Well, itâs Sunday evening, and that means itâs time to set the mood for . . . you guessed it, another week of Florida v. Zimmerman.
I thought Iâd do that by sharing some thoughts on an aspect of the Stateâs (apparent) theory of the case this week that centered on an area of the law with which I am passing familiarâthe law of self defense.
Thoughout the week the State has sought to minimize the apparent seriousness of Mr. Zimmermanâs injuries. These efforts reached an almost ludicrous stage during Friday afternoonâs re-cross of Lindzee Folgate, the physicianâs assistant who examined Zimmerman the day after the shooting. Apparently frustrated at Mr. OâMaraâs masterful performance on cross-examination (see Zimmerman Trial Day 5 â Analysis & Video â Stateâs own witnesses undercut theory of guilt for our analysis) Mr. de la Rionda asked, as if he meant it, whether all people have perfectly round heads or wasnât it true that a person can have a bumpy or raised area of their head as a normal state of affairs, and not solely as the result of traumatic injury.
Was he trying to suggest that the normal appearance of Mr. Zimmermanâs skull included contusions, abrasions, lacerations, and blood trails? It was more than a little bizarre.
In fact, the State had pounded on this theme of âZimmermanâs minimal injury throughout the day, asking witnesses if they had observed Zimmerman to be staggering or unresponsive to communication (it must be said that more than one witnessâState witnesses, mind you, all of whom were previously deposed by Mr. de la Rionda or a colleague, testified that Mr. Zimmerman had, in fact, complained of dizziness, etc.)
It seems that the State is attempting to establish in the jurors minds that Mr. Zimmerman could not have been justified in his use of deadly force in self-defense unless he had actually and already sustained life-threatening injury. If one accepts this notion, then the fact that Mr. Zimmermanâs injuries have (apparently) turned out to be transient may substantially attenuate his claim that his use of deadly force in self-defense was lawful.
(I say Mr.Zimmermanâs injuries were âapparently transientâ because it may be many years before there are clinical symptoms of any brain injury resulting from the repeated blows to Mr. Zimmermanâs head by well-thrown punches and sidewalk cement. What is emerging from the NFL with regard to late-life brain damage among players who have suffered repeated blows to the head is not encouraging.)
Must You Wait for the Attackerâs Bullet to Strike Before You Act in Self-Defense?
The very idea that the State is seeking to establishâthat self-defense is conditional upon actually suffering serious injuryâis, of course, ridiculous on its face. The purpose of the law of self-defense, particularly in the context of the use deadly defensive force, is to be able to protect yourself from an imminent threat of death or grave bodily harm before that harm occurs, not to require that you actually experience death or grave bodily harm before you may act to protect yourself.
Under the conceptual framework being advanced by the State, if a man were to clearly state his intention to kill you, slowly remove a pistol from his desk drawer, point it at you, and pull back the hammer, you would be required to wait until he shot at youâindeed, until he actually hit youâbefore you would be entitled to use deadly force to protect yourself. After all, if you acted with the swiftness appropriate to the occasion and struck down your attacker before his bullet tore through your body you wouldnât have so much as scratch to later show Mr. de la Rionda as justification for having used deadly force in self-defense.
Indeed, it is not hard to imagine a circumstance in which waiting to be struck before you act in self-defense can be interpreted as violating the second principle of the law of self defense, imminence, thereby stripping you of your right to argue self-defense at trial.
For example, if in the same scenario your attacker shoots you before you act (as Mr. de la Rionda seemingly requires), then throws his pistol out the third-story window and moves to leave the room, by all reasonable appearances intending to leave you to bleed out on the floor, you have no right under the law of self-defense to shoot him. At that point he no longer represents an imminent danger of death or grave bodily harm. Shooting him as he departs might be extremely satisfying, and even morally just (depending on your moral framework, eye-for-an-eye, and all that), but itâs not lawful self-defense. Itâs unlawful retaliation.
(As an aside, I note that a reasonable person might suggest it best in such a situation, once the deadly threat is apparent, to shoot first, shoot straight, and place a timely call for appropriate medical treatment for the poor fellow (assuming that medical treatment would be productive under the circumstances). But thatâs just me.)
