined a procedure for applying the self-defense immunity statute:
We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist. Here, the trial court did what was required. Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.
Looking for guidance to Colorado which had adopted a similar immunity provision two decades earlier, the appellate court decided that the Peterson approach was correct in considering the self-defense immunity statute as intending true immunity–and therefore appropriate for pre-trial resolution–and not merely an affirmative defense–and therefore to be left to the jury for decision. Further, the appellate court stated that “we reject any suggestion that the procedure. . . should require denial of a motion [for dismissal of charges based on immunity] whenever a material issue of fact appears.”
As for Peterson himself, however, the appellate court decided that he had, in fact, failed to meet the threshold for immunity under this newly defined procedure and standards.
Dennis v. State (FL Supreme Court): Adopts Peterson Approach, Rejects Dennis
With these two lower appellate courts taking opposing positions on the proper application of Florida’s self-defense immunity law, the matter was ripe for resolution by the state’s supreme court. They did so by the means of accepting the appeal of Dennis from his unfavorable appellate court ruling, in Dennis v. State, 51 So.3d 456 (FL Supreme Court 2010).
Dennis argued that the supreme court should adopt the approach of Peterson, allowing immunity to be resolved pre-trial with an evidentiary hearing, and by the standard of evidence of a preponderance of the evidence, even where there existed some dispute of material fact. The State, in turn, argued that the supreme court should adopt the approach of the lower Dennis decision, that the motion for immunity should be denied if there is any dispute of material fact, and that if there exists even mere probable cause to believe the use of force was unlawful the matter could not be resolved pre-trial but must proceed to trial.
The supreme court in Dennis conducted a detailed and exhaustive analysis too lengthy to repeat in detail here–but the decision can be obtained full-length here: –and comes to a number of key findings.
First, that the plain reading of the self-defense immunity statute reflects an intent by the Legislature to provide release from liability prior to the onset of a trial. Indeed, they note, the statute provides protection even from mere arrest, under the appropriate circumstances. So, the defendant need not wait until trial to raise the claim. Indeed, he may raise immunity pre-trial, and even if he fails there, may raise immunity again at trial.
Second, the plain reading of the statute also makes clear that the grant of immunity from “criminal prosecution” makes the self-defense immunity law substantively more protective than the traditional affirmative defense of self-defense, and that therefore the State must show more than a mere probable cause that the use of force was unlawful. Instead, the correct standard of evidence is that of a preponderance of the evidence.
The result is that the supreme court’s Dennis decision rejects the approach of the lower appellate court Dennis decision, and adopts the Peterson approach as the standard for the application of self-defense immunity claims in Florida.
The Bottom Line
The bottom line, then, is that in Florida a defendant’s motion for self-defense immunity can be made at any time in a hearing before the relevant court, and the standard of evidence for acknowledging immunity is that of a preponderance of the evidence–if it is more likely than not that the use of defensive force was lawful, immunity attaches.
In the case of George Zimmerman, Mark O’Mara clearly understood this criteria for attaching immunity, and similarly would have been well aware that the facts in evidence overwhelming supported a finding of immunity. His decision to forego the pre-trial immunity (not “Stand-your-Ground”) hearing was strategic, not legal, in nature, and a consequence of the massive disinformation campaign and political wars being waged around the trial.
Unfortunately for the defendant, Dennis, in the supreme court case, they decided that in his particular instance the error was harmless, as even under the correct procedure immunity would have been denied. His conviction for felony battery and his 5 year sentence were left in place.
(Defense attorney Mark O’Mara during Zimmerman trial)
Coming Up . . .
Within the next few days I’ll follow this post with another looking at self-defense immunity provisions across the country, and how they compare and contrast in both procedure and application.
Also, today I had the opportunity to speak with Florida Attorney Eric Roberts, who is currently leading on a case before the 5th District Court of Appeals (the same one that oversaw the Zimmerman trial) in which he is arguing for procedural changes self-defense immunity that will make its application even more favorable to the law-abiding armed citizen. As I learn more about that case over the next few days, I’ll post up about that, as well.
–Andrew
NOTICE: “Law of Self Defense” Seminars are now being scheduled for the fall.
Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense,” now available at www.lawofselfdefense.com and also at Amazon.com as either a hardcopy or in Kindle version.
You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.
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Comments
Andrew, your explanations are much appreciated. You are clear and concise and to the point. Your writing should be widely read, and in that vein, I will promote your book to anyone who is concerned about self defense law.
That’s much appreciated, txantimedia. Incidentally, are you in Texas? Thinking about attending the Gun Rights Policy Conference in Houston in September, ride the bike down from Boston.
–Andrew, @LawSelfDefense, #LOSD2
LOL you might want to check the weather down here before you decide that…….
Why, what’s the weather like in September?
–Andrew, @LawSelfDefense, #LOSD2
miserably hot
I was out and about on the bike today, and it was 100 here in MetroWest Boston. But both the bike and I have seen hotter–Oregon desert in July and Milan in August (right after coming out of the nice, cool Alps, too) were worse. 🙂
–Andrew, @LawSelfDefense, #LOSD2
Trying to kill the 2nd Amendment is nothing new!
