Can an aggressor act in self defense?

[Tgace]

If you are really serious about learing the complexities of this Steve...read this.

http://moritzlaw.osu.edu/students/groups/oslj/files/2012/03/71.2.raymond.pdf

Suppose, once again, that you are assaulted by a person threatening you with deadly force. But, looking further back in time, imagine that you wound up in that situation because you chose to enter into, rather than avoid, a potentially risky situation. Imagine, for example, that a friend told you that the assailant, a longtime enemy, was looking for you, had a gun, and planned to spend the evening at a local club. You replied, “Who cares? I’m not afraid of him. If he tries to start something with me, he’ll be sorry,” and headed off to the very same club. Once there, the assailant threatened you with lethal force. May you respond with lethal force in self-defense?

Some might say that, by going to the club where you knew the assailant might be, you were “looking for trouble.” Should that affect whether you can claim self-defense? Should legal analysis of a self-defense situation permit consideration of an expanded time frame, in which the prior conduct of the actors may preclude their right to act in self-defense? Or should the question about the legal justification of an act of self-defense turn on the narrow circumstances of the ultimate violent interaction, without an inquiry into whether prior behavior by the actor claiming self-defense precipitated a confrontation that could have been avoided? In other words, how should we “frame” the incident in which an actor claims the right to act violently in self-defense?

One might think that the answer to this question would be clear: either the law should draw the frame broadly, to include those facts, or draw it narrowly, to exclude them. Most commentators seem to think that the law is clear on this issue. As it turns out, however, the law is decidedly ambiguous about this problem. This lack of clarity has far-reaching implications. The problem of framing an incident of the use of force in self-defense is ubiquitous; any time we consider whether a person properly used force in self-defense, we must decide how far back, both in time and circumstance, we will look to consider how the actor came to be in the situation in which force became necessary.

 

[Steve]

Following in and of itself is not physical force of which you would be legally obligated to retreat from. Theres nothing illegal about asking "who are you and what are you doing here?" The proper response of which would be "Im walking home" or "go **** yourself I don't have to answer to you"...not a punch in the face.

Thanks for the link. I'll check it out.

Regarding above, We have one persons side, who has a vested interest in painting a picture that is sympathetic to his actions.

Do we know that Martin punched Zimmerman first?

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[Tgace]

From that same source:

The classic statement of the notion that an actor need not avoid an encounter to be entitled to claim self-defense was articulated in State v. Gardner:

[A] person knowing his life to be threatened, and believing himself to be in danger of death or great bodily harm, is not obliged to remain at home in order to avoid an assault, but may arm himself sufficiently to repel anticipated attack, and pursue his legitimate avocation; and if without fault, he is compelled to take life to save himself, he may use any weapon he may have secured for that purpose, and the homicide is excusable.

Even where courts did not expressly articulate this principle, they rejected any notion that the frame should be expanded to ask whether a defendant claiming self-defense should have engaged in alternative avoidance behaviors earlier in the encounter.

In State v. Adler, for example, Adler and Johnson got into an altercation. Adler “retreated, and ran into a grocery store,” but “remained in the store but a very short time.” When he returned to the street, he had a revolver in his hand. Outside the store was a mob of about two hundred people. The court concluded that Adler, by entering the store, had abandoned the conflict, and was therefore entitled to defend himself when he emerged from the store.

The court did not suggest that Adler was obliged to choose an alternative course of conduct—such as staying in the store—that would have enabled him to avoid his assailant as well as the rest of the angry mob.

 

[Tgace]

Thanks for the link. I'll check it out.

Regarding above, We have one persons side, who has a vested interest in painting a picture that is sympathetic to his actions.

Do we know that Martin punched Zimmerman first?

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I do not know. I believe thats Zimmermans claim. But I think it's only supported by people who heard Z calling for help and one person seeing Martin GNPing Zimmerman. I don't think there are any eyewitnesses to the initial physical contact.

 

[Tgace]

Just something throw out there...I believe that Fla law makes seif-defense a legal "defense" vs an "affirmative defense".

