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View Diary: Zimmerman's lawyers should realize it is not over yet (99 comments)

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  •  No lawsuit. The same "stand your ground" (11+ / 0-)

    law specifically prohibits a wrongful death lawsuit for anyone judged to be exercising self defense.  

    Florida Statute 776.032 (1):  A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
    They could maybe do something in federal court, but would have to find a way to have standing there.  

    This is terrible.   It makes me sick.  

    •  Crap. Well, the burden of proof would be (2+ / 0-)

      lower in the civil case.

      "You can never sink so low in life that you can't be a bad example for somebody." - my dad

      by briefer on Sat Jul 13, 2013 at 08:46:17 PM PDT

      [ Parent ]

      •  Well, in some fairness, there was a reasonable (11+ / 0-)

        ...impetus for such a provision.  People have been sued because a criminal broke into their homes, tripped on the stairs and injured themselves.  People have also been sued for kicking the shit out of someone who tried mugging them.  

        So there is a medium there, somewhere.  Criminals should not be able to sue you if they get hurt on your property in the commission of a crime, or if you defend themselves and they get hurt.  I call that "occupational hazard."  

        The problem here is with the self defense law itself.  As we just saw, it's far too open.  It allows people to instigate trouble then kill someone and claim it's self-defense.  

    •  but is it clear that is basis of acquittal? (3+ / 0-)
      Recommended by:
      worldlotus, emal, wishingwell

      absent the jury speaking, even though he raised it as his defense, the basis of the acquittal could be simply that the prosecution failed to prove beyond a reasonable doubt the elements of the case...   that may be the clear intent of the statute, but I wonder if anyone has tested it in court

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Sat Jul 13, 2013 at 09:05:11 PM PDT

      [ Parent ]

      •  It is defacto (9+ / 0-)

        Zimmerman claimed justifiable use of force. It's not actually "justifiable" until a jury says it is...which they have. In a case where a defendant claims justifiable use of force, and the judge includes justifiable use of force in the jury instructions, and the jury returns a verdict of not guilty, the acquittal by definition makes the use of force justified.

        At this point, via the Florida statute, the defendant is considered to have immunity from any future civil suits for the use of such force.

        As you point out, I believe there have been some challenges to the statute in court, however, so we'll have to see that plays out.

        As far as the DOJ getting involved, they've already done an investigation. And in any event Zimmerman isn't a state actor, I'm not sure what there is for them to do here.

        Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

        by Pi Li on Sat Jul 13, 2013 at 09:18:44 PM PDT

        [ Parent ]

        •  Is that actually true? (2+ / 0-)
          Recommended by:
          According to Fish, Sychotic1

          The jury didn't rule on whether Zimmerman used justifiable force, only that the evidence presented was insufficient to prove beyond a reasonable doubt that he didn't use justifiable force. Am I wrong here? Does Florida law shift the burden to the defendant to prove justifiable force and prove an affirmative defense?

        •  This just isn't true (3+ / 0-)

          The jury made no such finding.

          The jury found he was not guilty - that is all.   There are many reasons that they could have come to this conclusion.

          They did not make a ruling on this particular issue.

          •  AFAIK, the jury doesn't have to make that finding (3+ / 0-)
            Recommended by:
            Victor Ward, VClib, ffour
            Read in all cases.
                If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

                However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.

            That was included in the instructions given to the Zimmerman jury.

            There is no check mark on the verdict form for "Not guilty by justifiable use of force". Just "Not Guilty". And it's true that we simply don't know at this point whether the jury believes Zimmerman's self defence story or not. They may have simply believed the state didn't prove the elements of the crime for which Zimmerman was charged (though without self defence, it's hard to imagine how they don't convict on manslaughter). I really don't know. I'm sure we'll learn more when they do their media interviews.

            But in any event, as far as I can see, that doesn't matter. For purposes of this statute, Zimmerman use of force for this event has been judged legally justifiable because that was an issue presented to the jury, which they were instructed on and evaluated their case on. Otherwise, I'm not sure what the point of the statute would be. I suppose you could say it's limited to a finding of justifiable use of force in a SYG hearing only. As I understand it, the the statute hasn't been tested that much, and their are cases working thought the system regarding it.

            Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

            by Pi Li on Sun Jul 14, 2013 at 07:20:30 AM PDT

            [ Parent ]

            •  Looks like you are wrong (0+ / 0-)

              They are saying they will fight a civil case with a SYG hearing which is what I and several others have been saying.

              It makes sense, how could you be prevented from a civil suit by a ruling in a criminal case which has a higher burden of proof?   It never made sense and the law everyone kept pointing to indicated that you were only blocked from civil suits if you got dismissed by a SYG hearing which is a preponderance of evidence standard like a civil suit is.

              What irritates me is the near certainty that there could be no civil suit was presented by some lawyers that post on here.

    •  Nothing in that Statute Says Anything... (1+ / 0-)
      Recommended by:

      ...about the effect of an acquittal in a criminal case on a subsequent civil action. All it does is establish a defense applicable in civil and criminal cases. Zimmerman can raise the defense in a civil suit, but he will bear the burden of proving it by a preponderance of the evidence.

      •  They can still file a lawsuit.... (1+ / 0-)
        Recommended by:

        ...but Zimmerman's counsel will undoubtedly make a motion for dismissal under 776.032.   Such a motion is decided pre-trial.  If the judge agrees that Zimmerman acted in what he believed was self defense, the case is dismissed and dies a violent death.  A jury never even hears it at all.    

        Such filings are de rigueur these days in Florida.  Even when the defense counsel does not expect it to work, they introduce it as a means to get it in there for a potential grounds for future appeal.

        Now, such a motion could fail.   I wouldn't want to make any wild ass guesses about that.  But my suspicion is that unless they can find standing in the Federal Courts, or the DOJ goes after a civil rights prosecution, this is probably over.  

      •  And I think the matter that would be up for debate (0+ / 0-) whether Zimmerman was the aggressor or not.  

        You might get some mileage there with the judge, if you can show that there are legitimate questions as to whom the aggressor was.  

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