Defending George Zimmerman with Facts

Opposingviews ^ | 5 April, 2012 | LegalBoom Not For Profit INC

[hoosiermama]

Her name is Dee Dee. ABC said they confirmed the call. Gave exact time it began and ended. Would like to see that time in direct comparison of GZ/dispatcher call.

Have always thought it peculiar that people would think GZ would use a racial slur to someone he could not see and had no idea what color THEIR skin is.

My take on the “Fn COLD” dispatcher’s comment was that the dispatcher was telling him to get out of the cold. ‘You don’t have to
DO THAT=get out in the weather.

[Scoutmaster]

But there are a number of things Zimmerman could have done to precipitate the fight, constituting assault, and therefore preventing him from claiming self defense.

Not true. Instead of talking generally, let's go to the actual Florida law. Chapter 776 (Justifiable Use of Force) of Florida Statutes existed before passage of the Florida Stand Your Ground Act in 2005, but it's where the provisions of the SYGA were incorporated into existing Florida law.

The Stand Your Ground Act contemplated limited situations under which an aggressor could still use deadly force or force likely to result in great bodily harm, and be justified in doing so. Here's the link to the entire Chapter 776, but concentrate on Florida Statutes 776.041(2).

Even under common law, it's not accurate to say as a generalization that a party who commits assault can never claim self-defense. For example, under a standard application of common law, the assailant can stop the fight, achieve clear physical separation, and state clearly an intent to cease fighting. The assailant still has liability for the initial assault. However, if the other party continues fighting at that point, then the original assailant can practice and claim self-defense from that point forward.

Those elements are incorporated by statute in Florida Statutes 776.041(2)(b) - but allow the use of deadly force without retreat, which often is not permitted at common law without retreat.

[Sherman Logan]

Let assume, for purposes of discussion, that George pulled his gun on Trayvon without physical provocation.

If so, this constituted assault with a deadly weapon, and Trayvon would have been fully justified in defending himself with physical force. If he'd had a gun, he would have been justified in shooting his assailant. Since he didn't, he was fully justified in attending himself the best he could.

the assailant can stop the fight, achieve clear physical separation, and state clearly an intent to cease fighting.

Fairly obviously this point is not reached until the victim of assault gets control of the weapon.

I have no idea whatsoever if that is what happened, but it is certainly possible and does not conflict with any of the known facts, AFAIK.

[Scoutmaster]

I was responding to your statement in Post 10 that someone who commits assault cannot claim self-defense. That's not true under Florida statutory law (Florida Statutes 776.041(2)) or under common law, as I pointed out above. With all respect, the assumed set of facts don't have anything to do with the fact that a person can commit assault and then claim self-defense.

Fairly obviously this point is not reached until the victim of assault gets control of the weapon.

Umm. No. First, both parties could lost control of the weapon (it could drop from a bridge into the water below). Second, the original assailant could pull the trigger several times, with no shots fired, then holster the weapon and fight for several minutes before announcing he was giving up, and physically separating, and turning away. At that point, he's still liable for the original assault, but attacking him can be deemed another assault under the law. Or - he can even eject the magazine, announce that he has ceased fighting, physical separated, walk a mile away, and turn himself in at the police station. He's still liable for his assault. However, if you get into your car, drive, find him at the station, and strike him an iron pipe from behind, you can be liable for another assault. At some point, there's a separation of space and time such that one assault stops and a new one occurs. Get it?

I can make up these parades of horribles all day long, but let's get back to my original point. I was simply pointing out that, as a matter of law, your statement that someone who commits an assault cannot claim self-defense. At common law, there are facts under which an assailant can claim self-defense against what is deemed at law to be a subsequent, additional assault. And by some statutes - in Florida, notably, Florida Statutes 776.041 under the Stand Your Ground Act of 1995 - the person who is the initial assailant can use deadly force or force likely to cause great bodily harm against the party the assailant initially assaulted under certain circumstances.

I don't have to speculate about Zimmerman pulling a gun. I'm just correcting an unintentional misstatement of the law.

[Sherman Logan]

You are quite correct. There are exceptional circumstances under which a perpetrator of an assault can claim self-defense, though he would presumably be liable for the original assault. There is at present no evidence I have seen that would indicate that was the case here.

However, when a lethal weapon is present and the two parties are struggling for possession of it, I believe it is perfectly obvious that each party has excellent reason to believe he will suffer death or great bodily harm if the other party gets control of it. The presence of a gun changes the dynamics of the situation.