1. When a "defense, " other than an "affirmative defense, " defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt.

2. When a defense declared by statute to be an "affirmative defense" is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.

Which means the prosecution has to disprove Z's story beyond a reasonable doubt....

My .02...

The REAL issue here is the State overcharging a charge that they can't prove. Manslaughter would have been by FAR the more arguable offense...IMO.

 

[Steve]

From that same source:

So then, Martin may have been acting in self defense, even if he did approach Zimmerman?


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[Steve]

Just something throw out there...I believe that Fla law makes seif-defense a legal "defense" vs an "affirmative defense".



Which means the prosecution has to disprove Z's story beyond a reasonable doubt....

My .02...

The REAL issue here is the State overcharging a charge that they can't prove. Manslaughter would have been by FAR the more arguable offense...IMO.

I agree completely with you that manslaughter was a more appropriate charge, and personally believe that Zimmerman is guilty of it based upon what I have heard so far.


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[Tgace]

So then, Martin may have been acting in self defense, even if he did approach Zimmerman?


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Or vice versa...you were the one who said Z should have fled if M turned and approcahed him....

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[Steve]

Or vice versa...you were the one who said Z should have fled if M turned and approcahed him....

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Not quite. At least, not intentionally. What I was trying to suggest is that Zimmerman made a choice to engage Martin (and vice versa). It makes the self defense claim seem at odds to his behavior. But based upon the situation and the information you've shared, another question comes to mind. Is it possible for both Martin and Zimmerman to be acting in self defense?


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[Tgace]

Ill say it....again....it depends on who initiated physical contact.

You seem stuck on this idea that being followed justifies the use of physical force.

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[Steve]

Ill say it....again....it depends on who initiated physical contact.

You seem stuck on this idea that being followed justifies the use of physical force.

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Not necessarily. I haven't had a chance to read the article yet. Is it that simple? I can follow you and regardless of my behavior, if you initiate physical contact, I'm acting in self defense? That simple? Why isn't that the central question of the trial? Who touched whom first?

If I'm still stuck on this, it's because it still doesn't make sense to me.

And central to the original post, if I initiate physical contact with you, is there any circumstance where I could kill you in self defense? Is it possible? If not, I'll concede the point.

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[Carol]

I think the issue is that the scenario you are painting is a person being followed and being followed in and of itself is not enough of a justifiable situation. Following plus a threats may be.

Most self-defense defenses are structured around the AOJ triad.

I copied this from someplace but forget the source:

Ability = the threat has the power to kill or inflict grave bodily harm. Power could be a weapon (gun, knife) or sufficient disparity of force (greater numbers, training in the destructive arts, position of advantage).

Opportunity = the threat is capable of immediately employing the power to kill or inflict grave bodily harm. Key factors are proximity and obstacles. Of course, a firearm creates more opportunities, but as the Tueller experiments showed long ago, an average adult male opponent armed with a knife or club can close a 7 yard gap in 1.5 seconds.

Jeopardy = the threat uses words and/or actions that would lead a reasonable and prudent person to conclude that the opponent intended to kill or cripple them. The threat merely possessing a weapon does not in itself constitute jeopardy. Intent has to be manifest in the opponent’s words and/or actions.

A reputed scumbag following you (in and of itself) does not fulfill the AOJ triad. Thats not to say you shouldnt be on alert, nor does it mean you shouldn't be thinking about countermeasures. But by itself, it is not justification for lethal force.

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[jks9199]

I prefer IMOP:

Intent: the purpose or goal of doing harm to someone.
Means: the tools and or present capability to do harm.
Opportunity: the ready ability to carry out the intent. Things like being close enough to actually do what you threatened...
Preclusion: everything less than the force you used was unlikely to be effective in safely resolving the situation

So let's run that through a situation where the original aggressor becomes a victim...

