When will the racism stop?

I just got an email regarding an “incident” involving students at my university (though apparently not at the law school):

About 2:30 p.m. today, May 8, an incident involving three UALR students occurred at the intersection of Anna and Lucie Streets, two blocks east of Fair Park Boulevard.  The students were approached and robbed by a black male armed with a handgun, wearing a dark gray hoodie, medium build, about 5’8.”

The suspect took the victims’ property and fled the scene on a motorcycle. If you have any information regarding the incident, call the Little Rock Police Department at 371-4660.

[Emphasis added]

Have we learned nothing from the Martin-Zimmerman incident at all?

Just cause a black guy is wearing a hoodie, they go and assume he’s a criminal!

Oh, wait. Maybe it was the armed robbery.

We may never know!

The Martin-Zimmerman case proves we need to reinstate the assault weapons ban!

Wait, what?

Nice to see Jesse Jackson is still crazy.

OTOH, if someone being shot one time is enough to justify an AWB, that gives us a nice idea of what the anti-gunners consider is reasonable.

One round is too many!

What caliber for memes?

Tam pointed out this morning that the “911 operators ordered Zimmerman to stop following Martin!” meme won’t die.

Florida special prosecutor Angela Corey’s probable cause affidavit (for Zimmerman’s arrest) isn’t going to do much to kill it:

When the police dispatcher realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that and that the responding officer would meet him. Zimmerman disregarded the police dispatcher…

According to the actual 911 call, the dispatcher said “We don’t need you to do that.”

Now, I don’t know how the whole thing went down; I wasn’t there, and I haven’t seen the evidence. But I would think a prosecutor who bends the truth past the breaking point in her affidavit for probably cause might do so at other points in the trial, too.

I don’t see how an honest person could characterize the dispatcher’s statement as an instruction.

What is second degree murder in Florida, anyway?*

Well, under F.S.A. § 782.04 (2), second degree murder is:

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. Ann. § 782.04 (West).

In some jurisdictions, this is know as the depraved-heart murder.

Second degree murder in Florida has three elements that have to be met; it’s an unlawful killing that:

is characterized by “an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.

State v. Montgomery, 39 So. 3d 252, 255-56 (Fla. 2010).

This makes it look like Angela Corey is putting all her second degree murder eggs in the racism basket; if she can’t prove racism, I don’t know how she’s going to meet that second element.

Florida also only has one manslaughter statute, F.S.A. § 782.07 (1):

(1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. Ann. § 782.07 (West).

Manslaughter is a lesser-included offense to second degree murder. State v. Montgomery, 39 So. 3d 252, 259 (Fla. 2010). This is more broad; if someone dies as a result of another’s act, procurement, or culpable negligence, and it’s not justified or excusable, it’s manslaughter. Zimmerman acted, Martin died as a result of that act; if Zimmerman wasn’t justified under a self-defense doctrine, he’s going to be guilty of manslaughter.

Basically, Corey’s decision to go for second degree murder lets her fall back on manslaughter if she can’t meet the elements required for the more serious charge. It also gives the jury the option to convict Zimmerman of the lesser charge if they decide that is more appropriate.

Of course, Corey has to meet the “beyond a reasonable doubt” standard when she attempts to prove either second degree murder or manslaughter; Zimmerman merely has to prove his affirmative defense by a “preponderance of the evidence” standard.

If Zimmerman can show that it’s more likely than not he acted in self-defense, then it doesn’t matter what Corey can prove. If he acted in self-defense, then the killing was justified, and Zimmerman is immune from criminal and civil actions.

*This started out as a response to one of Weerd’s comments on the charging of Zimmerman, and quickly got out of hand.

More on the coming riots in Florida

The Occupy Wall Street hooligans have already proto-rioted in NYC; Politico and Al Sharpton are agitating for an emotional response (as are the many crazies on twitter); and the New Black Panther Party has posted a $10,000 reward  for the “capture” of George Zimmerman.

Once again, I’m only a lowly first-year law student, and only have had 2/3 of a semester of criminal law, so if you use any of this work, on your own head be it.