And, it’s made worse because BOTH PARTIES are culpable.
We have Dubya doing his “Homeland Security” using 9/11 as an excuse.
You have a republican mayor in NYC with the same “privileged rich guy” agenda.
We are not being given decent candidates to vote for. And, Congress is now a zoo. Neither party, it seems, has the guts to tell the American people the truth. The politicians that get to DC are in it for the PORK.
JFTR, prior to 2001 Bloomberg was a lifelong Democrat. Then for political convenience sake he decided he’d call himself a “Republican”, which lasted for less than 6 years, as he left the party and declared himself “Independent” in mid-2007.
Looking at that pathetic and hilarious slide, I can see how those shithead prosecutors lost.
Zimmerman’s battered head was evidence enough.
Seen on Twitter:
“The 80s called – they want their Powerpoint slides back”.
What idiot wrote that? Powerpoint didn’t even exist in the 80s.
It did if you had a Mac.
IT wasn’t powerpoint back then.
http://www.redbubble.com/people/powerpoint25/works/8688651-powerpoint-1-0-for-macintosh-1987-25th-anniversary-re-issue
You could always do those slides…. on projectors.
Powerpoint just makes it easier to do via a computer!!
Been around that stuff for a very long time.
Man, I can’t WAIT for my copy of LOSD2 to arrive. If the writing there is as clear as this I’m really going to enjoy it as well as get educated.
Haha, the book is better, it actually got some editing, not like my posts. 🙂
–Andrew, @LawSelfDefense, #LOSD2
O/T – The Sharpton-Crump-NBPP-OWS-DOJ hireling racist rioters may have gone a bridge too far, attacking three Marines. (story has the PC media and the real versions of the story)
Tom Maguire has the story of a homeowner – Roderick Scott – who shot and killed a robber – a 17-year-old mamed Chris Cervini. Cervini was high on marijuana and alcohol. The jury acquitted Mr, Scott.
Sounds familiar, but in this case Roderick Scott, unlike GZ, was immediately arrested. The major diversion from the Zimmerman case was that Scott was black and Cervini was white. Maguire searched the NY Times archives for published information regarding the 17 year-old, but there was not a single article in the Fish Wrap.
In the Scott case he went to check on a neighbors car that was being robbed by Cervini and 2 friends. Scott had his gun drawn when he approached, told them to halt and said he had a gun, 2 of the teens ran away and Cervini, according to Roderick Scott charged at him and he shot Cervini twice. The only difference between the 2 cases is Scott didn’t receive any injuries and he shot twice not once. I think with Scott not having any injuries the police made a judgement call on whether to arrest him or not. I didn’t see any of the trial to make an opinion if it was self-defense on not, but there was a trial and they found it was self-defense and that should be the end of it. But it’s not in GZ’s case b/c of race baiter Sharpton, the DOJ hasn’t given up and thats not justice thats a lynching. If their going to investigate GZ will the Feds now double check all cross race violence that occurs in this country.
You’re forgetting that it is impossible for blacks to commit hate crimes against whites due to “white privelage”.
correction: Zimmerman was handcuffed and arrested after the incident. It is an error to claim that Zimmerman was not arrested.
Andrew – excellent info on ‘standards of review’ – now how about covering ADMISSIBILITY of evidence ?
many things were disallowed in the GZ trial – TM’s cell phone contents (provenance / authenticity), his record (prior bad acts ? or relevance ?) or that his Mommy’s lawyers had his school records sealed –
Can his school records be unsealed for discovery etc ? After all, he personally has no ‘privacy interest’ at this time. How about his thousands of texts, pictures, etc, bringing in the recipients to say ‘Did you recognize this to be from TM, based on your experience texting with him’ etc ?
Other indices of his character / predilictions ?
Really? Admissibility of evidence? It’s one of the dryer subjects in law school (and often what makes or breaks a case at trial, so PAY ATTENTION!) 🙂
I’ll give some thought to whether I can write something reasonably short that’s still useful. The challenge is that evidence scenarios come in a million variation, and even a 1,000 page textbook can’t cover them all–new ones crop up all the time.
But maybe just a cover of the basic principles would work.
OK, it’s on my to-do list.
–Andrew, @LawSelfDefense, #LOSD2
Thanks. I suspect there’s a LOT about St Skittles that not only was kept out of court, but out of the media.
I’d like to know it, and know if a jury is likely to get it in evidence.
‘Dry subject’ ? Didn’t Dr Bao have a problem with that aspect ? Plastic bags and all that 🙂
It’s not ‘defendants rights’ in this case, the focus of the evidence in questgion is dead, not defending.
From the outset Fulton and Martin were determined to keep information about their son out of the media.
They used curious words when soliciting for money including their need to “defend their son”. If Trayvon Martin had a clean reputation then they would not need to defend his reputation.
People should have picked up on what they were saying, well there were some who did pick up on their lies. They were exposed more than once over their constant lies.
Forget all that negative Trayvon evidence at trial- Holder just ordered the DOJ to seize or hold it for planned civil suits:
http://www.theblaze.com/stories/2013/07/18/report-doj-puts-hold-on-evidence-in-george-zimmerman-case/
Those phone texts and photos will never see the light of day – or Internet view again!
