February 22, 2013
Mark O'Mara and George Zimmerman (Joe Burbank/AP)
Mark O’Mara and George Zimmerman (Joe Burbank/AP)

Mark O’Mara summed it up best during our 42-minute conversation on Wednesday: “This is an academic argument over the semantics of words.” The words in question are “stand your ground” (SYG). The argument is over whether Florida’s insane law applies to O’Mara’s client George Zimmerman, the killer of Trayvon Martin.

In a post earlier this week, I wrote about how “‘[s]tand your ground’ eludes Robert Zimmerman.” George’s older brother has aggressively defended him on television and on Twitter.  And I tartly declared, “For Robert Zimmerman to say SYG is not a factor in his brother’s case against the second-degree murder charge shows how little he knows about the law and his brother’s defense.” In fact, Zimmerman knows all about his brother’s defense, twisted though it may be.

Last August, O’Mara announced that he would not argue a “stand your ground” defense, using the same curious logic he used with me earlier this week. What’s problematic is that O’Mara is engaging in semantic gymnastics to avoid using the words “stand your ground” while availing himself of the law’s most generous provision, the immunity hearing. No such thing existed for self-defense cases before SYG became law in 2005.

With a major push from the National Rifle Association (NRA), Florida amended its self-defense statute to allow potential victims to stand their ground against an assailant by removing the duty to retreat and permitting them to meet force with force, including deadly force, if they reasonably believe it is necessary to save their life. It also granted immunity from prosecution. Because of this, SYG has been called a “license to kill” and the “shoot-first” law.

The prime mover behind this insane statute was Marion Hammer,  the first female president of the NRA. Around the time of SYG’s passage, she told CNN about the rationale behind the changes.

“The law is constructed to give law-abiding people the right to protect themselves when they are attacked,” she said at the time. “I think the message to criminals is going to be — you break into a home, you run the risk of being shot. You attack people on the street, you run the risk of being shot.”

“Stop calling it a ‘stand your ground’ statute,” O’Mara told me. “We are never going to say that [this] is a ‘stand your ground’ case.” One reason for that, he said, is because the law itself is not called SYG but “Justifiable Use of Force.” Yet, he gave his own definition of SYG that doesn’t exactly mesh with what the law says. “I define ‘stand your ground’ as having an opportunity to retreat and you affirmatively decide not to,” he told me. Here’s what the law says:

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.

As you can see, it says nothing about “having the opportunity to retreat and you affirmatively decide not to.” It clearly states “no duty to retreat.” Still, O’Mara argued in an online post responding to my writing that SYG doesn’t apply to his client.

If the “Stand Your Ground” portion of the law was to be applied to the Zimmerman Case, even if George had an ability to retreat, he would not be required to do so before utilizing deadly force. In this particular case, George did not have an ability to retreat because he was on the ground with Trayvon Martin mounting him, striking blows, therefore the “Stand Your Ground” “benefit” given by the statute simply does not apply to the facts.

Confused? This circuitous logic is what kept O’Mara and me on the phone for more than 40 minutes. Even though standing one’s ground has nothing to do with physically standing to defend oneself, O’Mara insists on making it part of his rationale for why SYG doesn’t apply.

When I asked Benjamin Crump on Friday afternoon for his reaction to O’Mara’s assertion, I was surprised to hear that the lawyer for Trayvon’s parents agreed with the attorney for his killer.

We [are] glad to see that Mark finally agrees with us that it is not a Stand Your Ground case, because we’ve said all along that [George Zimmerman] profiled and pursued Trayvon. And once you chase somebody you can’t, it’s asinine to say that I’m defending myself once I pursue somebody. I go out and start the confrontation and then to say that I’m standing my ground.

Now the question is this here. Let’s don’t have a play on words and semantics and so forth. If he’s going to have a “stand your ground” hearing then call it a “stand your ground” hearing. Let’s don’t try to play on the public’s intelligence. It’s one of those things that you see where people want it both ways. And you can’t have it both ways. … If it’s not “stand your ground” then let’s go ahead and have the trial. Let’s go have the trial.

Crump makes a very good point. O’Mara is trying to have it both ways by arguing a distinction without a difference. Either SYG applies or it doesn’t. And since all agree that SYG doesn’t apply, O’Mara should skip the immunity hearing and go straight to trial.

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Jonathan Capehart is a member of the Post editorial board and writes about politics and social issues for the PostPartisan blog.