Well, it’s Sunday evening, and that means it’s time to set the mood for . . . you guessed it, another week of Florida v. Zimmerman.

I thought I’d do that by sharing some thoughts on an aspect of the State’s (apparent) theory of the case this week that centered on an area of the law with which I am passing familiar–the law of self defense.

Thoughout the week the State has sought to minimize the apparent seriousness of Mr. Zimmerman’s injuries. These efforts reached an almost ludicrous stage during Friday afternoon’s re-cross of Lindzee Folgate, the physician’s assistant who examined Zimmerman the day after the shooting. Apparently frustrated at Mr. O’Mara’s masterful performance on cross-examination (see Zimmerman Trial Day 5 – Analysis & Video – State’s own witnesses undercut theory of guilt for our analysis) Mr. de la Rionda asked, as if he meant it, whether all people have perfectly round heads or wasn’t it true that a person can have a bumpy or raised area of their head as a normal state of affairs, and not solely as the result of traumatic injury.

Was he trying to suggest that the normal appearance of Mr. Zimmerman’s skull included contusions, abrasions, lacerations, and blood trails? It was more than a little bizarre.

Screen Shot 2013-06-28 at 5.03.19 PM

Lindzee Folgate, Zimmerman’s physician’s assistant, under cross-examination by defense counsel Mark O’Mara

In fact, the State had pounded on this theme of “Zimmerman’s minimal injury throughout the day, asking witnesses if they had observed Zimmerman to be staggering or unresponsive to communication (it must be said that more than one witness–State witnesses, mind you, all of whom were previously deposed by Mr. de la Rionda or a colleague, testified that Mr. Zimmerman had, in fact, complained of dizziness, etc.)

It seems that the State is attempting to establish in the jurors minds that Mr. Zimmerman could not have been justified in his use of deadly force in self-defense unless he had actually and already sustained life-threatening injury. If one accepts this notion, then the fact that Mr. Zimmerman’s injuries have (apparently) turned out to be transient may substantially attenuate his claim that his use of deadly force in self-defense was lawful.

(I say Mr.Zimmerman’s injuries were “apparently transient” because it may be many years before there are clinical symptoms of any brain injury resulting from the repeated blows to Mr. Zimmerman’s head by well-thrown punches and sidewalk cement. What is emerging from the NFL with regard to late-life brain damage among players who have suffered repeated blows to the head is not encouraging.)

Must You Wait for the Attacker’s Bullet to Strike Before You Act in Self-Defense?

The very idea that the State is seeking to establish–that self-defense is conditional upon actually suffering serious injury–is, of course, ridiculous on its face. The purpose of the law of self-defense, particularly in the context of the use deadly defensive force, is to be able to protect yourself from an imminent threat of death or grave bodily harm before that harm occurs, not to require that you actually experience death or grave bodily harm before you may act to protect yourself.

Under the conceptual framework being advanced by the State, if a man were to clearly state his intention to kill you, slowly remove a pistol from his desk drawer, point it at you, and pull back the hammer, you would be required to wait until he shot at you–indeed, until he actually hit you–before you would be entitled to use deadly force to protect yourself. After all, if you acted with the swiftness appropriate to the occasion and struck down your attacker before his bullet tore through your body you wouldn’t have so much as scratch to later show Mr. de la Rionda as justification for having used deadly force in self-defense.

Indeed, it is not hard to imagine a circumstance in which waiting to be struck before you act in self-defense can be interpreted as violating the second principle of the law of self defense, imminence, thereby stripping you of your right to argue self-defense at trial.

For example, if in the same scenario your attacker shoots you before you act (as Mr. de la Rionda seemingly requires), then throws his pistol out the third-story window and moves to leave the room, by all reasonable appearances intending to leave you to bleed out on the floor, you have no right under the law of self-defense to shoot him.  At that point he no longer represents an imminent danger of death or grave bodily harm. Shooting him as he departs might be extremely satisfying, and even morally just (depending on your moral framework, eye-for-an-eye, and all that), but it’s not lawful self-defense.  It’s unlawful retaliation.

(As an aside, I note that a reasonable person might suggest it best in such a situation, once the deadly threat is apparent, to shoot first, shoot straight, and place a timely call for appropriate medical treatment for the poor fellow (assuming that medical treatment would be productive under the circumstances).  But that’s just me.)

I strive, as always, to be a fact- and evidence-based blogger on matters of the law of self-defense, so prepare yourself–here come a few statutes, with a jury instruction thrown in for the fun of it.