People in NYC aren’t allowed to use guns in self defense, “as long as an avenue of escape exists.” So, if you lived on the second floor. And, your door bursts open, with a gun weilding thief threatening you that you’ll die if you don’t turn over valuables … you must escape down the fire escape. Or, indeed, jump out your window, before you even think of pulling a hidden gun out from under your couch.
Way back in the 1970’s, when I was living in Manhattan, I remember a story that probably appeared in the NY Times. A woman had hand-knit her husband a beautiful sweater. When their apartment was burglarized, the sweater was taken. And, when the police report of this theft was written, the woman included the hand-knit sweater among the booty that was grabbed.
About a month later the woman was walking down her street. I think around Broadway and 85th Street. She saw a man wearing this sweater. And, she ran over to a policeman to report that fact. The policeman said to her, “Look lady, if I arrest him he’s going to turn around and sue you. He’s going to produce a slip from Goodwill, that he bought the sweater there for $2. You’ll be accused of filing a false police report. And, you will face civil damages.
I never forgot the story.
That’s NY the city that sends a man to jail for shooting himself in the leg.
FTFY.
Which was revealed when he shot himself in the leg. One would think a hole in the leg would be punishment enough for a nonviolent victimless crime.
Meh. I have no truck with cowboys, wannabe-thugs and other assorted morons when it comes to waving illegal unlicensed guns about and don’t even have the gun safety sense an 8-year-old who’s done the Eddie Eagle class would have.
Their idiocy, unfortunately, reflects poorly on the majority of licensed gun owners who are careful, law-abiding citizens.
The prosecution’s slide, above, is offensive, inasamuch as “playing hero” is exactly what occurs when an individual appropriately intervenes to prevent the death or serious bodily harm of another person. There are many “cautious” individuals who will just stand by and not take any risk to help someone else who is in extremis, and while that choice validly is theirs to make, it doesn’t need to be exalted over those who would lend assistance.
Too bad no one “played hero” and answered those curdling screams for help that we heard on the “Lauer” 911 tape. If someone had done so, maybe both Zimmerman and Martin would be alive today. It disgusts me that the prosecution would negatively characterize someone protecting his own neighborhood as “playing hero”. I also get offended whenever I hear anyone suggest that GZ should have stayed in his truck, for any reason. Why is he the only man in America who should have his freedom of movement suspended by anyone for any reason while in his own neighborhood? The nerve to even suggest such a thing!
First time commenting here. First I want to say how much I’ve enjoyed following the trial here. Very interesting stuff. I too placed an order for your book recently.
As far as this article, can someone explain what was strategic in MOM foregoing the immunity hearing? I assume this to mean he knew the evidence would support his position and he wanted the jury to confirm that with the acquittal prior to reaching for immunity. Am I interpreting this correctly?
Keep up the good work!
I think he may have sensed that this particular judge would rule against him, and he thought better to withdraw and fight another day.
I don’t know if Nelson would be the judge to hear an immunity hearing now, but I suspect that, even if she was, she would have no problem ruling for Zimmerman since he was found not guilty. It’s kind of a no brainer. Besides, she knows from experience that MOM will simply appeal an adverse ruling.
I think it’s a matter of who the burden of proof is upon…the defendant or the state? In bringing a hearing prior, the burden was on Zimmerman. By waiting until the criminal trial, the burden was on the state.
O’Mara knew the ruling would be against him, just as the JOA motions were denied when it was blatantly obvious the State had no case, so why bother? What was to be gained?
No, of course, O’Mara has made clear how much he relishes the prospect of obtaining immunity the moment someone files suit on Zimmerman–not usually what a criminal defense attorney rolls out of bed for, filing civil trial motions. 🙂
–Andrew, @LawSelfDefense, #LOSD2
Is the theory now that he has won the criminal case with the higher burden of proof that the civil immunity should be essentially guaranteed? Whereas before the acquittal it may have been rejected like the JOA?
No, standard for immunity still POE, at trial all we know for certain is he raised RD. But given the facts, no doubt he’ll achieve POE at any immunity hearing, especially with the new stuff Jeantel has said.
–Andrew, @LawSelfDefense, #LOSD2
Jeantel has given the whole game away. She knew all along that Trayvon Martin was the aggressor.
Rod Vereen is still keeping an eye on what she says, and she remains carefully scripted.
However, how long before she says the complete truth?
Andrew, if George has immunity from civil suits in Florida, why does Holder continue to say he’s pushing ahead with them?
Is there se kind of legal side stepping ahead? Is there such a thing as a Federal Civil suit, filed outside Florida?
You ask a good question and txantimedia has given you a good response.
I agree that the strategic reason was due to the negative decisions being given by the judge. This can be seen also with her negative response when MOM asked for a JOA.
And in celebration of and solidarity with Stevie Wonder’s ‘boycott’ of Florida over this case, I am listening to many of his albums right now, none of which I paid for.
After all, he’s such a great example of the concept that ‘America is racist, the black man is in danger, Whitey holds him down, and he can’t get ahead’.
