Zimmerman was never arrested for domestic violence. His “ex-fiance filed a motion for a restraining order and alleged domestic violence. Zimmerman counterfiled for a restraining order against Zuazo. Both restraining orders’ were granted.”
Would you really be comfortable with arrests, as opposed to convictions, determining eligibility for any civil right?
That’s amusing, only people who won’t carry a concealed weapon should have a concealed weapon permit.
From a little bit of research, it seems that TX and CT are in the “preponderance of evidence” in matters of affirmative defense, while MD and UTare in the “state has to disprove self-defense beyond reasonable doubt” column. Can’t really find any place that has a comprehensive list on this issue by state.
Interesting, thanks.
Can we please leave the gun stuff out of this thread? We have eleventy billion other threads to talk about penis size and the nanny state.
It is also pretty hard to figure out what they mean sometimes. Consider this, from AZ:
http://www.azleg.state.az.us/ars/13/00205.htm
A. Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence. Justification defenses under chapter 4 of this title are not affirmative defenses. Justification defenses describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct. If evidence of justification pursuant to chapter 4 of this title is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification.
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AFAIU, they say some affirmative defenses need preponderance of evidence proof from defendant, and some do not. Which one is self-defense? I think, from the wording above, it falls into the second category.
I have no idea what that means. The previous version of that statute did not distinguish between the two and required the defendant to prove self-defense by preponderance. State v. Casey, 205 Ariz. 359, 71 P.3d 351 (2003).
Was changed in 2006: New law makes self-defense protections retroactive | Arizona Capitol Times
That is to say, I do know what it means: the state now has a modified burden for justification defenses. I just don’t know what defenses Arizona counts as justification (since the term is not always used to distinguish.)
Who was engaged in criminal activity? Both participants were legitimately worried that the other party would engage them preemptively so they had the right to defend themselves.
Take the Zimmerman matter for example. Once the altercation starts and Martin has a reasonable belief that Zimmereman is armed and is capable of using his gun against him he is perfectly justified and pounding his head into the pavement. While Zimmerman being legitimately worried about having his head pounded in had a legitimate right to shoot Martin.
The part in red is key. If the “altercation” was started by Martin punching Zimmerman in the face, he can’t then claim SYG justifies him in continuing his assault just because the guy he’s assaulting is resisting.
ETA: more precisely, FL’s law says,
That doesn’t apply the guy who initiated the attack.
I think FL law has it right. There’s a hearing to determine if SYG applies and if it does, then by definition the act wasn’t negligent. And since self defense is a bar to recovery, then there is no purpose in continuing with any civil trial.
I understand your earlier post (in another thread) about who is party to the action (criminal = state, civil = individuals) and action by one shouldn’t preclude action by the other and I have some sympathy for that position. In cases of self defense, I think a hearing such as FL has is sufficient to overcome that hurdle. I’d be fine if that rule were applied nation wide.
And how do you feel about the scenario I proposed, where the person involved needs to make an assessment on the spot where retreat may not be certain. How would you decide if the duty to retreat was satisfied? And then would you then put it in front of a jury so they can evaluate? I am reminded of the Holmes quote from the federal case: “Detached reflection cannot be demanded in the presence of an uplifted knife.”
My understanding is that Zimmerman still has an opportunity to do so.
Volokh has attempted to summarize the rules in different states:
More detail at the link.
TM had a destination and was only going there, not creeping around. It was his dad’s or step dad’s place right?
GZ was on the lookout for people up to no good. He saw someone he thought matched that description, and called the cops. They told him to not follow. He did anyways. He had a per-conceived notion about this person’s intentions as evidenced by his statements “these assholes always get away”. He pursued TM.
He had a gun, ready to fire, and knew that he had lethal force at his finger tip. He was supposedly just following the guy so he could help the cops interrogate the guy.