Intent to do harm to the aggressor can be assumed; the person he assaulted or instigated the fight with is returning the favor. Probably with interest...
Means come into play as the original victim escalates the fight, maybe bringing a weapon or buddies into the fight -- or just turns out to be a highly skilled martial artist (picture the poor drunk fool who picked a fight with Maasaki Hatsumi, Maung Gyi, Nene Tortal, or plenty of others we could list who don't appear to be particularly dangerous)
Opportunity is covered -- the aggressor brought the fight to them, but they chose to stay in the fight longer...
Which is where they trip over Preclusion. They had the opportunity to escape, or to use less force -- but they chose not to. If someone can't satisfy Preclusion, they're up a creek.

Here's another example where the tables can turn and make the original victim an aggressor. A guy's at a party, and gets into it with someone we'll call Mr Mouth. He tries to do the smart thing, and leave. But Mr Mouth won't let him, and blocks his path. Our smart guy manages to shove his way past, and Mr Mouth follows him out, and tries to keep smart guy from getting into his car -- even pulls on his arm as he's trying to get into the car, then stands in front of the car. Mr Mouth is never seen or shown to be armed. Smart guy pushes the gas pedal, and knocks Mr Mouth over. The case could be made that smart guy just committed an aggravated assault (the exact term depends on the state law). Once in his car, could he have simply waited, or called the police, maybe driven another direction... In short -- he wasn't precluded from running Mr Mouth over to escape.

 

[Steve]

I think the issue is that the scenario you are painting is a person being followed and being followed in and of itself is not enough of a justifiable situation. Following plus a threats may be.

Frankly, I feel as though the issue here is that I'm the only one offering up any fodder for discussion and everyone else is sitting back and picking it apart. And remember, the purpose of this thread was never intended to be about Martin. It's about how an aggressor can claim self defense. You're focusing on Martin, in the Zimmerman/Martin situation. I'm suggesting that we focus on Zimmerman. How does the Zimmerman side reasonably allege self defense. What has to happen in order for the roles to have completely reversed in that scenario?

Most self-defense defenses are structured around the AOJ triad.

I copied this from someplace but forget the source:

Okay. Let's look at Zimmerman based on this.

Ability = the threat has the power to kill or inflict grave bodily harm. Power could be a weapon (gun, knife) or sufficient disparity of force (greater numbers, training in the destructive arts, position of advantage).

Do you think that Martin had the power to kill or inflict grave bodily harm? Zimmerman was larger, more experienced, better trained and armed.

Opportunity = the threat is capable of immediately employing the power to kill or inflict grave bodily harm. Key factors are proximity and obstacles. Of course, a firearm creates more opportunities, but as the Tueller experiments showed long ago, an average adult male opponent armed with a knife or club can close a 7 yard gap in 1.5 seconds.

Martin was not armed, although the defense is suggesting that he was "armed with concrete." Zimmerman, however, was armed with a pistol. Once again, how does Zimmerman go from being the pursuer to being the victim? (Not intended to be rhetorical)

Jeopardy = the threat uses words and/or actions that would lead a reasonable and prudent person to conclude that the opponent intended to kill or cripple them. The threat merely possessing a weapon does not in itself constitute jeopardy. Intent has to be manifest in the opponent’s words and/or actions.

Zimmerman was actively and openly following Martin, in the dark, while talking on his cell phone. If this applies, it seems most apt to apply to Martin. What had to happen in order for this to apply at all to Zimmerman?

What would Martin have had to do in order to meet these three criteria such that Zimmerman could kill him in self defense?

A reputed scumbag following you (in and of itself) does not fulfill the AOJ triad. Thats not to say you shouldnt be on alert, nor does it mean you shouldn't be thinking about countermeasures. But by itself, it is not justification for lethal force.

Thanks for this. So, then, in what way does this AOJ triad apply to Zimmerman?

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[Carol]

I'm not focusing on either Zimmerman or Martin and will defer to someone following the case that knows more details. Other than a couple of lunchtime convos with the retire LEOs I work with, I have largely not been paying attention. Sorry.

