Massively gray area though isn’t it?
When you consider that a simple shot to the knee would do the trick for most incidents right? Yet how many times is that an actual consideration proposed by the state in self-defense cases?
The obvious rebuttal is ‘well my client is not an officer of the law!’
But most gun owners are a half decent shot at five feet, and surely can hit any other part of the body instead of the head or the heart.
My thinking in that situation for the Minnesota man would be ‘ok this crazy bitch just laughed when I shot her, so she’s on drugs, and this other person is coming up from behind me. I need to definitively deal with the first target, then move to the next’
What is the alternative in that scenario; incapacitate them like a professional and then somehow restrain multiple targets until the authorities arrive?
We tend to forget that not everyone is Jason Bourne and it’s not surprising that a lot of Americans are like 'fu** em and let God sort them out"
Speaking to that side of things… here’s a couple excerpts from an article on two female witnesses Mary Cutcher (who was a massage therapist, not a teacher apparently) and Selma Mora.
*“Zimmerman is standing over Trayvon’s body,” remembers Cutcher. (Like a lot of people, she uses the last name to refer to the killer and the uncommon first name to refer to the victim.)
*
Really do they? Because I go with the uniformed approach - all surnames or all Christian names. The above indicates to me that Cutcher is treating Martin as the victim.
*“Had it not started raining,” says Cutcher, “there would have been a ton of kids playing outside.”
*
Point being? And since when does rain turn the skies so black that you couldn’t see well without a light of some type? Do kids around there play in the dark?
Page 2 there goes onto expose Cutcher for her attempt at fifteen minutes of fame.
Very different state. Minnesota is a duty to retreat state. On top of that there are other significant differences in the qualifying elements for self defense. And then beyond that, the duty rests with the accused to prove the validity of their claim of self defense.
The four elements as explained to me by a CCW instructor.
You reasonably believe you are in imminent danger of death or great bodily harm.
You have reluctantly entered the conflict. You must not be viewed as the aggressor, or have done anything to escalate an incident.
You must have no reasonable means of retreat or escape.
You use no more force than necessary to stop the threat.
In other words, in Minnesota Zimmerman’s goose would be cooked. As are some battered wives and girlfriends that defend themselves.
Minnesota and Florida make nice bookends from excessively restrictive to overly liberal in the use of force for self defense.
Back to the affidavit comments, Hornsby blogged this back in June :
*
"As many commentators have opined, including myself, Angela Corey’s probable cause affidavit to support a charge of Second Degree Murder is not only a stretch, but extremely lacking in objective facts.
Boiled down to its essential elements, the probable cause affidavit reads:
“Trayvon Martin was on his way back to a townhouse where he was living when he was profiled by George Zimmerman.”
Zimmerman called the non-emergency police number and pursued Martin.
When the dispatcher realized Zimmerman was pursing Martin, he instructed Zimmerman “not to do that and an officer would meet him.”
“Martin attempted to run home, but was followed by Zimmerman.”
“Zimmerman confronted Martin and a struggle ensued.”
“Martin died from a gunshot wound.”
As was highlighted by Zimmerman’s attorney, Mark O’Mara, the prosecution engaged in selective word use when drafting their probable cause affidavit.
Where followed would have been appropriate, they used “pursued.” Where approached could have been used, they used “confronted.”
Which begs the question; why? Why did Angela Corey elect to use such specific language in the probable cause affidavit?
The answer is quite simple, in order to survive the inevitable Motion to Dismiss based upon Self Defense that will be filed by George Zimmerman’s attorney, she must convince the judge that Zimmerman was the “First Aggressor.”"*
And here is some thoughts from Hornsby on the prosecution immunity :
*"Florida Statute 776.032
This statutory enactment created what is known as “criminal prosecution immunity.” And stated that a person who lawfully defended themselves is “immune” from prosecution from arrest, detention, or prosecution.
As the procedure for making the determination of whether a person was “immune” from criminal prosecution was not defined by the legislature, the Florida Supreme Court cleared up the issue in Dennis v. State, 51 So. 3d 456 (Fla. 2010) and ruled:
A defendant may raise the question of statutory immunity [from criminal prosecution prior to trial] and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches."
“[…Finally, the statute goes on to state that a law enforcement agency cannot arrest a person unless it determines that there is probable cause that the force used was unlawful.]”
*
The shoot/don’t shoot decision is binary. Either you shoot at center mass, or not at all. It is almost never a good idea to shoot to wound.
