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Post Partisan
Posted at 01:00 PM ET, 06/12/2012

Stand Your Ground: Zimmerman could walk


In the aftermath of the killing of Trayvon Martin by George Zimmerman, there was plenty of reporting that the neighborhood watch volunteer violated the Stand Your Ground law because he failed to obey the admonition by the police dispatcher to not pursue the teenager.  Former Florida state Sen. Durell Peaden(R) in March said, “The guy lost his defense right then. When he said ‘I’m following him,’ he lost his defense.” After talking with Kendall Coffey, former U.S. Attorney for the Southern District of Florida, I have to say such an assertion is not so iron-clad.

Peaden admitted then that he didn’t have all the facts. None of us knew then what we know now.

We saw the video that purported to show Zimmerman with no injuries. And then we saw the photos of actual injuries. And then we learned about the extent of the shoddy police work. And as Stephanie McCrummen and Sari Horwitz reported last month, the final 45 seconds of the altercation that led Zimmerman to shoot and kill Trayvon remain in dispute. Was that the neighborhood watch volunteer screaming for help or was it the unarmed 17-year-old who was staying with his father’s girlfriend while suspended from school? Most importantly, who was the physical aggressor in the altercation that led to a deadly conclusion? That is the question that could have the most bearing in a Stand Your Ground (SYG) hearing.

Among the flood of documents, photographs and audio recordings released last month by Florida prosecutors, the most damning for Zimmerman was the “capias request” filed by Sanford Police lead investigator Christopher Serino. The March 13 petition sought to arrest Zimmerman and charge him with manslaughter.

The encounter between George Zimmerman and Trayvon Martin was ultimately avoidable by Zimmerman if Zimmerman had remained in his vehicle and awaited the arrival of law enforcement, or conversely if he had identified himself to Martin as a concerned citizen and initiated dialog (sic) in an effort to dispel each party’s concern.

But this unambiguous truth might have no bearing at all in a SYG hearing. According to Coffey, “That’s an issue of fault rather than whether he meets the statutory elements of Stand Your Ground.” This is key, he said, in a criminal case. “Serino may be right, but that’s not the right [way to look at this]” vis-a-vis a SYG hearing. The insane Florida statute is clear.

Florida statute 776.013(3) says: (a) person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.


The key phrase as it pertains to the killing of Trayvon is “unlawful activity.” Neither Trayvon nor Zimmerman was doing anything illegal before the confrontation. What happened in the final minute holds the key to whether SYG applies. According to Coffey, at issue is not whether Zimmerman chased Trayvon or even was verbally aggressive.
This combo made from Feb. 27, 2012 photos provided by the State Attorney's Office shows George Zimmerman, the neighborhood watch volunteer who shot Trayvon Martin. The photo and reports were among more than 200 pages of photos and eyewitness accounts released by prosecutors Thursday, May 17, 2012. (AP Photo/State Attorney's Office (AP)
It’s whether Zimmerman or Trayvon threw the first punch.

According to Coffey, if Zimmerman threw the first punch, then he would not be protected by Stand Your Ground. That’s because the statute says SYG protection applies only if Zimmerman is engaging in lawful activity. Striking someone or initiating a physical altercation is not a lawful activity. But if Trayvon threw the first punch due to verbal harassment from Zimmerman, Coffey said, then SYG would apply to Zimmerman.

Remember, the law allows someone to “meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself.” Which brings us to the lacerations on the back of Zimmerman’s head. Coffey reminded that prosecution investigator Dale Gilbreath testified at the April bail hearing that Zimmerman’s injuries “are consistent with a harder object striking his head.” Gilbreathalso admitted that he didn’t know who started the fight between Zimmerman and Trayvon and that the FBI cannot determine who is screaming in the background of 911 calls.

Still, Coffey wonders whether the Sanford Police dispatcher’s admonition to Zimmerman — “We don’t need you to do that” — to not follow Trayvon would “erode his being lawfully in a place where he had a right to be” as the SYG statute allows. As Serino wrote, this whole thing was “ultimately avoidable by Zimmerman” had he just stayed in his vehicle. Had he not acted like a “crazy and creepy man,” as Trayvon described Zimmerman to his girlfriend during a phone call just before the fatal confrontation. She told investigators that she heard Trayvon ask, “What are you following me for?” The reply she heard was, “What are you doing around here?” The last words she said she heard Trayvon say after she said he was pushed or bumped were “Get off, get off.”

As I explained in my previous post, seeking immunity from prosecution through a SYG hearing will be up to Zimmerman and his defense attorney Mark O’Mara. There is no timetable to file for such a hearing. And there are risks for both sides. But if Zimmerman can prove to Seminole County Circuit Judge Kenneth Lester by a preponderance of evidence that he was standing his ground against physical attack from Trayvon, he will walk.

By  |  01:00 PM ET, 06/12/2012

Tags:  Trayvon Martin

 
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