A ten thousand dollar reward for the “capture” of Zimmerman. Under Florida law, kidnapping is:

(1)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

1. Hold for ransom or reward or as a shield or hostage.

2. Commit or facilitate commission of any felony.

3. Inflict bodily harm upon or to terrorize the victim or another person.

4. Interfere with the performance of any governmental or political function.

Fla. Stat. Ann. § 787.01 (West).

I think it’s pretty clear that if someone were to “capture” Zimmerman for the NBPP, they would be guilty of kidnapping.

After my overview of the Florida “stand your ground” laws the other day, I did some more thinking about possible ways Zimmerman could have provoked Martin and lost the protection of the stand your ground provision of the law; all I could come up with was assault, battery, and maybe stalking.

Stalking is actually right out;  a key element in the offense is that the conduct was repeated; if this is the only time Zimmerman ever followed Martin, then he can’t be guilty of stalking him. Fla. Stat. Ann. § 784.048 (West).

Assault is more murky:

An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Fla. Stat. Ann. § 784.011 (West).

While regular assault is merely a misdemeanor, aggravated assault (F.S.A. § 784.021) is assault with a deadly weapon without intent to kill (or with the intent to commit a felony), and is a third degree felony. Zimmerman would have had to do more than merely follow Martin for his conduct to meet the standard required for an assault. For aggravated assault, Zimmerman would have had to commit the assault with his weapon drawn (or visible); if it was concealed and not used in the assault, it wouldn’t be aggravated assault. Owens v. State, 475 So.2d 1238, 1239 (Fla. 1985). Owens distinguished between an offense committed while carrying a weapon and an offense committed while using a weapon, and held that mere carrying of a weapon was not sufficient.

Battery might work; its elements are relatively simple:

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.

Fla. Stat. Ann. § 784.03 (West).

The touching element of battery would be satisfied by any physical contact Zimmerman had with Martin, no matter how slight. Johnson v. U.S., 130 S. Ct. 1265, 1269-70 (2010). If Zimmerman so much as grabbed Martin’s arm, or even tapped him on the shoulder, that would constitute battery.

Zimmerman could only have committed aggravated battery by using a deadly weapon in the commission of a battery (or by attempting to cause great bodily harm, permanent disability, or permanent disfigurement) (F.S.A. § 784.045).

As we saw the other day in F.S.A. § 776.013 (2)(c), the presumption that a person had a reasonable fear of death or great bodily harm to himself does not apply when the person who uses the defensive force is engaged in an unlawful activity. If Zimmerman assaulted or battered Martin, then he no longer has that presumption.

However, as I understand it, that does not mean he can’t claim self-defense as a defense to any prosecution; it merely means that he is not presumed to have had a reasonable fear of death or great bodily harm to himself.

If Zimmerman tapped Martin on the shoulder to ask what he was doing, and so battered him and gave up the presumption, and if Zimmerman could convince a jury his fear was reasonable, his killing of Martin still would have been justified.

Given recent witness statements about Zimmerman lying on the ground and yelling for help, with Martin on top of him, beating him up, I think Zimmerman’s lawyer’s statements may be right: this isn’t going to have anything to do with the “stand your ground” part of the law at all; it’s going to be a straight up self-defense case.

And since the race hustlers are involved, I’m afraid we’re going to see riots if Zimmerman’s defense prevails (which, given the witness reports, seems more likely now).

Riots we wouldn’t see if a black guy had killed a white teenager in self-defense.

Trayvon Martin, George Zimmerman, and Florida’s “Stand Your Ground” law

By now, I’m sure you’ve heard of the shooting in Florida; Zimmerman, patrolling the neighborhood as part of the neighborhood watch, called 911 and reported a suspicious person. He followed, and eventually got into a scuffle with and shot Trayvon Martin, a 17 year old. The anti-gunners have made great hay about how this proves the folly of Florida’s “stand your ground” laws, and how those laws should be called “shoot first, ask questions later” laws instead, and how as written, they let people get away with murder.

Robb has some comments on the incident from an actual lawyer, but that doesn’t mean I can’t hold forth with my limited knowledge.

