MOBILE USERS: m.isthmus.com
Connect with Isthmus:         Newsletters 
Sunday, December 28, 2014 |  Madison, WI: 27.0° F  Overcast
Collapse Photo Bar

The Trayvon Martin & George Zimmerman Story

If it's news, but not politics, then it goes here.

Re: The Trayvon Martin & George Zimmerman Story

Postby Meade » Thu Aug 09, 2012 12:18 pm

snoqueen wrote:All we know now is the whole thing is headed for the Supreme Court at some point.

snoqueen, you think Obama and Holder should bring it as a civil rights case?
Meade
Forum God/Goddess
 
Posts: 3341
Joined: Fri Apr 23, 2010 6:26 pm

Re: The Trayvon Martin & George Zimmerman Story

Postby snoqueen » Thu Aug 09, 2012 3:04 pm

I think this one should be done from the bottom up not the top down, and I think a coordinated and planned effort, like the one Thurgood Marshall and others used to bring various eduction cases to the court for civil rights, is the way to go. It's a long process involving testing various angles at lower levels until a strategy emerges based on the rulings obtained. That way you get a good solid foundation of precedent.

Any federal issues involved have to emerge during preliminary litigation. Is this a civil rights matter, due to inequities in application of the laws? Is it a constitutional matter? Is it best handled state-by-state, never even getting to the SC? We won't know until the process unfolds. It could take years.

But that's the way that has the best chance of results that stand up over time.
snoqueen
Forum God/Goddess
 
Posts: 11856
Joined: Fri Feb 14, 2003 11:42 pm

Re: The Trayvon Martin & George Zimmerman Story

Postby Dangerousman » Thu Aug 09, 2012 3:06 pm

I think some of you paint the concept of "stand your ground" with too broad of a brush. There may be some variations from state-to-state, but in general I believe it means this:

There are two major elements of using self-defense as a legal defense:

First you have to establish that you were unlawfully interfered with or in reasonable fear of bodily harm. And when making a claim of self-defense that involves the use of deadly force, the person making that claim needs to establish that they had a reasonable belief or fear of imminent death or great bodily harm. This is because in most places deadly force is only justified when faced with a threat of great bodily harm or death. Lesser threats won't justify deadly force in most jurisdictions although there are a handful of states that allow deadly force to protect your property. In summary, you'd want to be able to convince a judge, jury, prosecutor, whoever.. that if they were in your shoes under those circumstance, they would hold the same fear or belief.

Secondly, in all self-defense claims the next question is whether the amount of force used in defense was "reasonable." By "reasonable amount of force" it is meant that the person used the minimum amount of force needed to stop an illegal interference with their person or to prevent physical harm.

This is where the "stand your ground" concept comes into play. It comes into play here because in non-stand-your-ground jurisdictions the argument could possibly be made that "While Mr. X had a reasonable fear of harm or was unlawfully interfered with, Mr. X used more than a reasonable amount of force to defend himself from the interference or harm because he was in a situation that allowed him the option of running away or otherwise escaping." So what "stand your ground" laws do is nothing more than remove the " was there the ability to escape rather than fight?" question from the the overall question of "reasonable level of force." The rationale, I believe, is that the courts or legislature in "stand your ground" states feel that if you are lawfully present at the time and place of the confrontation, you should not be legally obliged to retreat from that place when faced with unlawful interference. It certainly doesn't mean that any two people who are both lawfully present in a location can rely on a "stand your ground" law to justify using force against the other. So it may help to keep in mind that "stand your ground" applies to the second area of self-defense: the "reasonable amount of force."

Naturally there are other concepts that often come into play and possibly complicate things. Being the instigator or provoking the attack on you is one complicating factor. It may have an effect on a claim of self-defense, but not always. Read the Wisconsin statutes 939.48 to get an idea of the ins and outs under Wisconsin law of "provocation." The "disparity of force" concept may also come into play. Although it's not really discussed in the statutes it's an element of the "reasonable fear" part of the self-defense equation. I'm almost 6 feet tall and around 215 pounds and in good health, so my fear of harm from a single 5'6" 150 pound unarmed punk wouldn't be the same as what a person confined to a wheelchair may experience. The shifting disparity of force changes means the level of force that I might be justified in employing against the punk would be a different level for the wheelchair bound person since that same punk presents a greater potential threat of harm to the disabled person than to me. Put a deadly weapon like a knife, gun or club in the punk's hands and he becomes a deadly threat against any human being regardless of size or strength.