Uh huh.
I couldn’t afford to rent his DOGHOUSE to live in, not in my wildest dreams.
Po’ boy.
Oh shit, I just called Stevie Wonder ‘boy’. How many decades in prison does that get me ?
Good thing you don’t live in England.
Andrew, a question–did the plaintiff in any of these cases challenge the “evidentiary hearing first” rule as a violation of the 7th amendment? The summary judgment standard obviously doesn’t under established precedent; if there’s no disputed facts, there’s nothing for a jury to hear. I’m not up on 7th amendment jurisprudence, but it seems that requiring the judge to find facts at an evidentiary hearing before a jury trial infringes the 7th amendment right to a jury trial.
A good and interesting point, but no, it hasn’t come up. At this point it would be the State to raise the issue, and frankly none of them I’ve seen to date strike me as clever enough to come up with that angle. 🙂
–Andrew, @LawSelfDefense, #LOSD2
State Courts often grant “parental immunity” from lawsuits by children. There are “Good Samaritan” laws that grant immunity from civil lawsuits to those rendering aid to a person in distress.
In the vein of Justice Roberts, perhaps then a civil “immunity hearing” is merely a proceeding to determine whether a Plaintiff or set of Plaintiffs have standing to make a claim. The Plaintiffs legal claims are not being tried by the Court. The Court is merely determining whether there is standing to file a claim.
Who knows?
First of all kudos for formulating this argument.
A couple of further thoughts on your very interesting argument. The Florida Statute grants immunity but does not specify a procedure for determination of immunity. The Courts have determined the procedure and standard of evidence via the case law Andrew has cited.
The Defendant in the Civil action can argue (absent definitive case law) that it is the State and not the Civil Plaintiff who should argue in the immunity hearing. The Statutes involved are criminal and who has standing to argue in an immunity hearing is subject to intereptation.
Secondly, the rather brilliant assertion of the 7th Amendment may prove to be pyrrhic. If the case proceeds to trial and a jury determines that there is immunity, the Defendant faces much larger damages than if he waived the immunity hearing.
Sybrina is asking for a do-over, this time with a fine tooth comb.
What Sybrina said:”We just want to have that trial, and let the jury decide,” she said. “And whatever decision comes out of that, we’re going to accept that.
“We may not like it, but we’re going to accept it.”
What she meant?: We’ll accept the verdict as long as Zimmerman is guilty.
$ybrina Fulton needs to ask herself some serious questions about her own mothering of Trayvon Martin. There is a very direct link to how he went feral.
$ybrina Fulton needs to ask herself about the fathering that Trayvon Martin received. She needs to reflect seriously upon the conversations between “Fruit” and her son regarding guns.
$ybrina Fulton needs to take a good look at the gang culture in her own hood. A lot of her questions will be answered when she takes an honest look at what her son was doing in the 12 months prior to his death. It was a downhill spiral, especially in the last 6 months of his life.
It would be great if Andrew could shed some light on a legal provision I never heard mentioned in the George Zimmerman case.
Many who believe that Zimmerman was guilty in this case, often argue back he was the aggressor by the fact he got out of his car in the first place, then followed Martin when he was instructed not to do so. I see the logic here, but I’m wondering is it is misapplied in a legal sense, for which I am asking clarification.
I may be making some assumptions in this case regarding the facts, so please correct me if I am wrong.
The incident took place in place in a gated townhouse community (the Retreat). I believe that even though the residence there are referred to as townhouses, they are legally registered as condominiums. As such, all outside property is common property (by legal definition), privately held by the owners of the association in accordance to their own share ownership of the association. Example: if there are 100 hundred units, each owner would own 1/100th of each blade of grass, sidewalk and tree on the condominium property. Additionally the streets of that development may or may not be owned by the condominium. Because it was a gated community, for sure, the condominium association was at least responsible for the financial up keep of the streets, but they may in fact have actually owned the streets. I don’t know.
My point of this: none of the common property was public property, and it sounds like the streets in that community were not public streets either. With take being said, the argument I have heard repeatedly is that Martin was in a public place where he had a right to be, and that Zimmerman disregarded the orders of Police not to follow, so that makes him the aggressor.
My legal questions are:
• If Zimmerman was a legal share holder of the condominium and share owner of the property, is he required to follow the whereabouts order or actions of a 911 operator on his own property?
• I mean if you are on your own property, are you required to get out of a car or into a car because a 911 operator told you to do so? Can anyone order you to do something ( or not to do something on your own property), legally?
• Is any common property share holder un-entitled to investigate any stranger they identify on the common property ?
I agree that Martin may have been given permission to enter and stay on the common and residence property by Brandy Green, though it may have been unknown by Zimmerman that such permission had existed, and that Zimmerman did NOT have a legal right to shoot on sight any stranger on the common property. However, investigation does seem reasonable, but I may be wrong.