Considering that they are both prone and not attacking, and that the shooter in this case said specifically that he wanted to finish them off, it does not sound to me like they needed much restraining.
Then we disagree on what constitutes “criticism”. I was offering advice. I was not judging the merits and faults of betenoire39.
In post 8501, betenoire39 asked “for those manslaughter elements”. You had already made him aware of the elements for 2nd dregree murder in post 8460. Many of the elements would be the same.
Previously provided by you -
*An element of a crime is a discrete component of a crime, component which must be proven beyond a reasonable doubt in order to convict an accused.
The elements of every crime are defined by statute and case law. In this case, assuming that Zimmerman advances self-defense, here are the elements of second-degree murder:
Treyvon Martin was a human being.
Treyvon Martin is dead.
The death was caused by the criminal act of George Zimmerman.
The act which caused Treyvon Martin’s death was motivated by hatred, spite, malice, or ill-will.
George Zimmerman did not reasonably believe that his use of deadly force was necessary to prevent imminent death or great bodily harm to himself.
6.The killing happened in Seminole County in the State of Florida.*
Without using the subscription service of Lexis or Westlaw, I searched for, “What are the elements of manslaughter in Florida.”
The website of Jacksonville, FLA criminal defense firm of Arnold & Sichta (your litigation team for criminal law, criminal appeals and family law) provided the answer.
*To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
(Victim) is dead.Give 2a, 2b, or 2c depending upon allegations and proof.
2. a. (Defendant) intentionally caused the death of (victim).
2. b. (Defendant) intentionally procured the death of (victim).
2. c. The death of (victim) was caused by the culpable negligence of (defendant).
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.
Give only if 2(a) alleged and proved, and manslaughter is being defined as a lesser included offense of first degree premeditated murder.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death. See Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007).
Give only if 2b alleged and proved.
To “procure” means to persuade, induce, prevail upon or cause a person to do something.
Give only if 2c alleged and proved.
I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
§ 782.07(2)-(4), Fla. Stat. Enhanced penalty if 2c alleged and proved. Give a, b, or c, as applicable.*
Given the evidence that has been released by the State of FLA and TM’s and GZ’s attorneys, it appears to me that GZ is not guilty of 2nd degree murder and it’s unlikely that he’s guilty of manslaughter. Did GZ intent to commit an act which he knew would cause/result in death?
This has to be a two way street. You cannot expect someone to control emotions, adrenaline and fear to the point where they suddenly exert some arbitrary stoppage of force, yet also expect them to shoot to wound rather than just shoot and hope for the best (which might inadvertently result in a death, rather than incapacitation).
And that is what most onlookers or prosecutors aim for, or conversely fail to consider.
You’re not a professional when you need to be, and you’re a professional when you shouldn’t be.
Damned if you do, damned if you don’t.
If it’s pretty clear that persons enter a home illegally and a home owner shoots them, then he’s within his right to do so.
If they die, they die, he can claim that he was shooting for center mass.
And then if he shot them fifty more times followed by some necro-skull fu**ing is irrelevant. They are dead and dead because of their illegal activity.
For me a better question is whether that scenario makes him eligible for use of lethal force.
As soon as it does, all bets are off, no holds barred all laws just went out the window.
This clearly goes beyond even Florida’s SYG or Castle doctrine, but is how I would like all states to treat home invasions.
Eighty year old lady “Excuse me Mr. criminal, you are in my home and I’m allowed to defend myself. You’re coming closer so I will shoot you now, but I’ll probably only wound you, so in the event you don’t die, please don’t get mad and rape/kill me(even though you were originally only here to steal my jewelery, which I could not have foreseen though I decided to err on the side of caution BECAUSE YOU JUST BROKE INTO MY HOUSE…just saying, disclaimer and all)”
Addition for previous post :
What’s REALLY strange is that SYG which allows for ‘defense anywhere’ status, is stronger than Castle doctrines in some states. How does that work when we’re talking about public environments?
It seems entirely counter-intuitive when there’s enough Castle doctrine that very clearly state “There is no duty under the Castle Doctrine to ascertain WHY the intruder is there…it’s assumed any person there uninvited is there for untoward purposes, thus this is where the law frees homeowner’s and renter’s to defend their abode without further legal obligation as to the purpose of the intruder.”
“Could a reasonable jury find that GZ intended to commit an act which he knew would cause/result in death?”
Yes. He carried a loaded gun to a confrontation with an armed criminal, when he had no need to confront that armed criminal.
