Thursday, April 12, 2012



Under Florida law, Section 776.032 provides immunity from arrest unless the police have "probable cause that the force that was used was unlawful."   This law puts police in the position of having to make a two-part analysis.  They cannot place the suspect under arrest unless they have probable cause.  This means they cannot merely believe there was a killing, but also must know that the killing was not in self-defense.  Unless there are witnesses to the shooting it cannot be suggested that it was not self-defense.  In this case the only person who could have refuted self-defense at the scene was Trayvon Martin.  
The uniqueness of Florida’s "Stand Your Ground" law certainly played a role in the delay of George Zimmerman’s arrest.  In Massachusetts, self-defense   is an affirmative defense to be raised at only at the time of trial.  Under Florida law however, this provision can act as both immunity from prosecution or in Zimmerman’s case arrest.
Recently, the Florida Supreme Court ruled that anyone claiming "Stand Your Ground" immunity in a death, battery, or assault case could request a hearing on the evidence of self-defense.  This preliminary hearing basically allows both the prosecutor and the defense attorney to present all the elements of the self-defense issue to a judge. In order to get charges dismissed, the defendant must convince the judge that a reasonable person would believe that using deadly force or the threat of using deadly force was the only way to protect his or her life.  At his hearing, Zimmerman's lawyers would only have to prove by a preponderance of evidence that he acted in self-defense.   Although at this stage the burden has uniquely shifted to the defendant, the burden is a relatively low hurdle.  We, in Massachusetts, have no such preliminary hearing.   Here, it is the obligation of the prosecution to prove beyond a reasonable doubt that the accused did not act in self-defense. To do so however the following circumstances must be present:
1)  The  defendant had a reasonable belief that he was being attacked or about to be attacked
2) That he limit the force he uses to that which is reasonably necessary under the circumstances and
3)  That  he do all he reasonably can to avoid combat.  This is the so-called duty to retreat that makes our laws quite different than Florida.

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