I believe Zimmerman’s own testimony shows this. He says he had to shoot because he was afraid Trayvon would get hold of the gun. Had Trayvon been the survivor he would no doubt say he was trying to get control of a gun used in an assault upon him when it went off, killing his assailant.

IOW, if a gun is in play, neither party will, accurately, believe he can safely back away unless he has control of the weapon.

[Houmatt]

I do not believe a single word Trayvon's GF says. Not. One. Word.

You don't think she would say anything at all to make Trayvon into the innocent bystander the lamestream media has been portraying him as?

Unfortunately for her, the evidence doesn't support her lies.

[egfowler3]

About that conversation that was supposed to be going on between Trayvon and his GF. It was supposed to be going on with Trayvon using a bluetooth headset

There are several rules and observations one needs to be aware of regarding the presence of a bluetooth headset. As a routine user of such a device I can safely state the following:

1. The most basic BT device has a range of 10m (roughly 30ft). So, unless it is turned off or out of range, it continues to function.
2. The phone the BT headset is connected to does not have to be open if it is one of the clamshell design phones. So, you can carry your phone in a pocket and (in some cases) initiate a call, hold a conversation and then end the conversation without touching the phone.
3. If something should happen to cause the connection to break between your BT and phone, the phone remains on and connected to the party you are conversing with.
4. Since your phone can be out of sight, you can look a bit crazy talking to yourself. I imagine many of you have already come across someone with a headset you didn't see until you were up close and thought that person was acting a bit strange until then.

Which brings us to some discrepancies about the conversation Dee Dee says Trayvon and she were engaged in up to the moment Trayvon and GZ tangle.

If he is having a conversation with DD (as reported by DD) up to the moment the "scuffle" begins how come GZ did not hear it going on prior to the "scuffle"? Anyone who has used a cellphone headset, BT or not, knows you cannot whisper into the headset when outdoors. So you cannot be sneaky and use one.

What happened to this conversation? DD, I'm being followed by some guy. He looks white and kinda tubby. He's driving a pickup, license number ____. Yadda, yadda, yadda while facing the guy following him so that guy knows Trayvon is talking to someone and providing info about his follower.

I keep hearing questions about why he turned on GZ. Has anyone thought about what happens to a kid's head when his mom and dad are getting/have gotten a divorce and that kid is around one of them and that parent's new "significant other"? And dad has gone out with his girlfriend and he has to babysit for them. And kid wants to be with his own girlfriend for his own face time. And kid was suspended for a week from school and sent to be with his dad. Wanna bet that 17-year-old boy is getting hot? And then some whitey starts following him around, its starting to rain, and... ...what do you think is going to happen next?

I think she either heard everything that happened that night, because the phone was still on and sending every sound it picked up all around Trayvon to her phone until she hung up, or her conversation with Trayvon never took place. Those call records they show only indicated when the calls were received, not when they ended. For all we know they might have had a fight during the earlier call listed so he called her back and she hung up on him. On top of the stuff I listed earlier he could have been angry about that as well.

Like Houmatt, I cannot trust a thing she says about what happened that night.

[Aunt Polgara]

Like Houmatt, I cannot trust a thing she says about what happened that night.

Yes, I agree with you that we probably don't have the whole story, but what she did say seems to me to support that Trayvon started the fight. If Z was planning on shooting Trayvon, why would he get so close? And since he knew the cops were coming, why would he initiate a brawl? Doesn't make sense to me. What makes more sense is that Trayvon felt dissed about being challenged for being there and sucker punched Z when Z went for his phone. Trayvon may have thought Z was going for a weapon. Tragic case all around.

Since we know that the media is fanning the flames, it's entirely possible that the police have a more complete statement from the GF than what the media showed, especially since the Martin attorney was present for the interview.

[Scoutmaster]

IOW, if a gun is in play, neither party will, accurately, believe he can safely back away unless he has control of the weapon.

For those of you just tuning in, Mr. Logan and I are discussing the law in general and are not specifically discussing the Martin/Zimmerman case or facts, so I'd ask that you please don't think that either of us is assuming facts with respect to that case at this point.

SL: So, I'd agree with you if no outlier facts such as those I mentioned above are present, and two people are on the ground, in bodily contact, struggling with each other. You simply don't give up control of the weapon to the other party at that point because you don't know the other party's intent once they gain control of the weapon.