I ask this, because I also live in a condominium townhouse development in Florida in which none of the common property, including streets (though they have names, they are considered driveways), is public property. We have been told repeatedly by our COA that, as condominium shareholders, we are all legally and financially responsible for anything that happens on the common property (slips, falls etc) and that it is important to keep non-permission granted, non-residents off the property to keep our legal liability down. Questioning non-familiar faces is a common practice. Most times it simply ends with, “ I’m staying with my grandma in unit XYZ” and that’s the end of it. But unit owners do question strangers, especially at night if they are walking on our dock system (has been deemed an attractive nuisance because it is nice to walk on, but its proximity next to water and being made of boards, presents a risk).
Also, my condominium association has a provision in it’s by-laws which states the condo unit owner is financially responsible for any actions of their guests, for any damages made by their guests, either to the common property, or to any other unit holder or their personal property. This situation has happened in my development a few times, and each time, the unit owner has gotten stuck with the bill, not the guest who caused the damage. If this is the same situation in the condo development in the Martin/Zimmerman case (The Retreat), will Brandy Green be financially liable if Zimmerman attempts to sue for being punched in the nose (provided he can prove such)by Trayvon Martin ?
Please: My question are genuine. No need to call me a racist or condo wacko for asking about concepts which are germane to my own living situation.
I’ll start off by saying IANAL, but I’ve spent more time in courtrooms that many lawyers I know. I think you’ve raised an interesting point that I have yet to hear mentioned elsewhere.
First of all, George was within his rights keeping an eye on his neighborhood, reporting suspicious behavior, and even in following Trayvon, provided he didn’t do something stupid like brandish his gun, or otherwise directly threaten Trayvon.
And, as we know, he was NEVER ordered not to leave his vehicle. The civilian police dispatcher didn’t order him to either do or NOT to do anything, as was testified at the trial. They don’t do that, and if they do, they are violating their own guidelines.
I assume, though, without necessarily knowing, that this being private property affords some additional measure of protection for someone engaging in a neighborhood watch. Martin, being a guest of a resident, certainly had an equal right to be there, but he didn’t have any absolute rights to wander aimlessly, peer into windows, or otherwise do stuff that might arouse suspicion. And since he was not known to George, George’s suspicions as to him might be even more reasonable, considering that he knew many of his neighbors.
The streets are privately owned. The community entered into an agreement in Oct 2012 for the Sanford police to enforce traffic laws within the neighborhood.
http://www.sanfordfl.gov/modules/showdocument.aspx?documentid=3606
I mean if you are on your own property, are you required to get out of a car or into a car because a 911 operator told you to do so? Can anyone order you to do something ( or not to do something on your own property), legally?
________________________
I can’t answer your questions about Florida property law, because I’m not a Florida lawyer and am not familiar with Florida property law. But you seem to be under the impression that the police ordered Zimmerman to stay in his vehicle. That is not the case.
The dispatcher on the NEN (non-emergency number) call was not a police officer, and he testified at trial that he never gave Zimmerman any orders. In fact, he said that dispatchers are trained that they must not give orders to callers; they are told this can subject the police department to civil liability (if, for example, the caller follows their orders and gets hurt).
Generally speaking, there are circumstances in which the police can legally order a person to do (or not do) something on private property the person owns. However, in this case Zimmerman never disobeyed any police orders, because he was never given any orders — not by police, and not by the civilian dispatcher.
You raise good questions.
It may be that each condo complex or incorporated neighborhood with an HOA has its own set of covenants and restrictions, ie, signs, yard ornaments, construction of outbuildings, prior approval for structural and/or color changes to homes. There are usually annual fees to cover expenses of HOA and upkeep of gates, mowing, landscaping, lighting, etc.
One problem that plagued the Retreat at Twin Lakes and other residential communities in Sanford was the demolition of 5 of their 6 Section 8 projects. Beneficiaries of housing benefits were moved into the Retreat and other such condo and apartment communities around Sanford.
This brought crime and violence and a loss of security and angered some residents who had worked hard to get out of the projects and did not like it one bit that the projects came to them.
Neighborhood Watch groups were springing up in each community as a result.
http://thegrio.com/2012/04/04/closure-of-housing-projects-stoked-tensions-in-sanford-before-trayvon-martin/
It would be interesting to know whether Brandy Green was a longtime or a newly relocated Section 8 beneficiary.
It wasn’t a 911 call it was to the non-emergency number, forever known as the NEN call. Further more the dispatcher never said “not to get out of car”.
The NEN dispatcher said: “are you following him” GZ: “yeah” Dispatcher: “We don’t need you to do that” GZ: “OK”
http://www.documentcloud.org/documents/326700-full-transcript-zimmerman.html
On the NEN recording this exchange took about 5 seconds from when GZ started to run and then stopped running when he GZ said OK. No matter what a police dispatcher says to a caller they are not allowed to give orders only suggestions that you are not lawfully required to obey.
True. But George was the NWP “Captain” and he knew when he set up the program and from training and reinforcement at all of the meetings that it was prohibited for him or anyone on the NWP to follow anyone that was suspicious. He knew that he was supposed to call 911 and keep a safe distance, his job was complete at that point if he did those two things.
You have asked this over and over.
The dispatcher asked him twice after the ‘you don’t need to follow…’ if he knew what the suspect was doing…that was a request to keep a visual on the suspect if possible.