That said, I don’t know all the facts; I’m only going to look at the law itself, and see if it legalizes murder, as the anti-gunners claim.

The so-called “Stand Your Ground” provision is in Florida Statues § 776.013(3), but to get the context, we’ll start with the overarching provisions first and see what they cover, beginning with § 776.032:

(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).

Fla. Stat. Ann. § 776.032 (West)

Well, that’s as clear as mud! We need to look at §§ 776.012, 776.013, and 776.031 to see when persons are permitted the use of force.

From § 776.013, we see that:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, 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; or

(2) Under those circumstances permitted pursuant to s. 776.013.

Fla. Stat. Ann. § 776.012 (West)

Okay, that clears things up a bit; the first situation in which a person is immune from criminal and civil proceedings for the use of force is when they reasonably believes that the force is necessary to prevent death or great bodily harm to himself or others, or prevent the commission of a forcible felony.

Or under the circumstances detailed in § 776.013:

(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.

Fla. Stat. Ann. § 776.013 (West)

This section is quite a bit more detailed. It first sets out two situations in which a person is presumed to have a fear of imminent death or serious bodily harm (which, from § 776.012, remember, was one of the requirements for a person to be justified in using force): the first situation is when the person against whom the force is used is in the process of unlawfully entering a dwelling, residence, or vehicle, or was attempting to remove a person from such a place against that person’s will; the second situation is when the person using the force knew or had reason to believe that an unlawful and forcible entry, or unlawful and forcible act was occurring or had occurred.

Part (2) of this section details the various exceptions to this presumption; the key “stand your ground” subsection is in § 776.013 (3), which is bolded above. Note that the person standing his ground and using force must “reasonably believe” that meeting force with force is necessary to prevent death or serious injury to himself or others, or to prevent a forcible felony. He must also not have been engaged in an unlawful activity.

The final section mentioned in the statute that lists which uses of force are justifiable and immune from civil or criminal action is § 776.031, which reads:

A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Fla. Stat. Ann. § 776.031 (West)

Okay, so you can use force (but not deadly force) to prevent a person from trespassing on or interfering with the property of another member of your household, or of those to whom you owe a legal duty to protect; again, deadly force is only allowed in this case to prevent the immediate commission of a forcible felony (which are listed in § 776.08, and are “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.” Fla. Stat. Ann. § 776.08 (West)).

The final line, “A person does not have a duty to retreat if the person in in a place where he or she has a right to be,” is more problematic, especially in this statute. It seems almost superfluous, but when interpreting statutes, there’s no such thing as superfluous language; the legislature put it there for a reason, and so it must be considered. I can only think that it means that if someone has the right to be on a specific piece of property, but the person who has the duty to protect that property believes the first person is trespassing, the supposed trespasser has the right to defend himself agains the force used by the supposed defender. I think.

Back to the main part of the stand-your-ground controversy:

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.

This hinges, as most things in law do, on the “reasonableness” of the actor; generally, an actor’s reasonableness is a question of fact that the jury must decide. In this case, since that reasonableness is directly related to whether or not the actor is immune from prosecution, I think (and once again, while I am a law student (and a lowly first-year, at that), I am not a lawyer; I don’t even play one on TV) this would be determined by a judge; if the judge determines that no reasonable jury would find that the actor acted unreasonably, then the actor will likely be immune from prosecution (this is how a judge determines that a judgement a jury has handed down should be overturned).

It looks to me like Zimmerman’s immunity (or not) from prosecution will depend on two things: the reasonableness of his actions, and whether he started the altercation (if Zimmerman assaulted Martin, then he falls under one of the exceptions in § 776.013(2), since he (the person using defensive force) was engaged in an unlawful activity)).

Since the facts I’m familiar with regarding this case are only what the media have published, and the media are notoriously inaccurate, I’m not sure whether Zimmerman’s actions were protected by this statute or not; I do think, though, that it’s pretty clear that Florida’s “Stand Your Ground” law does not legalize murder, as the anti-gunners claim.

Isn’t law fun?