Of course Martin was not armed. But the jury could find that Zimmerman believed Martin was armed, which is all that was necessary.
Or he carried a loaded gun to a confrontation with an unarmed teenager, from whom there was no danger.
There’s plenty of ways the jury can find culpable negligence here. I understand you don’t believe he acted culpably negligent, but that doesn’t mean that there’s zero evidence of it.
I wouldn’t ever expect anyone to try to shoot to wound, nor do I think the law should require it. And I would hope the law would make allowances for when I shoot a burglar more often than I would have done if I were totally calm. But I don’t think we are talking about situations where I start shooting someone who presents a threat and don’t stop until I empty the clip, even if the last round or two hits him when he is down.
But that does not seem to be what happened in the Minnesota case. That shooting was not adrenaline, nor panic. It was not even a disproportionate response to a threat - the two were down and helpless when the home owner shot them.
That wasn’t self-defense - it was an execution.
There I don’t agree. You don’t shoot someone unless they present a threat. If they stop presenting a threat, by running away, or even by falling down and bleeding, you stop shooting them. You do not drag them into your basement and finish them off.
Now ISTM that much of the time, it is a lot murkier than it was (apparently) in the Minnesota case. You can make a reasonable case that anyone who breaks into my house is a felon, and therefore can be presumed dangerous. Maybe he really does just want to rob me, and wouldn’t harm me if he can at all avoid it. I don’t know that, and it isn’t a chance I am willing to take.
So my expectations for confronting a home invader would be that I challenge him with my shotgun in hand. (Actually I chamber a round in his hearing - that makes a distinctive noise that sends the unambiguous signal that breaking into my house was a Real Bad Idea). Then I point the weapon at him. He is then confronted with a choice.
If he wants to go bye-bye, he can do that - providing that neither I, nor my family, are between him and the nearest door (or window). But if I am in the way, and he just wants to brush past me and run out the door, too bad - moving towards me counts as an attack. I am going to make bangy noises at him. And if I am on the jury for someone who did the same, I acquit without leaving the box.
But if I manage to hit him and he falls over, or the gunshots cause him to come to Jesus and lie down and surrender nicely, I withhold my fire. I do not finish him. I only fire at someone who currently threatening me. And lying down is not a threat.
This guy in Little Falls sounds like a vigilante, not a defender of home and castle. That kind of thing goes well in movies, but I don’t care to live in a society where it is real life. If any such thing exists.
[QUOTE=Bricker]
Or he carried a loaded gun to a confrontation with an unarmed teenager, from whom there was no danger.
[/QUOTE]
I think the idea that Martin presented no danger to Zimmerman is going to be a pretty hard sell. I understand what I think you are saying - it is not impossible that the jury would find so - but Zimmerman approached Martin with his gun tucked away in his waist, not in his hand. Or Martin approached Zimmerman, which means Zimmerman did not approach anyone with a loaded gun - he had a loaded gun, which he used to defend himself when attacked.
Sure, they could. They could also decide that Martin came back from his father’s girlfriend’s condo and approached Zimmerman. Or at least they could decide that there was reasonable doubt about any scenario.
I was talking, and I believe Bricker was talking, about what would be reasonable to conclude, not necessarily what was likely or what really happened.
Zimmerman had the opportunity to confront Martin multiple times and chose to call the police instead. he’s on record as doing so. His actions show that he want’s to keep Martin in sight but not in direct contact. Martin’s actions are described on the phone call to the Dispatcher as confrontational.
How could George approach him when he could no longer even see him, after Martin headed south behind the houses near the “t”? George went east after seeing that Martin went south and disappeared.
DeeDee even confirms that Martin stated he lost Zimmerman at this point.
*Dee Dee: So he say he about to run for the back cause its mo’ easier, he said. So, next thing I hear, he gettin’ run. And I can hear that the wind blowin’…
BDLR: So you could tell he was running at that time…
The person who fabricated DD’s version of events has no concept of time passing. It took forever for Trayvon to run back from the 7=11 because it was raining, and than DD has Trayvon running to escape Zimmerman, yet only gets a short distance from the T in the several minutes Zimmerman is talking on the phone, going nowhere. There’s not even any hiding in her account.
yeah, don’t let facts get in your way. You remember the part about Judges setting aside jury verdicts? Saves a lot of time with needless appeals. If juries operate like you and “just know” someone is guilty then judges have the power to ignore them.