The issue of whether a person is granted immunity from civil liability after employing a successful self-defense legal defense is really a separate issue from "stand your ground." It's certainly not one of the essential elements of "stand your ground" laws although the language of immunity provisions may be included as a matter of convenience along with stand your ground or castle doctrine portions of the laws. But I see it as a completely separate issue because a state could have a stand your ground law that didn't address the question of civil liability. In fact that's pretty much what we had in Wisconsin up until recently.
Dangerousman
Forum God/Goddess
 
Posts: 2292
Joined: Tue Feb 06, 2007 12:28 pm
Location: Madison, WI

Re: The Trayvon Martin & George Zimmerman Story

Postby rabble » Thu Aug 09, 2012 3:21 pm

HawkHead wrote:In the above situation, what if the confrontation occured on a neutral site? Like walking on a sidewalk in the neighborhood.

Sno's right, nobody really knows and we'll find out as more cases grind through the system, setting precedents.

As dangermouse noted, some of us paint it with too broad a brush. Some of us probably still think we can take a hand gun over to our neighbor's driveway and shoot 'em if we don't like the noise.

And that's the problem with passing laws too fast with too many generalizations.
rabble
Forum God/Goddess
 
Posts: 6553
Joined: Tue Jun 10, 2008 7:50 pm

Re: The Trayvon Martin & George Zimmerman Story

Postby Dangerousman » Thu Aug 09, 2012 3:40 pm

rabble wrote:
HawkHead wrote:In the above situation, what if the confrontation occured on a neutral site? Like walking on a sidewalk in the neighborhood.

Sno's right, nobody really knows and we'll find out as more cases grind through the system, setting precedents.

As dangermouse noted, some of us paint it with too broad a brush. Some of us probably still think we can take a hand gun over to our neighbor's driveway and shoot 'em if we don't like the noise.

And that's the problem with passing laws too fast with too many generalizations.


Well that retired fireman, I forgot to mention, stood in the public street the whole time. He was lawfully present there and not trespassing. But when I heard the video of the encounter he does seem to express a distorted view of self-defense. It was almost as if he was going out of his way to set up a self-defense plea before he shot the guy. He made what I took to be insincere statements about "fearing for his life." If he was truly fearing for his life during the time everyone there was standing around a jawing back and forth he probably would have done the prudent thing and walked back home rather than carry on an extended conversation with the police dispatcher with one ear and another conversation with the annoying neighbors in the other. It seems likely that someone lunged at him, which is truly a stupid action to make and possibly by itself could have justified him shooting; but I think the old guy did himself in with all preliminary verbal baloney. Putting the shooting into the overall context of the encounter made him come across as a crotchety and stubborn ass looking for a fight.
Dangerousman
Forum God/Goddess
 
Posts: 2292
Joined: Tue Feb 06, 2007 12:28 pm
Location: Madison, WI

Re: The Trayvon Martin & George Zimmerman Story

Postby HawkHead » Thu Aug 09, 2012 4:13 pm

Dman-

I can't disagree more with your post above. If, like the Zimmerman/Martin case, there are no "real" witnesses to the conflict the shooter that lives can make up any story them want. Like he was reaching into his wasitband.

In the firefighter case I am guessing that if he didn't videotape the event and call 911 he would have been aquitted of the charges. Just a guess but I think it is fairly well based. He might have had issues with all of the eye witnesses but the tape kind of shows he was looking for the fight.
HawkHead
Forum God/Goddess
 
Posts: 914
Joined: Tue Jun 05, 2012 1:29 pm

Re: The Trayvon Martin & George Zimmerman Story

Postby Dangerousman » Thu Aug 09, 2012 4:37 pm

HawkHead wrote:Dman-

I can't disagree more with your post above. If, like the Zimmerman/Martin case, there are no "real" witnesses to the conflict the shooter that lives can make up any story them want. Like he was reaching into his wasitband.

In the firefighter case I am guessing that if he didn't videotape the event and call 911 he would have been aquitted of the charges. Just a guess but I think it is fairly well based. He might have had issues with all of the eye witnesses but the tape kind of shows he was looking for the fight.


Hawkhead, what part are you disagreeing with? I wrote nothing about people lying when there are no witnesses. No law can change the possibility of that happening. "No officer, I didn't see the speed limit sign because I had a bug fly into my eye back there." "I'm sorry I thought I gave you a 100 dollar bill, not a ten."

