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The Interplay of Sections 776.041 (Use of Force by Aggressor) and 776.013(3) (Stand Your Ground) in Zimmerman Case

by Professor Will Huhn on April 14, 2012

in Criminal Law,Wilson Huhn

The "Stand Your Ground" law explicitly provides that a person "has no duty to retreat" if he or she is "not engaged in an unlawful activity." However, another statute entitled "Use of Force by Aggressor" provides that if a person initially provokes the use of force then that person may not claim self-defense unless he or she has "exhausted every reasonable means to escape." I suspect that prosecutors will rely upon this second law in their prosecution of George Zimmerman for the shooting death of Trayvon Martin.

Section 776.013(3), the "Stand Your Ground" law (which was discussed in this previous post) will constitute Zimmerman's principal defense. This statute says that a person "has no duty to retreat" in the face of an attack. This law states:

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.

However, another Florida law overrides 776.013. This other law is a later section of the same chapter of the Florida laws, Section 776.041 entitled "Use of Force by Aggressor." This section of the law explicitly states that the rules of self-defense that are "described in the preceding sections of this chapter" do not apply if the defendant was attempting to commit a forcible felony OR if the defendant initially provoked the attack against him. Section 776.041 provides:

Use of force by aggressor.âThe justification described in the preceding sections of this chapter is not available to a person who:

(1)âIs attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2)âInitially provokes the use of force against himself or herself, unless:

(a)âSuch force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b)âIn good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

This statute allows an aggressor to claim self-defense only if the person "has exhausted every reasonable means to escape" or if "the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force."

Under Section 776.041 the prosecution need not prove that Zimmerman swung the first blow when they finally came together. It need only prove that Zimmerman "initially provoked" the attack. As noted in yesterday's post, in their probable cause affidavit the prosecutor's investigators  repeatedly emphasized Zimmerman's state of mind – his unfounded belief that Martin was committing a crime. The prosecution will attempt to prove that because of his irrational suspicion and against the advice of the police dispatcher Zimmerman unreasonably followed Martin armed with a gun, thus provoking the confrontation that led to Martin's death. If Martin had confronted Zimmerman when they first encountered each other Zimmerman would have had no duty to retreat. However, if the jury finds that  Zimmerman provoked the attack, the jury may not find that Zimmerman acted in self-defense unless they also find that Zimmerman either tried to escape from Martin or that he withdrew from Martin and clearly indicated his desire to withdraw.

{ 2 comments }

larry d. April 14, 2012 at 8:09 am

I haven't seen any evidence that Zimmerman believed Trayvon was committing a crime or that he provoked physical interaction in any way. Unless some new evidence comes to light, the prosecutor seems to be guided by something other than evidence and law.

Gandydancer April 24, 2012 at 12:59 am

"This statute allows an aggressor to claim self-defense only if the person "has exhausted every reasonable means to escape" or if "the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force."" is simply false.

You quote 776.041(2)a. Didn't you read it?

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