 

[Tames D]

I'm not focusing on either Zimmerman or Martin and will defer to someone following the case that knows more details. Other than a couple of lunchtime convos with the retire LEOs I work with, I have largely not been paying attention. Sorry.

It ok Carol. He hasn't either.

 

[Steve]

Carol, I understand. I think posting with two thumbs on an iPad makes being clear more difficult than usual.

I meant that the focus seems to be on the the person being followed.

 

[jks9199]

Frankly, I feel as though the issue here is that I'm the only one offering up any fodder for discussion and everyone else is sitting back and picking it apart. And remember, the purpose of this thread was never intended to be about Martin. It's about how an aggressor can claim self defense. You're focusing on Martin, in the Zimmerman/Martin situation. I'm suggesting that we focus on Zimmerman. How does the Zimmerman side reasonably allege self defense. What has to happen in order for the roles to have completely reversed in that scenario?
Okay. Let's look at Zimmerman based on this. Do you think that Martin had the power to kill or inflict grave bodily harm? Zimmerman was larger, more experienced, better trained and armed.
Martin was not armed, although the defense is suggesting that he was "armed with concrete." Zimmerman, however, was armed with a pistol. Once again, how does Zimmerman go from being the pursuer to being the victim? (Not intended to be rhetorical)Zimmerman was actively and openly following Martin, in the dark, while talking on his cell phone. If this applies, it seems most apt to apply to Martin. What had to happen in order for this to apply at all to Zimmerman?

What would Martin have had to do in order to meet these three criteria such that Zimmerman could kill him in self defense?
Thanks for this. So, then, in what way does this AOJ triad apply to Zimmerman?

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Specifically looking at Zimmerman/Martin...

Following someone is not, in and of itself, an aggressive act and definitely not an assault. Pair it with certain conduct (yelling "I'm going to kick your ***!", or other overtly threatening behavior) or in certain circumstances (you're trying to walk away from a fight, for example, and being followed by the guy who wants to fight you) may begin to alter that.

All the accounts I've seen seem to suggest that Martin turned and confronted Zimmerman -- but that's really immaterial. At some point, the two are close enough to have a verbal exchange, and for that exchange to become physical. Again, it seems from what I've read or seen that Martin likely threw the first punch but he might actually have been justified depending on exactly what Zimmerman said; essentially, Martin had to believe that he had to act to prevent imminent assault. It also seems clear that Martin got the upperhand and was dominating Zimmerman. At this point, no weapon has been produced, so both are unarmed in effect. Zimmerman begins to get pounded, and begins to fear serious bodily harm or even that Martin is going to beat him to death, and manages to draw his pistol, shooting a single round which stopped the fight.

Among the factors to assess the reasonableness of the use of force (including lethal force) is included the cumulative effects of injuries incurred in the fight. Zimmerman is getting pounded, suffering head wounds and being bashed into the concrete. The question becomes whether or not a reasonable person would feel that Zimmerman could reasonably conclude that he was going to be beaten to death or serious bodily injury. If you say no -- he wasn't justified in shooting Martin. If you say yes -- then he probably could be found to have acted reasonably. Just because in picking a fight, you bite off more than you can chew, that doesn't mean that the guy you're fighting can beat you to death. And, at this point, there's really nothing that suggests that Zimmerman had an intent to start a fight.

Now, I still say Zimmerman should have stayed in his truck. He plays a major role in creating the situation -- but did that mean that he deserved to be beaten to a pulp or killed?

 

[Tgace]

And you can be the initial aggressor and stiłl be justified in using deadly force.

If I have an argument with you and push you down...entirely started by me....and you pull a knife and come at me...do you think its ok to kill me because "I started it"?

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[Steve]

And you can be the initial aggressor and stiłl be justified in using deadly force.

If I have an argument with you and push you down...entirely started by me....and you pull a knife and come at me...do you think its ok to kill me because "I started it"?

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Of course not. This is exactly what's thought you were suggesting when you emphasized several times that the key was who initiated contact. You were giving me the impression that I was being thick by not agreeing.

What you said above is exactly what I was trying to say several posts ago.

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