Trayvon Martin: A Little Florida Law

776.032?Immunity from criminal prosecution and civil action for justifiable use of force.—

(1)?A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2)?A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

In most situations, an affirmative defense wouldn’t play into the probable-cause determination. In a Florida case in which the accused may have used force (including deadly force) in lawful defense of himself (776.012, 013) or of others (776.031), the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

In light of that, the action of the Seminole County State Attorney’s Office in declining to charge George Zimmerman early in the investigation seems less unreasonable: the law doesn’t allow an arrest if Zimmerman was acting in self-defense.

Was Zimmerman acting in self-defense?

776.041?Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1)?Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2)?Initially provokes the use of force against himself or herself, unless:

(a)?Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b)?In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

If a jury believes (beyond a reasonable doubt) that Zimmerman initially provoked the use of force against himself, Zimmerman loses unless (the jury has a reasonable doubt about whether) Zimmerman didn’t have any other options to prevent great bodily harm to himself.

That’s some pretty fuzzy stuff there; you can understand why a small-county SA might decide that the better part of valor, when faced with a guy who has a plausible self-defense claim, is to let him go and let the police finish their investigation.

(Thanks to Miami criminal-defense lawyer Brian Tannebaum for directing me toward the appropriate portion of the Florida Statutes.)

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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10 Responses to Trayvon Martin: A Little Florida Law

  1. I did a full write up on how the Stand Your Ground act in the Trayvon Martin tragedy here: http://blog.richardhornsby.com/2012/03/trayvon-martins-death-is-not-a-stand-your-ground-case/

  2. Thomas Stephenson says:

    Good stuff.

    I don’t see a problem with the police not arresting Zimmerman that night, given that he had a plausible claim of self-defense.

    Now, most of the reason it was plausible was based on what Zimmerman said. It did strike me as a bit strange to see the police take a shooter at his word — that doesn’t normally happen. In fact had Martin been the shooter, I have a strong hunch that the police would not have been so cautious about investigating the crime.

    And once again, the problem is not that police and prosecutors handle the Zimmermans of the world with kid gloves — it’s the treatment they give to the “thugs” of the world and how it doesn’t match that given to the “upstanding citizens.”

  3. Jeff Norman says:

    Great post, Mark. Does it matter if whatever might have provoked Martin was lawful behavior, or does the statute apply to only provocations that are inherently unlawful?

    • Mark Bennett says:

      It appears—from what I’ve seen of the statutes and the jury charges—that it doesn’t matter that what provoked Martin was lawful behavior.

      • Mickey Fox says:

        That being said, if Zimmerman entered into the situation with an unlawful purpose, then would his self-defense claim still be meritorious? That is, was Zimmerman’s original intent an unlawful harrassment of Martin, would Martin’s then possibly lawful alleged actions be a basis for Zimmerman’s self-defense claims?

        I find it difficult to understand how one can place one’s self into a hazardous situation (even possibly acting against advice of the 911 operator), possibly provoking an actor into an action which would later justify the use of deadly force. This runs a bit too close to how some police-involved incidents turn out (i.e. provoking an actor so as to allow for the meting out of street justice).

      • Mark Bennett says:

        I’m not sure what an “unlawful harrassment” would be in this situation. But the jury charge doesn’t seem to give any guidance on what sort of provocation is either necessary or sufficient.

  4. Jeff Norman says:

    What if it was unreasonable for a person to feel provoked? The perceived provoker is nonetheless deprived of the right to use deadly force in self-defense?

    • Mark Bennett says:

      When in doubt, go to the jury instruction to see how a jury would be told to decide the issue. Here’s what I have found:

      However, the use of deadly force is not justifiable if you find:

      2. (Defendant) initially provoked the use of force against [himself] [herself], unless:

      a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).

      b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

      It doesn’t look like the jury is asked whether the provocation was reasonable. If that’s right, the provocation could be words alone, or even gestures.

      • Jeff Norman says:

        Thanks, Mark. Maybe Fla. Stat. § 776.013 is relevant?
        (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

      • Mark Bennett says:

        It’s relevant, but it doesn’t eliminate the effect of provocation. See 776.041:

        776.041?Use of force by aggressor.—The justification described in the preceding sections of this chapter [including 776.013] is not available to a person who:

        (2)?Initially provokes the use of force against himself or herself

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