Stop being disingenuous and trying to cast suspicion on a guy trying to stop crime and violence in his neighborhood.
There is evidence that Trayvon was a hoodlum, burglar and a druggie. He was violent. He attacked and threatened George Zimmerman with death.
Trayvon did not stop the beating even when John Good threatened and said he had called the cops.
Uncle Samuel, Styro was talking about George running for 5 seconds when the 911 (NEN) “asked” him not to follow, I was replying to that from Styro. 5 seconds and then George isn’t following anymore is Styro’s belief. But if you watch George’s recreation on YouTube, starting at 8:30 (thanks to poster Redneck) you will see George fabricating a story about his complying and “not following” Treyvon after he was told. But it is a fabrication, clear to see if you remove the blinders of: “Everything that George said was absolutely true, and anything else is a damn lie!”
George is free as a bird, he is in no jeopardy of even a single day in the prison, so I am not discussing this to smear George in anyway nor to reclaim whatever is left of Treyvon.
Funny, I was just recalling something that happened years back. I was going home one afternoon and I saw two people that looked very different from all of the others in my neighborhood, kind of like hitchhikers with backpacks (think: grungy) sitting on one of the main streets. I was suspicious and I called 911 immediately from my car to ask them to go check on the strangers; I was concerned something bad might happen. The 911 operator was incredulous, she asked me something to the effect of, “OK, I understand your concerns, but what are they doing that is actually illegal?” I had no answer other than, “Nothing.” She replied, “OK, we will send an officer when one is available.” End of call. I went home. And there were no crimes in my neighborhood. Taught me a lesson.
The NWP Captain and other NWP members really do not have any role in following suspicious people to help police possibly pinpoint their ever changing location(s), IMO. They just watch out for their neighbors and call in suspicious activity if/when they see it. Call it in and keep a safe distance. Or do like I did, call it in, and go home.
George was NOT RUNNING – it was windy that night.
Test it yourself…cell and cordless phones pick up wind and breathing noise when people are walking and trying to talk at the same time.
Driveby – What a fascinating anecdote. It certainly proves to me that no one who looks suspicious ever commits a crime. And the facts are identical to those in the Zimmerman case.
Driveby,
The 911 operator was being testy with you because you were calling 911 to report a NON emergency. You see, idiots that call 911 to report a couple of hippies really pisses them off.
Fortunately George had far more sense than you and called the non emergency number.
Not to mention that the NWP coordinator with the sanford police stated during her testimony that folks in the neighborhood watch were encouraged to follow at a distance. exactly what GZ was doing. Of course based on lighting at that time of year the distance would have been shorter than in the daylight if you wanted to keep the person within eyesight.
He was prohibited from following? By whom? Where is there any evidence of that? It is not illegal to follow anyone anywhere in this country unless someone gets a restraining order against you.
“from training and reinforcement at all of the meetings that it was prohibited for him or anyone on the NWP to follow anyone that was suspicious”
According to the testimony given at trial, your statement is dead wrong.
They’re not encouraged to APPREHEND suspects, and rightly so. That’s not the same as following, observing, or communicating with police, all of which are perfectly sensible actions.
^^^^^This ^^^^^
Re: Apprehension. Floridians have a common law private person’s arrest. But as others have mentioned, it not a good idea unless you are trained and equipped and it’s best to have some backup.
In California private person arrest is authorized by statute. For most misdemeanors even the police can only arrest if they witness it. Consequently, if you witness a misdemeanor and call the cops, they will take the person into custody for you but you are the arresting person and will be listed as such on the arrest report.
rantbot is correct. The police really don’t want NW people to make apprehensions because generally they aren’t trained or equipped to do so safely. Following someone from a safe distance is in no way prohibited. Often, you need to observe someone as they are moving through your neighborhood to ascertain whether or not their presence and actions are legitimate.
Pro equipment (sprays, tasers, cuffs, etc) is certainly useful for someone investigating a suspicious person (who may, of course, turn out to be entirely harmless), but maybe the most useful thing is that the police who eventually show up have uniforms and are driving cars which say POLICE on the sides. Without that, the suspicious person has no idea who’s approaching him – a creepy cracker rapist, a vigilante, a robber, a rival gang member, a cranky guy who wants those kids to stay off his lawn, whatever.
I forbid you to use the word FORBIDDEN.
No one involved with the Neighborhood Watch has authority to forbid anyone from doing anything.
It’s not a biblical epic with a robed prophet holding a tablet throwing a thunderbolt to assure obedience.
Therefore THOU SHALT STOP MAKING FALSE ASSERTIONS!
HE WAS NEVER TOLD TO NOT LEAVE HIS CAR!!!!! STOPPPPPPPP SAYING THAT!
Geez, lighten up, he said he might have the facts wrong:” I may be making some assumptions in this case regarding the facts, so please correct me if I am wrong.”
By now, repeating disproven rubbish like that is a bit like chiming in with, “I could be wrong, but Columbus was clearly a fraud because the world is flat.” No, the world isn’t flat, and Zimmerman was not told to stay in his car.
