Posted on 06/23/2012 1:22:21 AM PDT by 2ndDivisionVet
Sigh. Let’s try one more time. Please be advised that anytime more of this “SYG doesn’t apply” pops up I will simply reference this post as a hotlink - over and over displaying your ignorance of this useful and powerful law.
First, SYG is an expansion of the castle doctrine giving you the right to defend yourself ANYWHERE you are lawfully present in Florida. You may meet force with force and if threatened with death or serious bodily harm you may use deadly force.
IF YOU REASONABLY ASSERT THAT YOU WERE LAWFULLY IN A PLACE IN FLORIDA AND WERE ATTACKED AND FEARED GREAT BODILY HARM OR DEATH THEN SYG APPLIES. PERIOD.
This applies in your living room or the parking lot of Target. Previously, outside of your home, place of business or car you had a duty to retreat, to prove that you tried to get away from the threat.
Secondly, the law provides for IMMUNITY from arrest, prosecution AND civil liability if you establish a valid self defense claim.
As in the GZ case, once GZ claimed self defense he was IMMUNE from even arrest and the law was followed. Immunity from ARREST though can be overridden if the LEOs find “probable cause” that the force used or other circumstances made the self defendant acting unlawfully. Then he can be arrested.
Thirdly, claiming self defense, you have the right to a hearing to dismiss all charges, pre-trial, before a judge who acts as BOTH the trier of fact and law. Many cases are dismissed at this point with the judge finding that the self-defense claim was valid. No trial, although the hearing on dismissal can be like a mini-trial with deposition, physical, witness statement evidence, etc. coming in complete with live testimony.
Fourthly, if a valid claim of self defense is established you are immune from civil prosecution and if the charges are dismissed OR a lawsuit is brought before the charges are resolved you can recover attorney’s fees and costs from whoever sues you (usually the perp or his family).
In summary, if you are lawfully in a place in Florida and are forced to defend yourself then SYG applies. The immunities kick in, the LEOs better carefully preserve evidence and think long and hard before arresting you, you’ll have a chance to dismiss all charges without a jury crap shoot and reduce your defense expenses.
In addition, your burden of proof at the dismissal hearing is only 50%+1 that you were reasonably in fear of death or serious bodily injury making a complete dismissal of charges easier.
Even if the motion for dismissal fails it can be raised at trial itself while the prosecution has to prove beyond a reasonable doubt that you were not reasonably in fear of death or serious bodily injury.
BTW, if you are protecting another being attacked the same SYG provisions apply - you need not be imminently threatened but you can step into the shoes of the person being unlawfully attacked.
Lastly, please do not question anything I have said here without having reviewed FS 776 in its entirety and studied Peterson vs Florida and the Dennis FL S.Ct. decision affirming Peterson. Thanks.
SYG applies in the GZ case. /Rant
If Zimmerman’s defense itself is bringing up SYG, I haven’t heard it. Their bringing it up would certainly put to rest any idea that it didn’t apply, and failure to bring it up would raise the question why.
“Remember people, never talk to the police. Even if you’re a witness don’t do it.”
The “never” part is troubling and I am sure you really don’t mean that.
You are the only witness to an armed robbery and the clerk killed, the criminal runs out the door and you see a police car coming around the corner and you don’t flag down the police and talk to them?
You are the only witness to a rape and the criminal runs down an alley and you see a passing police car and you don’t flag down the police and talk to them?
You are the only witness to a child being abducted and as the classic white step-van drives away, you see a passing police car and you don’t flag down the police and talk to them?
You are the only witness to a guy on the ground getting beaten to death as the criminal walks away you see a passing police car and you don’t flag down the police and talk to them?
I am sure you didn’t mean to say “never.” I am sure you are more interested in catching the rapist, murderer, child abductor by flagging down a passing police car than remaining anon.
Many times time is of the essence to get the search/pursuit going.
I was using the term SYG in its non-technical sense, which I believe is also generally used by the media, to refer to a claim of self-defense allowed by the new law which would have been disallowed under the old law. The removal of the “duty to retreat.” The public/media perception of SYG in this non-technical sense appears to be something along the lines of a movie western confrontation in the streets of Dodge City. Two guys trying to face the other person down.
Since, if his story is true, and nobody seems to be disputing this part, Z was on his back being attacked when he fired, he had no opportunity to retreat and so no duty to do so. Prior to his being attacked he had no particular reason to believe he would need to retreat and so this duty would not apply in that case either. Thus his claim to self-defense does not rest on “standing his ground” rather than retreating and would have been allowed under applicable law before SYG passed.
You are, of course, quite correct that many other aspects of the SYG law are applicable, notably the immunity from arrest and prosecution.
Personally, I dislike this aspect of the law. At present it appears that the determination of whether it is applicable and the killer cannot be arrested is an administrative decision by local DA. Which means there is no ruling filed by a court that the killing was justified under the law, just a refusal to arrest or prosecute. This was, of course, a very considerable reason why the case originally picked up attention, as it looked like collusion by the cops and DA in the case.
If I understand correctly, without a judicial ruling that SYG applies, some future DA can change his mind about whether to prosecute and the killer has such a possibility hanging over him for the rest of his life, since there is no statute of limitations on murder. Over time the evidence becomes less available and ability to prove what happens deteriorates. I am also unclear how the immunity from civil lawsuit can be determined without a judicial ruling that SYG is applicable.
I would greatly prefer that all killings where a claim of self-defense is made go before a judge, as the law presently provides for if an attempt at prosecution is made, for a ruling on whether SYG applies. Then it is over and done with, and anybody who wants to dispute it can argue with the court, which is less susceptible to political pressure than the cops or the DA. The law should allow for reasonable legal costs to be reimbursed if the SYG immunity from prosecution is ruled to apply.
