This was from Mitch's Facebook post.
As a trial lawyer whose criminal defense practice focuses on the law of self-defense, I am somewhat puzzled by the calls to repeal Florida?s stand-your-ground law as a result of the Travon Martin shooting. To date, the facts that have been reported do not support an opportunity for Zimmerman to have avoided the shooting by retreating. That?s not to say, however, that Zimmerman won?t ultimately be found criminally responsible under Florida law.
It?s true Zimmerman followed Martin whom he thought was a suspicious person in the neighborhood. But there was nothing unlawful about that even though he was advised against it by the 911 operator. He claims he was returning to his truck when he was attacked, his nose was broken, his head smashed against the concrete several times and an attempt was made to take his gun away from him. There is no evidence that he had time to react or retreat before he was punched or taken down.
Florida law, like many other states, allows a person to use deadly force to stop a forcible felony (serious felony, such as murder, rape or aggravated assault). If Zimmerman?s version of the altercation is correct, he was flat on his back before he found his head being bashed against the sidewalk. Pounding someone?s head against a slab of concrete, in most states, would constitute an aggravated assault, justifying the use of deadly force. A stand-your-ground law would have had no application in such a case. It would be difficult, if not impossible, for a person pinned against the ground to have retreated. Even in states that have no stand-your-ground law, if it?s impossible for a person to retreat, he is not required to.
It seems what those who are protesting are really claiming is that Zimmerman started the fight. In legal terms, the person who starts or provokes a fight is known as the ?initial aggressor.? If Zimmerman started the fight, even in a stand-your-ground state like Florida, he would not be justified in claiming self-defense. In every state in the union, not just Florida, the person who is the initial aggressor loses the right of self-defense unless he immediately stops fighting and effectively communicates that he does not want to continue the conflict. An initial aggressor must retreat if he is physically able to do so, but this duty to retreat comes from the initial aggressor rule, not from the stand-your-ground rule.
New York State?s jury instruction defining the concept of ?initial aggressor? is perhaps the most illustrative:
- Initial aggressor ? means the person who first attacks or threatens to attack; that is, the first person who uses or threatens the imminent use of offensive physical force. The actual striking of the first blow or inflicting of the first wound, however, does not necessarily determine who was the initial aggressor. A person who reasonably believes that another is about to use physical force upon him need not wait until he is struck or wounded. He may, in such circumstances, be the first to use deadly physical force, so long as he reasonably believed it was about to be used against him. He is then not considered to be the ?initial aggressor,? even though he strikes the first blow or inflicts the first wound. Arguing, using abusive language, calling a person names, or the like, unaccompanied by physical threats or acts, does not make a person an initial aggressor and does not justify physical force. . . . New York Justification Jury Instructions 35.15 USE OF PHYSICAL FORCE IN DEFENSE OF A PERSON.
Although Florida?s statute is not as descriptive as New York?s jury instruction, the concept of the initial aggressor is the same, not just in Florida, but virtually every state in the union. This rule can be applied to either party to an altercation. If, for example, Mr. Zimmerman had pulled a gun on Mr. Martin as the two were simply arguing, then Martin would have been justified in using force, including deadly force, to take the gun from him to avoid being shot. Under Florida?s stand-your-ground law, Martin would have had no duty to retreat before using such force against Mr. Zimmerman. If, on the other hand, Martin were the first to use deadly force by knocking Zimmerman to the ground and bashing his head against concrete, Zimmerman would have had justification to defend his life with deadly force. It would all depend on application of the ?initial aggressor? concept, which has nothing to do with the stand-your-ground law, at least from the facts that have come forth thus far.
If the evidence ultimately bears out the first scenario, that Zimmerman pulled a gun before Martin used any unlawful force against him, Florida?s stand-your-ground law may prove to be an argument in favor of Martin. If the protestors understood this as a possibility, one wonders whether they would be so quick to call for its repeal?
Attorney Vilos is the co-author of the book Self-Defense Defense Laws of All 50 States available on Amazon.com.