It's a fact of life that witnesses might be there, might not. Who knows? When it's a crime being committed, there's a good chance there will be no witnesses present since criminals tend to prefer fewer or no witnesses whenever possible. Why do you suppose more people get mugged at night? It's not because criminals and potential victims only exist after dark, that's for sure.

In the Zimmerman/Martin case, there actually were quite a number of witnesses. Maybe they didn't witness everything, individually or collectively, but they did witness certain aspects of the encounter and that's something by which one can evaluate the blanks that need to be filled in. Witnesses can be good or bad for your case, as can a lack of witnesses. Regardless of your actual guilt or innocence.

Zimmerman told the police when he was on the phone, long before the confrontation, that Martin was reaching toward his waistband. Why would he even say that if it wasn't true? It's not like he knew there would be a fight later, so it seems unlikely he was making that up to set up a defense for a future shooting that was far from certain.
Dangerousman
Forum God/Goddess
 
Posts: 2292
Joined: Tue Feb 06, 2007 12:28 pm
Location: Madison, WI

Re: The Trayvon Martin & George Zimmerman Story

Postby HawkHead » Thu Aug 09, 2012 4:47 pm

I disagree with the shooter has to convince the judge/jury that they would have done the same thing in their shoes argument. If one party is dead it is pretty hard to hear the other side's point of view.

I can't think of anyone that wouldn't try to use the stand your ground defense in any shooting death other than in a premeditated situation.

Zimmerman could have said that Martin was reaching in his waistband to show selfdefense and not get convicted. What if Zimmerman was the one who reached for his gun on his waistband and that is why Martin hit Zimmerman?

We will never know for sure because Martin (or the dead party in any case) can't tell anyone!
HawkHead
Forum God/Goddess
 
Posts: 914
Joined: Tue Jun 05, 2012 1:29 pm

Re: The Trayvon Martin & George Zimmerman Story

Postby jman111 » Thu Aug 09, 2012 4:53 pm

Dangerousman wrote:I wrote nothing about people lying when there are no witnesses. No law can change the possibility of that happening.

Hence the problem with the automatic presumption aspects of these types of laws.

Act 94:
...the actor is presumed to have reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person.
jman111
Forum God/Goddess
 
Posts: 3126
Joined: Wed Aug 12, 2009 12:43 pm
Location: Dane County

Re: The Trayvon Martin & George Zimmerman Story

Postby Henry Vilas » Thu Aug 09, 2012 5:05 pm

A variant on the axiom that "dead men can tell no tales".
Henry Vilas
Forum God/Goddess
 
Posts: 20286
Joined: Wed Sep 04, 2002 8:57 pm
Location: Name sez it all

Re: The Trayvon Martin & George Zimmerman Story

Postby DCB » Thu Aug 09, 2012 5:14 pm

HawkHead wrote:
Zimmerman could have said that Martin was reaching in his waistband to show selfdefense and not get convicted. What if Zimmerman was the one who reached for his gun on his waistband and that is why Martin hit Zimmerman?

According to D'man, that's exactly what he is claiming:
d-man wrote: From the Zimmerman 911 call just after he reported that Martin was coming towards him: "He's got his hand in his waistband." The waistband is a place where criminals frequently carry weapons.


Another good reason not to scratch your balls in public. You might get shot.
DCB
Forum God/Goddess
 
Posts: 2801
Joined: Fri Jun 20, 2008 5:08 pm

Re: The Trayvon Martin & George Zimmerman Story

Postby Dangerousman » Fri Aug 10, 2012 12:32 am

jman111 wrote:Act 94:
...the actor is presumed to have reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person.


Keep in mind that provision only applies to three places: home, business and vehicle; AND, it only applies in cases where someone was in the process of a forcible and unlawful entry into one of those three places.

I'm not sure it changes things very much, if at all, because I doubt that you'll find many cases prior to this law when a person was criminally prosecuted or found liable in civil court for using deadly force when resisting an unlawful and forcible entry into one of those places. Do you think if someone is breaking into a dwelling it is reasonable to require the homeowner or resident to somehow discern the intentions of the person who is breaking in before using force in defense? "Is he only after my laptop and jewelry and cash? Or is he coming for me or my family?" What would you do? Stand back and wait to see if they're heading towards you or your TV or your child?
Dangerousman
Forum God/Goddess
 
Posts: 2292
Joined: Tue Feb 06, 2007 12:28 pm
Location: Madison, WI

Re: The Trayvon Martin & George Zimmerman Story

Postby Dangerousman » Fri Aug 10, 2012 1:03 am

HawkHead wrote:I disagree with the shooter has to convince the judge/jury that they would have done the same thing in their shoes argument. If one party is dead it is pretty hard to hear the other side's point of view.