Andrew, I don’t know if you will but in addition to this information, would you consider doing a write-up on ‘stand your ground’? My reason for asking is that it seems to be gaining steam as an issue even though it had nothing to do with the Zimmerman trial. I want to know, from a legal perspective but breaking down in the layman’s terms, the background on why this law was created and what was the intent. I understand that in some states and some countries that you have an obligation to flee if you are attacked, which personally I think is ridiculous as it emboldens thugs. I want to be able to discuss SYG logically and reasonable when it comes up in conversation, as it appears it will be doing if the media continues to hammer on it. Thanks
My limited understanding of SYG origin is that it was getting very difficult for people with legitimate claims of self-defense to prove they couldn’t retreat. The whole notion of, “you didn’t have to kill him, you could have done x, y, or z” when you were the innocent person who was attacked and were defending yourself. In addition, I believe it also was created to help stop people from suing you after you had legitimately defended your own life.
Yes, I’ll add that to the list, good suggestion.
–Andrew, @LawSelfDefense, #LOSD2
Yes, one nice concise “SYG for Dummies” post that would be easy for people to link to when they’re trying to cluebat the ignorant on Twitter and in blog comments would be handy!
…and make sure to include that Florida is NOT the only state with this kind of law. I’m tired of reading nonsense like this.
It’s in my book–33 states are “stand-your-ground,” even if they don’t use those words, they impose no generalized duty to retreat.
–Andrew, @LawSelfDefense, #LOSD2
Yep…33 states…
Stevie is going to have a pretty quick tour next time 🙂
http://www.cnn.com/2013/07/16/showbiz/stevie-wonder-florida-boycott
Someone had a question earlier, suggesting in my book I sometimes say it’s 33 states, and in another place 32 states. There is one state–sorry, I’m blanking on it, Minnesota, Montana?–where the law is ambivalent and leaves it up to the court. So, I may have in one place counted that as SYG (because the court can choose that option) and in another not SYG (because the court has that option, too).
–Andrew, @LawSelfDefense, #LOSD2
Most people never count California (my state) either for some reason, but after reading your book, I was pleased to see that California actually has very strong self defense laws, including no duty to retreat. 🙂
You know, Sybrina, Tracy and Trayvon being from Miami Gardens where the crime rate is 70% above the nation average
http://spectator.org/archives/2013/07/17/the-new-school-on-cnn
Trayvon was just suspended after evidence of criminal activity was found in his backpack. This was his third suspension. The contents of his cell phone and online webpages is alarming.
His mother had thrown him out of her home, due to violence and drugs.His parents and the denizens of the ghettos across the US may not think Trayvon was abnormal…but the folks in Sanford and elsewhere in FL and the nation sure as H311 do.
We are also disgusted with the whole child St. Trayvon of Skittles N Hoodies set of PR lies.
Crime is crime. Trayvon was old enough to serve in the military and to be tried as an adult.
Normal in Miami Gardens is kinda like normal in Detroit, Chicago, maybe even Pakistan or Iraq, just with guns and drugs, and pipe bombs, not suicide bombs.
One heinous example. Execution style hit. Did they know Trayvon, the Fultons, Martins or something?
One person investigating St. Trayvon’s school and police records walked out of the Miami Dade Police Bldg to find his auto on fire.
These people play dirty. There’s a lot of money involved here.
And a hard-core political base (NBPP, NAACP, CPUSA)
This is not your Grandma’s Democrat Party.
The English tourists who were murdered had wandered into Miami Gardens. I have often wondered if Trayvon Martin’s friends had participated in their murder.
Also Trayvon Martin had as a friend, a youth by the name of Kim Durrant. He murdered his own mother.
We should all really hate that little M’fer Treyvon! He, his brother, his mother, his friends, his neighbors, people who live in that community, or people that just went there (pick one) did some really bad things! Thank you George for ending this rampage that Treyvon (or whoever) had been raining down on Miami!
Sarcasm for idiots…
There’s a typo in your comment – you wrote “Sarcasm for idiots” instead of “Sarcasm from an idiot.”
No, there is no typo. Is that all you have, flippant comments? No substance? Did you watch the trial?
I followed the trial assiduously, and am quite familiar with Florida law. Neither is required to recognize that you are a dishonest fool.
You don’t have to hate him just because he was a little M’fer.
You do, however, have to face the fact that he was indeed a little M’fer.
Rantbot you are and embarrassment! You wait until a comments section is really full and then you go down the line and rage on any post that you like with your misinformed beliefs, knowing that most people, like me, do not go back to reread the followup post from rats like you. Try actually posting an original comment once in a while! Go ahead and stick your neck out! Jerk!!!!
Driveby; dead wrong, as usual.
Good luck on your new career as a wit. Maybe you should make a fresh start somewhere else.
Watch Larry Elder slam Piers Morgan on Morgans show.
http://hotair.com/archives/2013/07/18/war-larry-elder-versus-piers-morgan-on-the-zimmerman-trial/
I certainly liked what Elders had to say, but I did find him rather rude. I wish he would have toned it down a bit.
This is a terrible slide, just terrible. Self defense is yellow and common sense is red.
“Requires” and “only” are red so those go with common sense.
Everything else is yellow so that goes with Self defense.