782.02. Justifiable use of deadly force

First up is the admirably brief 782.02. Justifiable use of deadly force, which states:

The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which such person shall be.

Note those words: “resisting any attempt”. You need not wait until the harmful act has been completed, or has even begun its application. You are permitted to use deadly force under the circumstances described to resist even a mere attempt to murder you or to commit a felony upon your person or upon your home where you shall be. Any requirement that you first suffer disabling injury? No. Any requirement that you first suffer trauma sufficient to cause bruises that last longer than a day, or even half a day? No. Any requirement that you first suffer so much as the slightest scratch of your skin? No, no, no.

776.012 Use of force in defense of person

What then of what most people first think of when they look to Florida’s deadly-force self-defense statute, 776.012. Use of force in defense of person, another admirably brief statute. It provides in relevant part;

[A] person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony . . .

Again, note those words: “to prevent imminent death or great bodily harm”. Again, the intent of the legislature, and our own common sense, can read such language in only one way–you may lawfully act in self-defense in prevention of death or grave bodily harm, and without any requirement that you first suffer some death or great bodily harm.

Jury Instruction 3.6(f). Justifiable Use of Deadly Force

Finally, let us take a step away from the statutes and look to what the jury will be ordered by Judge Nelson to apply to the facts of this case: Florida Jury Instruction 3.6(f). Justifiable Use of Deadly Force. This, I’m afraid, is not brief reading, running to nearly 1,600 words (including all alternative language). The relevant portion for our purposes, however, is not too long:

The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:

1. another’s attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].

A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent 1. imminent death or great bodily harm to [himself] [herself] or another, or 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.

I thing I risk not too much if I assume that the bolding I’ve inserted in the jury instruction above is sufficient to drive the point home.

Caveat:  The Fear of Imminent Harm Must Be Reasonable

There is one caveat I feel obliged to mention, although it is not relevant for the purposes of discussing Mr. de la Rionda’s theory of the case, such as it is.  One cannot use deadly force to prevent a fantastical or imaginary threat of death or great bodily harm.  Rather the threat must be such that a reasonable and prudent person would have perceived as an imminent threat of death or grave bodily harm.  Indeed, the threat need not even be REAL–imagine, for example, that your attacker’s gun turns out to be a realistic-looking water pistol.  So long as a reasonable and prudent person would have perceived the threat as one of imminent death or grave bodily harm the use of deadly force in self-defense is justified–and no need to first allow yourself get spritzed with water so that you can show the state your damp shirt.

Naturally, I’ve now opened the door to a discussion of what is meant by the phrase “a reasonable and prudent person.”‘  Unfortunately, that’s beyond the scope of this single blog post.  Perhaps I’ll try to cover it later.  Alternatively, I’ve heard that there’s a book available that covers the matter in detail:  The Law of Self Defense, Second Edition (for a few more days available at a 30% pre-order discount and free shipping).  Take a look.

What Could BDLR Be Thinking?

The wonder in this instance is not in the statutes and the jury instruction, which are marvelously clear on this issue, but on what would lead State Prosecutor Bernard de la Rionda to believe that the considerable investment he is making in this theme of “Zimmerman’s minimal injury” can possibly yield a positive return for him.

Can he be unaware that Judge Nelson will instruct the jury precisely as described in 3.6(f)? Or that O’Mara and West will not drive this very point home relentlessly to the jury–all the while showing them those brutal, bloody, early photos of Mr. Zimmerman’s injuries?

Well, as I’ve said perhaps too many times before, if the facts are on your side pound the facts, if the law is on your side pound the law, and if neither is on your side, pound the table.

I expect the State’s table may need some refinishing before this trial has ended.

Join us Tomorrow, Monday, July 1, 9:00AM

That’s it for blog posts from me for tonight, although I’ll be haunting the comments areas, as usual.

Don’t forget to join us again tomorrow, 9:00AM, right here at Legal Insurrection for day 6 of the trial proper. As usual we’ll have live-streaming video of the courtroom (dual sources–safety first!), as well as our rolling Twitter feed of selected commentators. My own tweets can always be identified as coming from @LawSelfDefense.

We again plan to provide a mid-time up-date post near the end of the lunch recess (or soon thereafter), or anytime sufficiently exciting events take place during the say.

See you then!

–Andrew, @LawSelfDefense

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!

You can follow Andrew on Twitter on @LawSelfDefense (or @LawSelfDefense2 if I’m in Twitmo, follow both!)on Facebook, and at his blog, The Law of Self Defense.


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