More on the coming riots in Florida

by wfgodbold

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.

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.


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