However, you come to the next point. What does the party who gets control of the weapon do with it once he/she gains control? Assuming no accidental discharge, you then have to look at the facts surrounding the decision to fire. Has the other party already done enough damage and evidenced willingness to continue doing enough additional damage that you're justified in firing immediately? Is the other party still continuing to batter you after you have possession of the gun (and is the other party justified in doing so precisely because you have possession of the gun and the other party doesn't know what you're going to do with the gun)? Have the facts leading to the altercation suggested a need to announce a 'stop, or I'll fire'? I think I could posit facts (as to how the altercation started, as to what went on in the altercation, and what was still going on) where the answer would be a fairly clear 'yes' and facts where the answer would be a 'h*ll, no.'

It's always factual. But back to the original point: In Florida, by statute and likely by common law, one who commits an assault can, in some situations, still claim self-defense, even up to the point of the use of deadly force. By common law, there are facts under which the initial assailant in a fight can claim the right of self-defense. A gun changes dynamics, but doesn't always eliminate the ability to claim self-defense at common law or by statute, even if the person who holds gun did commit an assault. And it's always the facts. What makes something reasonable or unreasonable, right or wrong, justified or unjustified, depends on the facts and a reasonable interpretation of them under the circumstances - not pontificating about them at leisure, but under the circumstances.

All of that is theoretical and is not based on the Martin/Zimmerman case.

[Sherman Logan]

I agree.

BTW, I’m not an attorney and I’ve never played one on TV. So my understanding of law and particularly FL law is not that of an expert. I appreciate your careful instruction.

[Sherman Logan]

If the records are anything like those for my phone, they show when the call started and how long it lasted. For billing purposes. So it ain’t hard to come up with a finish time.

[egfowler3]

Actually I was basing my reply on the ABC interview article linked to in your reply #31. There is a photo provided at that site of the girlfriend's supposed call record showing calls at 7:04 & 7:12, both incoming and neither showing the length of the calls.

I once worked for Sprint Telecom in their customer records and billing division and you are right, the phone companies do have the start, stop, length and more phone call information, but that is not what ABC shows in their photo. ABC implies that there was an ongoing continuous conversation, but the photo only indicates when the calls started and indicates nothing else whatsoever.

So, if the Florida law enforcement folk provide that information to the public, I will then believe the time line. However, I have no reason to trust media that use false or misleading information to boost their ratings.

[Sherman Logan]

Thanks.

All the info is obviously available to develop an accurate timeline.

I doubt any in the MSM will be interested in doing so because it will likely weaken the case against Z.

Happily, we don’t need to depend on the MSM anymore and bloggers will put it together.

[houeto]

Just mentioning it because I don’t want fellow FReepers to automatically assume something a 911 operator says is “just a suggestion”. So people should check their local jurisdictions.

You are correct. My aunt was dispatcher for the Pasadena, Texas Police Dept. for more than 30 years. She carried her badge in her purse instead of on her chest but she most certainly was a LEO.

[egfowler3]

I'm sorry. I was trying to point out that the claim made by Trayvon's GF of an ongoing conversation vs the statements by GZ that he was suddenly attacked without any warning do not fit. I think the GF heard exactly what happened and does not want the truth to be told, or someone is making her withhold the truth. Assuming, of course, there was a conversation at that time.

Of course there could have been an argument going on between TM and his GF and she could have been hung up on just prior to the "brawl".

I can see it now, Trayvon walking along with his cell phone in hand connected to him by a headset of some sort while talking to his girlfriend as he approaches Zimmerman and begins to argue. Now, I am in my 60's and a bit clumsy to boot. I've walked into my share of doors, walls, poles and such while talking on the phone. Yes, my headset, both wired and unwired, popped out of my ear on many of those occasions. And I quickly learned the phone was still on and I could put the headset back in my ear, apologize to the person on the other end and keep talking. So, as someone a week or so ago remarked, how did that headset (and attached phone) get turned off when the brawl/fight/beating started?????

My thoughts are that the phone was either on and she heard more than is being provided or it was off and she heard nothing whatsoever.

[Scoutmaster]

I’m not an attorney and I’ve never played one on TV.

It's something I regret daily and apologize for almost daily.

You learn some law in law school, but at the larger law schools a lot of what they teach you is a system of thinking (that drives you crazy for the rest of your life and annoys everyone around you).

No matter what the law is, you can always find facts that make the law irrelevant. And no matter what the facts are, you need to know what the law is.

Then, the annoying part is that the words used in the law almost always have specific meanings, or require specific tests, given them through multiple appellate court opinions, that aren't the general meanings used in common conversation or found in normal dictionaries.

It's enough to drive you crazy (although for me, that would have been a short trip, even on foot).