It has been more than a month since, February 26, 2012, the day that George Zimmerman shot and killed the 17-year-old, Trayvon Martin. Despite the fact that Trayvon was unarmed and was simply walking through the neighborhood wearing a hoodie, carrying Skittles and a drink, his killer has still not been arrested. In a tragic story that has gripped the nation, people have shown outrage against the way the police have handled the situation and the fact that Zimmerman is still a free man.
So why is Zimmerman still free? Anyone who has been following this case, is now familiar with Florida’s “stand your ground” law. If you are not, here is the actual statute. The relevant parts are highlighted in blue and underlined.
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1)A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a)The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b)The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2)The presumption set forth in subsection (1) does not apply if:
(a)The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b)The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c)The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d)The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle 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 entering or attempting to enter was a law enforcement officer.
(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.
(4)A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(5)As used in this section, the term:
(a)“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b)“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c)“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
History.—s. 1, ch. 2005-27.
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.
(3)The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
History.—s. 4, ch. 2005-27.
The fact that this law gives Zimmerman immunity is important because, in most jurisdictions, the defendant has the burden of proving a self-defense claim by 1) showing that a reasonable person in his situation would have felt like his life was in danger and 2) that the defendant actually believed his life was in danger. This is a high standard that is difficult to prove, but as highlighted above the defendant may not even have to face the jury, if he prevails under this statute because immunity is a complete bar against criminal prosecution and civil action. This concept is adequately summed up on the law firm website of “Hessinger &Kilfin Law”, which states that:
“The protection given by the law is the highest protection, immunity from prosecution. No longer must you place your fate in the hands of the jury while pursuing the affirmative defense of self-defense. Your legal team can go proactive to prevent charges from being filed, or dismissed if they have been filed already. With proper legal representation you may be entitled to immunity from prosecution for any harm, even death, which you inflict as a result of your efforts to lawfully defend yourself.”
But would killing an unarmed person be reasonable self-defense? Maybe. Recent reports have now come out stating that even though Zimmerman followed Trayvon on foot, the altercation happened when Zimmerman was returning to his SUV. According to Zimmerman’s account to the police, this is when Trayvon approached Zimmerman from behind, punched him in the nose, which sent him to the ground, where Trayvon continued to beat him and slammed his head into the sidewalk. Joe Oliver, a friend of Zimmerman’s, believes that it was Zimmerman screaming for help on the 911 tapes. Zimmerman’s attorney, Craig Sonner, told ABC News that, “George Zimmerman suffered a broken nose, and had an injury to the back of his head” and that this was clearly, “a case of self-defense.”
Unfortunately, this is not the first time the controversial “stand your ground” law has been questioned. The Miami Herald have mentioned a few cases where this law has been used as a defense and where the killer never went to trial because the complete immunity prevented a criminal prosecution (http://www.miamiherald.com/2012/03/24/v-fullstory/2710297/stand-your-ground-law-had-a-sad.html ). There are several reasons why the “stand your ground” law has made it so difficult for law enforcement to make an arrest. First of all, under this law, a criminal prosecution doesn’t just mean a trial…it also includes the prohibition of an arrest, detaining the killer, and any charges. Secondly, in most states, usually after a violent act has occurred, the defendant has the burden of proving that his actions were justified because of self-defense. But under Florida’s statute 776.032(2), it states that a police officer “may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.” This means that now, the law enforcement agency has to presume the act was lawful, unless probable cause shows otherwise. Finally, the above statute also states that law enforcement “may use standard procedures for investigating the use of force” which gives the law enforcement agency the initial determination of whether or not immunity applies without first consulting with a prosecutor.
This case will be heard by the grand jury on April 10th, where it will be determined whether or not Zimmerman will be charged.
DISCLAIMER: I am not licensed nor do I practice law in the state of Florida. The above analysis of the statute is simply my opinion.