His role as an observer changed to one of a participant the moment he got within physical range of TM. He should have backed off, or maybe even displayed his weapon. Either of those would have prevented a hand to hand situation. GZ got close enough to TM and presented enough of a threat to him, that an altercation occurred. This altercation would NOT have happened had GZ kept his distance.
TM was being actively pursued by an individual who was not law enforcement, did not identify themselves as such, and was stalking him for a period of time. Who’s to say TM wasn’t defending himself? I doubt he would have charged a pistol wielding “neighborhood watch” psycho packing heat.
GZ, by his own admission, put himself into that situation. He was free to leave it to the cops at any time, and chose not to. He was the one that was armed, and he got close enough to the person he was trailing in order for there to be an altercation. In this altercation, he shot his prey in the chest, in the heart no less.
He brought a lethal weapon with him when he confronted someone he had no business confronting at all. If TM did the confronting, he was protecting himself against some random guy in the street, not an identifiable member of law enforcement.
GZ should not have been pursuing TM at all, and had he produced his weapon prior to them being in proximity, the situation would have ended differently.
GZ’s story is “I was trying to prevent crime, so I followed this guy with a gun on me, and we got too close. He was beating me up, so I killed him.” WTF?
GZ brought a gun to what wasn’t even going to be a fight. He made it one by either antagonizing, or proximity or both. He killed a kid, and it was justified because he was scared after he went at a kid with a gun.
Your belief about the events that led to TM’s death aside, what has that got to do at all with SYG…you know, the subject of this thread?
It’s not “standing your ground” if you bring the situation to the other person. You can’t be an aggressor and then “SYG” all of a sudden.
I suspect you do not understand what SYG means in terms of the law. The opposite of SYG is a duty to retreat. SYG wasn’t relevant in the criminal trial of GZ. It was included as part of the jury instructions along with a number of other boiler plate inclusions. It was never raised as a defense for GZ. In any case, SYG does not apply for the initial aggressor.
Taking the second point first, you are of course correct. But that’s a slight tilt, as opposed to the steep one used in criminal trials.
As for the first point, my understanding is based on this passage in a blog article (which I cited in Post #46) by Eugene Volokh:
Notice he’s talking only about the allocation of burden of proof for self defense, not all affirmative defenses.
I notice that the Volokh article cited says nothing about whether Zimmerman still has an opportunity to request an SYG hearing.
I did not mean to imply that the Volokh link supported the information in the previous paragraph though I see how that was not well constructed. Those two paragraphs were meant to be separate.
Here is an article in the Orlando Sentinel that describes how GZ still has the option to elect for a SYG hearing to determine if he would be immune from civil suit.
If GZ wins a SYG hearing, then TM’s estate/parents will have to pay him. If he loses a SYG hearing, he goes to trial and faces another jury.
That article doesn’t strongly support your position either.
I don’t have a strong opinion either way, but I’ll be surprised if an SYG hearing is entertained after acquittal. It’s a criminal law procedure, now moot. What you WANT the result to be is of no moment.
I’m not sure I agree with this analysis. While it is a criminal procedure, it also has civil implications. Zimmerman might argue he has a due process right to such a trial.
What if the state never charged him? How could he then avail himself of the protection the legislature fashioned for persons similarly situated?
The courts will have to come up with some scheme that gives effect to the legislature’s intent in passing the law. Perhaps they’ll just say Zimmerman is out of luck, but that will simply spawn an appeal until the issue is addressed by a precedent-setting decision.
Bricker - I think this speaks to your concern you raised in another thread about the differing parties to the different actions, either state for criminal or individuals for civil. Your concern was that civil immunity after acquittal fails to recognize the claim of the individual since they were not part of the state action and therefore you were opposed.
In the case of FL, where a hearing needs to be held prior to granting civil immunity, it would seem that that could address your concern since the immunity could only be sustained if self defense was determined by a preponderance of the evidence. It seems this attribute of the immunity has a worthwhile purpose of not allowing the estate of the deceased to extort the person who exercised legitimate self defense.
Are you still opposed to civil immunity in these cases?