Sooo, the results are in and 40% of the citizens of North Carolina are upset, frustrated, sad and/or [insert the obligatory angry adjective here] and the other 60% are [insert appropriate adjective here]. This state is the 30th state to institute a ban on gay marriage and other types of domestic partnerships will likely no longer be recognized. I just really don’t understand how discriminatory laws like this can still occur in 2012…
I don’t understand because there is this concept called a “fundamental right”…where something is so fundamental to our idea of humanity that it transcends the legal system. These fundamental rights are considered so important, that any law restricting it must pass strict scrutiny (where the state must show a compelling governmental interest that is narrowly tailored to meet that interest).
The United States Supreme Court has legally recognized 3 main fundamental rights, which include:
1) the right to travel
2) the right to vote, and
3) the right to privacy, which includes:
a. the right to procreation,
b. the right to an abortion during the first trimester,
c. the right to private education,
d. the right to contraception,
e. the right of family relations, and last but not least,
f. the right to marry…
But I guess the right to marry is not a fundamental right… if you are a homosexual. I guess because homosexual love is wrong and “threatens” the sanctity of heterosexual love. Because you know, the marriage between a man and a woman is the “right” kind of love, and it is everlasting and never abusive and never ends in divorce. And homosexuals are the root of all evil and the cause of moral turpitude and war, famine, and natural disasters. (And in case you didn’t know…you were supposed to read this paragraph in your sarcastic voice).
Or what if you are someone like myself…who is not a homosexual…but who will most likely not have a “traditional” marriage, which from the illustration above proves that, what is considered a “traditional marriage” changes with time. What if I really wanted to be a co-parent and adopt…because I honestly don’t see myself getting married to a man within the next 3 years and I want to be a parent soon. I am seriously having “iwannabeamommy” syndrome going on right now. And she would be the perfect mother…I know it. She is soo good with kids and she is so “motherly”…she loves to take care of others, and cook, and clean, and do laundry, and take them to doctor appointments. And we would adopt a little girl, with honey brown skin and thick black hair. We would adopt her from Asia or the Middle East and save her from being a sex slave, or seen as the property of a man, or a life of poverty. The little girl would grow up to be smart, and beautiful, and strong, and independent because both of her mothers are …and we would remind her every day about her worth as a woman and most importantly that she is loved. And now I’m going to stop before I make myself cry…
And again, I am not a lesbian but I know that I would rather have a family with a woman who loves and accepts me for me. She makes me feel more beautiful than any man ever could because she is not telling me bullshit just to get in my pants (and NO we don’t get down like that). And she accepts the fact that I am ADD and OCD and slightly paranoid. She accepts and actually encourages my delusional love for Jeremy Lin (who I would marry and have all 10 of his children) and she doesn’t leave the toilet seat up when she uses the bathroom and she doesn’t fart in her sleep or try to molest me in bed and I know she isn’t going to wake up one morning and tell me I am fat and ugly. And most importantly she has been by my side longer than ANY man ever has. So we have decided that we are getting the hell out of this state and starting over elsewhere. And hopefully along the way we will both fall in love and marry amazing men…but if not, we still have each other. And if I feel this way about a woman I am not even romantically in love with, then I can’t even imagine what people are feeling, who are.
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.