I can't think of anyone that wouldn't try to use the stand your ground defense in any shooting death other than in a premeditated situation.


Well the other person isn't the one on trial so their point of view is irrelevant. If you plead self-defense it is based, in part, on what is going through your head, not the head of another person. Even if one makes a mistake, one can use a self-defense legal defense. A well-known example of this is the Amadou Diallo shooting by NYPD police who mistakenly believed Diallo was reaching for a gun when later it was found that had no weapons and was probably reaching inside his coat for his wallet.

So you may not like or agree with the "if it had been me I would have felt the same way" approach, but that is in fact the way the self-defense laws are written. If you look at the statutes in Wisconsin as an example, and they're pretty typical of self-defense statutes across the land, you'll see that the statute itself contains a definition of "reasonable belief:"

939.22(32) "Reasonably believes" means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.

That concept of reasonable belief then pops up in the self-defense statute itself:

939.48 (1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person.

The following annotation in the statutes explains further: "The reasonableness of a person's belief under sub. (1) is judged from the position of a person of ordinary intelligence and prudence in the same situation as the defendant, not a person identical to the defendant placed in the same situation as the defendant." State v. Hampton, 207 Wis. 2d 369, 558 N.W.2d 884 (Ct. App. 1996).

How would you rewrite the statute to eliminate the reasonable belief approach?
Dangerousman
Forum God/Goddess
 
Posts: 2292
Joined: Tue Feb 06, 2007 12:28 pm
Location: Madison, WI

Re: The Trayvon Martin & George Zimmerman Story

Postby snoqueen » Fri Aug 10, 2012 3:37 pm

I am not going to try a rewrite, but I'd like to see one that doesn't make it quite so easy for one person in a couple to murder the other in the privacy of their home and not face at least very serious, in depth investigation including possible charges. Those kinds of incidents are all different and deserve to be treated as such under the law.

I can't think of anyone that wouldn't try to use the stand your ground defense in any shooting death other than in a premeditated situation.


Sure. Your lawyer would be remiss if he/she didn't, in fact. It sounds like an excellent line of defense.

This is not what we want. Shooting somebody is serious business and there better be a good reason for doing it, a reason that will stand up to scrutiny by reasonable citizens who put themselves into the place of not only the shooter but the dead person. The way it looks now, a road rager could march up to another car and shoot the driver simply on the grounds he couldn't see the driver's hands so he felt "threatened." Come on. That's not a defense, it's a legally codified blanket excuse for murder.
snoqueen
Forum God/Goddess
 
Posts: 11856
Joined: Fri Feb 14, 2003 11:42 pm

Re: The Trayvon Martin & George Zimmerman Story

Postby Dangerousman » Fri Aug 10, 2012 4:01 pm

snoqueen wrote: The way it looks now, a road rager could march up to another car and shoot the driver simply on the grounds he couldn't see the driver's hands so he felt "threatened." Come on. That's not a defense, it's a legally codified blanket excuse for murder.


Sno, if you're sitting on the jury and the guy only testifies that "I couldn't see his hands, so I felt threatened and shot him" would you vote for acquittal? No, I didn't think so. Neither would I, if that's the sum of his defense. Why would you think anyone would be sympathetic to such an unreasonable action? If somebody is going to plead self-defense after shooting a person they better have something a lot more convincing than that to persuade the jury that the shooter held a reasonable belief that they were faced with imminent great bodily harm or death.

I highly doubt that a jury judging from "the position of a person of ordinary intelligence and prudence" is going to agree that, absent other factors, just being unable to see a persons hand is grounds for shooting that person. I don't have a great deal of faith in the intelligence of people, but even I won't accept that any honest jury would go along with that reasoning. Why would you?
Dangerousman
Forum God/Goddess
 
Posts: 2292
Joined: Tue Feb 06, 2007 12:28 pm
Location: Madison, WI

PreviousNext

Return to Headlines

Who is online

Users browsing this forum: No registered users and 5 guests

moviesmusiceats
Select a Movie
Select a Theater


commentsViewedForum
  ISTHMUS FLICKR
Created with flickr badge.

cron
Promotions Contact us Privacy Policy Jobs Newsletters RSS
Collapse Photo Bar