Posted on 03/26/2012 5:27:56 AM PDT by marktwain
To arrest someone for a crime, the police need probable cause to believe that he committed the crime. But what if it’s clear that the person committed the act (e.g., intentionally killed someone), but it seems likely that he has a good affirmative defense (e.g., self-defense)? My view is that probable cause should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed. But when I looked into this several years ago, I saw that the few courts that had discussed the matter were split.
Florida law, though, clearly resolves this: “A law enforcement agency … may not arrest [a] person for using force [in a self-defense situation] unless it determines that there is probable cause that the force that was used was unlawful.”
So in Florida, the police must have probable cause to believe that the defendant wasn’t acting in lawful self-defense in order to arrest the defendant. It’s not enough to say, “we have probable cause to believe that you killed the victim, so we’ll arrest you and then sort out later how strong your self-defense case is.”
I can’t speak with confidence to whether in the Martin/Zimmerman case the police indeed have such probable cause (which, as you may recall, is a not very clearly defined standard that is well below proof beyond a reasonable doubt, and probably somewhat below preponderance of the evidence).
That's actually wrong. I haven't read other responses to this yet. But if you instigated the crime, you are responsible for all consequences following the instigation. It is why if two thugs rob a convenience store and one of them is killed in the act, the other is also charged with the homicide, not the shooter.
Gun owners who carry have a very special responsibility when carrying. It may be unwritten, but you do have to avoid confrontation and nearly all costs. For the simple fact that you may be equipped with the force multiplier that can be construed as the motivation for the confrontation. It's dicey at best.
I do have a license and do carry. I was present and packing one time when a brawl broke out in a bar. There was a member of the group I was with involved. Others or our party tried to break it up. I immediately left and said a prayer that all would be ok. I didn't know who started it or what it was about. But stitches and an assault charge were far better than the risk of someone getting shot with the gun I had conealed. My best intentions would not have mattered in court had I gotten involved. Turns out, my "friend" who was drunk, commented on how slutty a girl was dressed while playing darts.
Do you know whether the area had signs posted that there was “neighborhood watch”? Wasn’t it reported to be a “gated community”?
That would be malice. Malice is not always needed for an action to still be illegal.
If that can’t be proven, there is really no case, based on what I am reading of eyewitness testimonies.
Not necessarily. The question of negligence would still be open. Is it reasonable to believe that your actions could result in injury or death?
Zimmerman believed that Martin was a criminal. Did he fail to consider that searching for said criminal COULD result in a confrontation?
Did he fail to consider he might have to draw the weapon he carried when/if confronted?
Did he fail to consider that drawing his weapon might result in death - be it the "criminal's", his, or a bystander/occupant of a nearby residence?
I think that will be the argument presented to the grand jury.
you are wrong.
example:
two kids are walking home from school and get into an argument, A punches B. B fights back, gets A on the ground and starts to choke A to death.
A does NOT have to let B choke him to death, just because he punched first. That’s absurd.
It's not so black and white as you have tried to make the case above. Threatening actions or words can be considered battery. If there is any proof that Trayvon could have reasonably been in a position to defend himself, and the confrontation was instigated by Zimmerman, than the aggressor of the confrontation has culpability, regardless of the outcome.
You stated earlier that it does not make any difference who starts a confrontation. You say it only matters who was defending themselves at the end of the fight. This is absolutely wrong. You cannot go into a bar, call a redneck's girlfriend a slut, punch the biker boyfriend in the nose and then start shooting when 4 behemoth bikers begin to tenderize you. That's manslaughter.
This case is complicated. I have gone both ways trying to sort it out. I can't find evidence (that is published) suggesting Zimmerman should be arrested. But he is the only living witness that could draw a complete picture.
That said, the whole Sharpton, Jackson, racial and now political aspects of the case are clouding the ability to have rational discussion about it. I do not see anything in the evidence published that suggests a hate crime.
But I am now leaning toward Zimmerman being a cop wanna be. Though I'm not sure that affects the case beyond a state of mind and likelihood that he may have instigated the confrontation.
So what you are saying is that if you are carrying a gun, you should be responsible for your behavior that a reasonable person would think could lead to a physical confrontation?
That actually makes sense.