I strive, as always, to be a fact- and evidence-based blogger on matters of the law of self-defense, so prepare yourselfâhere come a few statutes, with a jury instruction thrown in for the fun of it.
782.02. Justifiable use of deadly force
First up is the admirably brief 782.02. Justifiable use of deadly force, which states:
The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which such person shall be.
Note those words: âresisting any attemptâ. You need not wait until the harmful act has been completed, or has even begun its application. You are permitted to use deadly force under the circumstances described to resist even a mere attempt to murder you or to commit a felony upon your person or upon your home where you shall be. Any requirement that you first suffer disabling injury? No. Any requirement that you first suffer trauma sufficient to cause bruises that last longer than a day, or even half a day? No. Any requirement that you first suffer so much as the slightest scratch of your skin? No, no, no.
776.012âUse of force in defense of person
What then of what most people first think of when they look to Floridaâs deadly-force self-defense statute, 776.012. Use of force in defense of person, another admirably brief statute. It provides in relevant part;
[A] person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that such force is necessary to preventimminent death or great bodily harm to himself or herself or another or to preventthe imminent commission of a forcible felony . . .
Again, note those words: âto prevent imminent death or great bodily harmâ. Again, the intent of the legislature, and our own common sense, can read such language in only one wayâyou may lawfully act in self-defense in prevention of death or grave bodily harm, and without any requirement that you first suffer some death or great bodily harm.
Jury Instruction 3.6(f). Justifiable Use of Deadly Force
Finally, let us take a step away from the statutes and look to what the jury will be ordered by Judge Nelson to apply to the facts of this case: Florida Jury Instruction 3.6(f). Justifiable Use of Deadly Force. This, Iâm afraid, is not brief reading, running to nearly 1,600 words (including all alternative language). The relevant portion for our purposes, however, is not too long:
The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:
1. anotherâs attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].
A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent 1. imminent death or great bodily harm to [himself] [herself] or another, or 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.
I thing I risk not too much if I assume that the bolding Iâve inserted in the jury instruction above is sufficient to drive the point home.
Caveat: The Fear of Imminent Harm Must Be Reasonable
There is one caveat I feel obliged to mention, although it is not relevant for the purposes of discussing Mr. de la Riondaâs theory of the case, such as it is. One cannot use deadly force to prevent a fantastical or imaginary threat of death or great bodily harm. Rather the threat must be such that a reasonable and prudent person would have perceived as an imminent threat of death or grave bodily harm. Indeed, the threat need not even be REALâimagine, for example, that your attackerâs gun turns out to be a realistic-looking water pistol. So long as a reasonable and prudent person would have perceived the threat as one of imminent death or grave bodily harm the use of deadly force in self-defense is justifiedâand no need to first allow yourself get spritzed with water so that you can show the state your damp shirt.
Naturally, Iâve now opened the door to a discussion of what is meant by the phrase âa reasonable and prudent person.ââ Unfortunately, thatâs beyond the scope of this single blog post. Perhaps Iâll try to cover it later. Alternatively, Iâve heard that thereâs a book available that covers the matter in detail: The Law of Self Defense, Second Edition (for a few more days available at a 30% pre-order discount and free shipping). Take a look.
What Could BDLR Be Thinking?
The wonder in this instance is not in the statutes and the jury instruction, which are marvelously clear on this issue, but on what would lead State Prosecutor Bernard de la Rionda to believe that the considerable investment he is making in this theme of âZimmermanâs minimal injuryâ can possibly yield a positive return for him.
Can he be unaware that Judge Nelson will instruct the jury precisely as described in 3.6(f)? Or that OâMara and West will not drive this very point home relentlessly to the juryâall the while showing them those brutal, bloody, early photos of Mr. Zimmermanâs injuries?
Well, as Iâve said perhaps too many times before, if the facts are on your side pound the facts, if the law is on your side pound the law, and if neither is on your side, pound the table.
Andrew F. Branca is an MA lawyer and author of the seminal book âThe Law of Self Defense.â