No wait. The colors are just a crazy person coloring everything as crazy people do. Nevermind.
Now I feel obliged to point out that the slide is not MY creation–it was one of the State prosecutor’s slides from their closing at the Zimmerman trial.
Just to be absolutely clear, I didn’t do that s$#@. 🙂
–Andrew, @LawSelfDefense, #LOSD2
Only BDLR, GUY, MANTEI and COREY could do such a shocking slide.
So the comment is correct – crazy people.
I was going to suggest a 1st grader could have done it but then they’re not crazy.
Andrew,
I just noticed that the Kindle version of LOSD2 was done and wanted to thank you for the extra effort it took you to format it this way. So I bought it. 😉
Thanks again also to you and Dr. Jacobson for your ongoing coverage of the trial and surrounding issues. I believe I would have come unhinged if I’d had to rely on the rest of the crap available out there…
Now that things have settled down a bit I wanted to remind you to check out Dan Carlin’s Hardcore History podcasts. He spins awesome narratives of history and backs them up with extensive show notes/ bibliographies on his site, frequently including Victor Davis Hanson. I mentioned them in an earlier post in response to you saying you’re a military history buff. That was kind of in the middle of everything though, so…
FYI, just fair notice, but we just announced a 10-for-10 sale on Twitter-$10 off the LOSD2, plus free shipping for the next 10 orders, with coupon “LOSD2-10-for-10” (without the quotes) at checkout. Only good at http://www.lawofselfdefense.com (not Amazon).
About 5 of those coupons were used up immediately, so if interested, now’s the time.
–Andrew, @LawSelfDefense, #LOSD2
Your book price changes faster than the prices and the corner gas station!!! LOL!!
Price is driven by Amazon, and they have been shifting the price around like crazy–anywhere from $30 to $50. I try to offer coupons to keep things reasonable–had a 10-for-10 ($10 off for first 10 sales) tonight. Will have more of those.
Anyone with truly dire circumstances–long-term unemployment, deployed serviceman (or his family)–should let me know, I can always work something out. My goal is not to make struggling people monetarily poorer, but rather to make everyone intellectually smarter (albeit, without me starving in the process).
–Andrew @LawSelfDefense, #LOSD2
Andrew did you see my comments above about Holder freezing Zimmerman trial evidence?
Didn’t realize so much had already followed.. Can you comment on heat e’s uo to doing that?
What he’s up to…
Greetings Andrew, longtime reader here, attorney, first time posting.
Many thanks for your excellent coverage of the Zimmerman trial. I wanted to let you know that I found your insights, observations and analyses to be among the best in the all of the media. The clarity you brought to the table was refreshing. You truly deserve some kind of award (ok, I’ll by your book).
Two questions:
The Martin family’s civil attorneys stated many times that that they “just wanted an arrest” of Zimmerman. Given the section of Florida’s SYG statute regarding immunity from civil liability, how would an arrest alone have benefited them?
And do you think the immunity from civil liability section influenced Corey’s decision to proceed by way of probable cause affidavit rather than by grand jury? If so, how?
Thanks. It seems clear that Corey’s office was working closely with Crump et al., the question is to what extent it might have been specifically in regard to SYG.
(1) I presume the Martin family and lawyers wanted the arrest to provide more leverage in their suit of the HOA, but i’d have to check the timeline.
(2) No, there’s only one reason Corey side-stepped the grand jury process. In a grand jury only the State gets to present evidence, the accused does not. But the accused DOES get to impeach the evidence presented by the State. Such scrutiny would have destroyed Corey’s ambition for a prosecution of Zimmerman. Hence that monstrosity of an affidavit of probable cause, instead.
–Andrew, @LawSelfDefense, #LOSD2
What a lot of non-Floridians don’t know is WHY the SYG laws came into being in the first place. For a long time we had an unwritten policy among some of the SAO’s down here to be critical of people defending themselves. The typical effort you see now.
However, the grand juries had NO problem refusing to indict people for defending themselves and their property. In fact, we had one case where two low-lifes tried to steal a boat motor out of the backyard of a home late a night and got shotgunned for their efforts. The grand jury said, “Shouldn’t steal boat motors from guys who own shotguns!” Shortly thereafter, the law came into being.
It was a result of what the PEOPLE wanted, not the prosecutors as we see in the image of those like Corey.
Thank goodness the jury stood up. I felt it was 50/50 at best.
Good work Andrew. I often send people to this site for an education.
Gee I hope someone is still reading this. In the event that Mr. Zimmerman is sued, my understanding of SCOFLa decision in Dennis is that the trial court would then hold an evidentiary hearing. Since that would probably include all the materials in the criminal case, it would not be long, but can the plaintiffs call George Zimmerman?
Also can the defendants call Corey and BDLR? Specifically to ask them about why they did not present the case to a grand jury. Since they didn’t I believe the defense can argue that they did not because they did not have probable cause, which would be the reason
to call them. TO be honest I just want to see West and OMara examine those two.
[…] (TheFiscalTimes.com) LINK: “Stand Your Ground!” (LivelyLegal.com) LINK: “Florida’s Self-Defense Immunity Law: How it really works” […]