Editor’s note: Carolyn Edgar is a lawyer and writer in New York City. She writes about social issues, parenting and relationships on her blog, Carolyn Edgar. You can follow her on Twitter @carolynedgar.
By Carolyn Edgar, Special to CNN
(CNN) – Imagine the following scenario:
You are a 17-year-old boy in Sanford, Florida. You are visiting your father and his fiancée at your soon-to-be stepmother’s home in a gated community. You decide to make a late-night candy run to your local 7-Eleven. It’s nighttime and drizzling, so you are wearing a hooded sweatshirt. At the store, you buy a package of Skittles and an Arizona Iced Tea, then head back home.
As you are walking home, you notice a man in an SUV following you. The man gets out of the car. He’s a big guy who outweighs you by 100 pounds. He doesn’t identify himself as a police officer – in fact, you don’t know who he is. What should you do next?
According to Florida’s justifiable use of force statute, you have the right to defend yourself. Section 776.012, in relevant part:
“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.”
George Zimmerman, the neighborhood watch captain who gunned down 17-year-old Trayvon Martin in his family’s gated community in Sanford, is relying on Florida’s self-defense statute to escape prosecution. Because Florida’s self-defense law affords immunity from prosecution for those who use justifiable force, Sanford Police Department have determined they have no basis to prosecute Zimmerman.
However, as more facts come to light, it seems that Martin, not Zimmerman, was exercising his statutory right to defend himself against a reasonable apprehension of unlawful force.
Sanford Police Chief Bill Lee has characterized Martin as the aggressor, based on the police department’s investigation. In an interview published by the Miami Herald, Lee asked rhetorically, “If someone asks you, ‘Hey do you live here?’ is it OK for you to jump on them and beat the crap out of somebody?” Lee said. “It’s not.”
Actually, in Florida, it might be.
Under the same self-defense statute that Zimmerman is relying on to avoid prosecution, Trayvon Martin also had the right to defend himself against a perceived threat of danger. Section 776.013 provides:
“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.”
Trayvon Martin was a teenaged boy who was walking home from a convenience store. He was not engaged in an unlawful activity. He was in a place where he had a right to be – near the home of his father’s fiancée. George Zimmerman followed him, even after being told by the 911 dispatcher not to. Zimmerman left his vehicle holding a loaded gun and began pursuing Martin on foot. It is plausible to infer that Zimmerman, not Martin, initiated the attack. The tapes indicate that Zimmerman may have been the aggressor in initiating contact with Martin. Assuming the published reports are true, Martin, not Zimmerman, was exercising his lawful right to “stand his ground and meet force with force” by engaging in an altercation with Zimmerman.
By questioning why Martin didn’t simply stop and answer Zimmerman’s questions, and characterizing Martin as the aggressor, Sanford Police Department Chief Bill Lee Jr. appears to have assessed the Martin case using the standards that apply to law enforcement officers. This is wrong. Martin was under no legal duty to obey or to cooperate with Zimmerman in being questioned, because George Zimmerman is not a law enforcement officer.
Being the local neighborhood watch captain does not elevate him to that status. Nor was Zimmerman asked by any law enforcement officer to assist in detaining Martin – in fact, he was specifically told not to follow Martin. Zimmerman is entitled to none of the presumptions available to law enforcement officers under Florida law. The presumptions of acting in good faith that are afforded to law enforcement officers do not apply to Zimmerman.
If Zimmerman provoked the altercation with Martin, he is not entitled to claim self-defense. Under Section 776.041, use of force is not justifiable under the statute to a person who initially provokes the use of force against himself or herself, unless:
“(a) such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.”
Neither exception applies to Zimmerman. Martin was armed only with a bag of Skittles and a can of Arizona Iced Tea. Zimmerman had a 9mm handgun. The 911 tapes released by the Sanford Police Department feature the chilling sounds of Martin screaming for help in the background – screams that are silenced by a gunshot. Martin’s screams and cries for help indicate that, he was not a threat to Zimmerman when Zimmerman pulled the trigger.
Sanford Police Department officials have said no evidence refutes Zimmerman’s claim that he acted in self-defense, but the 911 tapes released by the Sanford Police Department suggest otherwise. Had Zimmerman withdrawn and waited for the police to handle the situation, as he was advised to do by the 911 dispatcher, Martin would be alive today.
Under Section 776.032 of the Florida Statutes, a person who uses force as permitted by law is immune from criminal prosecution as well as civil action. In reviewing this case to determine whether or not Zimmerman is in fact immune from prosecution, the Florida Attorney General must determine whether or not Zimmerman did in fact use force as permitted by law under Sections 776.012, 776.013, and 776.031.
The attorney general should consider the strong possibility that Zimmerman provoked the attack and that Martin was acting in self-defense – in which case, Zimmerman is not entitled to immunity and may be prosecuted for the death of Trayvon Martin.
The state of Florida owes the Martin family at least an investigation into this question.
The opinions expressed in this commentary are solely those of Carolyn Edgar.
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