However, if his claims that he was walking away when Tray attacked him from behind can not be countered, it might damage such a case. That’s the thing about a fight where only one participant survives. And without strong evidence to demonstrate otherwise, a jury really has no choice but to acquit.
And for good reason. If all Zim ever really did was ask the guy what he was doing in the neighborhood, well, a Cop can ask that as well, it is not expected that the guy will then attack you just for asking. I certainly would not, even if I WERE up to no good. I’d want to just leave and hop it was forgotten that I was ever there.
Zimmerman was on bottom in the fight according to Zimmerman, witnesses, and the evidence. He yelled for help, and I am sure was trying his hardest to escape. Thus when and if he felt his life was in danger he according to your own posting of the law had the right to defend his own life even if he started the fight.
Nope. A fist fight does not normally constitute the level of threat interpreted in the subject text. If TM had a brick, bat or 3 other assailants participating in the assault, a case for imminent danger of death or great bodily harm might pass muster. In that scenario, the instigator may be exonerated depending on extenuating circumstances.
>> “So what you are saying is that if you are carrying a gun, you should be responsible for your behavior that a reasonable person would think could lead to a physical confrontation?” <<
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That approach to this case would be a big step to jailing cops 80% of the times they fatally fire their weapon.
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So ... according to you .. I can be walking along minding my own business and some guy attacks me, not knowing that I have a gun...
According to you I couldn’t use it unless the guy had a brick, a bat, or 3 others with him?
When someone attacks you at night, you have to assume they have a weapon or intend to kill you, to assume otherwise would be a fatal mistake.
I'm 5' 10" and tip the scales at 260. A former weight lifter, I can tie most people into some fairly complicated knots with just my bare hands. Yes, I'm betting I could even do the "tear your arm off and beat you with it" thing to your average Joe citizen.
So yes, a fist fight can most certainly rise to the level or requiring deployment of a pistol in a self defense situation. Especially if you have some 6' + guy sitting on your chest beating your head into the sidewalk...
From the police report: "While I was in such close contact with Zimmerman, I could observe that his back appeared to be wet and was covered with grass, as if he had been lying on his back on the ground. Zimmerman was also bleeding from the nose and back of his head."
Gonna stick by your assertion that claims that "the kid was on top of zimmerman" are bs?
The kid was on top of Zimmerman pounding on him. Why doesn’t the “Stand Your Ground” law apply?
Because Al Sharpton says so?
A does NOT have to let B choke him to death, just because he punched first. That’s absurd.
It's illegal for "kids" to have guns. If A is able to grab a rock and whack B in the head to stop the attack, he/she defended themself. If B dies, there will be an investigation to see who started the fight that ended in death. Your scenario rarely ends in a fatality unless A then turns the tables and beats B to death "in self defense." If A shoots B dead, he/she broke some weapons laws and has a whole slue of legal problems ahead.
If you would like to try out another analogy, I understand. That one was terrible.
If you are the aggressor, if you are guilty of battery and/or assault and then lethally defend yourself when the tables turn, the castle doctrine does not apply. Hypotheticals are largely ineffective at finding fault or justification for a law. The only reason these laws are needed is because DAs, attorneys, LEO apparently can't be trusted to make good judgments when enforcing some laws. It's the same reason kids get kicked out of the public school system for sharing aspirin (drugs). Zero tolerance laws absolve administrators from having to demonstrate good judgment as a qualification for their position.
Ok. You can. But I would expect you would have to face 12 of your peers in a court of law to prove your intent and innocence. After all, that is how the justice system works. There would be reasonable cause to arrest you.
According to you I couldn’t use it unless the guy had a brick, a bat, or 3 others with him?
When someone attacks you at night, you have to assume they have a weapon or intend to kill you, to assume otherwise would be a fatal mistake.
Now you are changing the context. Let's roll back the emotion a bit. I carry legally. I will defend myself and/or my family with lethal force if necessary and hopefully not lose too much sleep over it.
The context we are referring to involves you instigating the confrontation.
You’re far too kind.
I agree. So when I walk up to you and punch you in the back of the head (attack you) ....you turn around and start pummeling me, I can shoot you and kill you and get off scott free?
Really? If you say so.
That is not the police report that org.whodat was qouting. It does not have the girlfriend. If you have info on the police report the org.whodat refered to please send it along.
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