The present law also really does allow for possible improper collusion between cops/DA and the killer. While this was not apparently the case here, it certainly could be in another case. Think of a black DA refusing to prosecute, for political reasons, the black shooter of a Tea Party type. I’m uncomfortable with giving this power to the cops or DA rather than to a judge. (Not that judges are perfect, just less exposed to political pressure.)
JMO
http://www.floridadefense.com/
This law firm, Bauer, Crider and Parry are either unethical or incompetent.
They couldn’t even bother to get the facts of the case correct in a piece written ostensibly to gain business. Who are they trying to kid?
The decision to take a motion to dismiss is a defense option. The motion can be taken anytime prior to the trial itself.
However as a practical matter, the presiding judge will hold at least one pre-trial status hearing to decide when and how long the trial will take.
Needless to say (so why am I saying it ;-), the judge would not appreciate not being apprised of your intention to move for dismissal the day before trial. In that case, he’d probably just incorporate the motion into the trial itself and likely be pissed at the defense team and defendant. Not a good approach.
Before taking such a motion, because it qualifies as a mini-trial, the defense will want to have any and all depositions, investigations, exhibits, reports, etc. all lined up before they bring the motion.
They’ll also have to decide who to call as witnesses and whether GZ will testify.
An interesting aspect of this motion would be that, as I understand it, pre-trial, you can only depose the arresting officers (on the report) but here only the state attorney is the arresting officer.
Whether the defense can depose say Martin’s girlfriend, I am unsure.
Pinging my expert Cboldt to hammer my SYG rant and this post - he’s far more current on FL law than I. ;-)
If we had a real press ( instead of a steno pool for D’rats )we would know that this is nothing more than a political accusation based on appeasing the so-called black community and scoring points for Ali Blabba.
It wasn’t soda, it was Arizona Watermelon Juice, the mixer for Purple Drank/Lean/DXM.
In other words, I don't believe Zimmerman has to take the stand in order to present evidence in his defense. He may want to tkae the stand to rebut evidence that surfaces during the course of the hearing, and should certainly be prepared to take the stand.
O'Mara has the right to depose DeeDee, under Florida's open book discovery rules. The state has named DeeDee as a witness.
O'Mara will also want to depose eyewitnesses and the police investigators who interviewed Zimmerman. He may call them to the stand as part of his defense. In fact, that's part of what makes this prosecution "odd," that the police investigation is more in line with the defense than it is with the prosecution. In fact, I don't see the police investigators as helpful to the prosecution, at all.
The full tox screen is still sealed. However the boy did have damage to his liver.
The full tox screen is still sealed. However the boy did have damage to his liver.
Zimmerman is innocent.
Your thoughtful reply is much appreciated.
I understand your “generic/media” usage of SYG but since there’s a commission evaluating changes to the law I believe its critical to understand the law itself.
You do raise some interesting questions in cases of no arrest/prosecution. Is the guy forever at risk of prosecution?
Still, even without the SYG law, even if a defendant is arrested, moving to trial is within the discretion of the state attorney. If he is corrupt, any case can be ignored or charges dismissed.
It may be that the SYG Commission should consider your views on the unpredictability of situations involving failure to prosecute and perhaps allow basically a declaratory judgment action by the defendant or anyone to resolve the need for a resolution to the case.
I definitely agree that if someone is shot or killed that some form of hearing should be required to resolve whether the self defense claim was valid.
Please note, for ANY concealed carry types, if you are forced to draw your weapon you are subject to arrest for aggravated assault and even though no shot is fired you can face 3 years in state prison without opportunity for parole or time off for good behavior for every count. Mandatory sentencing.
You might want to stand your ground for the SYG law even if it needs improvement its better than things were before its passage.
Stately McDaniel Manor Has the audio and transcript for the Dee Dee interview with Bernie De La Rionda, which the arresting affidavit was based on. It's actually quite funny when you get past being horrified that this is happening in Florida.
You are most welcome. I appreciate your thoughtful reply also.
When I’ve brought up such concerns in the past I’ve been accused of being anti-gun, pro-criminal, etc.
I believe that anytime a human being is killed, at minimum we should show sufficient respect for a human life as to hold a legal hearing to determine what happened, not leaving it up to some guy sitting in an office making a decision whether to prosecute.
Under common law, if I understand correctly, a coroner’s inquest was held for every unusual or suspicious death, which produced a report as to the facts of the case but without criminal law implications.
Such inquests have largely disappeared in America. I think something similar should be revived.
I quite agree the SYG is probably an improvement on the previous situation, but that doesn’t mean it’s perfect.
His wife Shellie was asked about the paypal account, she said she didn't know the amount that day but she said who did. She was charged with perjury.
My point, finally, is it won't matter in many quarters if he ever takes the stand, makes an infomercial or has video tape of the event, they have made up their minds.
Personally, I'd love to see DeeDee on the stand, as well as TrayDad and Brandy. TrayStepMom, Alicia, who TM apparently lived with most of his life has only spoken once or twice. She is invisible now. TrayMom has the spot-light.
/Rant.. you will now be returned to your reqularly scheduled sanity....I'm getting more coffee.
Use your own discretion but I will not take any chances of loosing my freedom.
Anon is just as well from a payphone within minutes, just don't identify
yourself unless you plan on hiring a lawyer.
Don't you ever wonder why witnesses Lawyer up?
Talk to a smart Lawyer and they will explain why.
"Stand you ground" no longer applies after your assailant has made physical contact.
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