Zimmerman/Martin Shooting in Texas Analysis

[sjfcontrol]

I would like to start a discussion regarding what we currently understand from the Zimmerman/Martin shooting, as it would be analyzed under Texas law. I am doing this in a separate thread from the (currently 18 page) "Stand Your Ground in Danger" thread, since that thread is concerned with the actual case, and has become somewhat bloated. This thread (hopefully) will be less emotionally charged, as we are discussing a hypothetical situation in Texas. I do this so we don't get confused by laws that may be different in Florida than those we are most familiar with.

To start this, I am going to go through PC 9.31 (Self Defense) and PC 9.32 (Deadly Force In Defense of Person) step-by-step, as though I were a prosecutor trying to decide if the shooting of Martin by Zimmerman was justified or not.

PC 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.

The current story has Zimmerman on the ground, with Martin on top of him, pounding his head into the sidewalk. Zimmerman has a broken nose, was bleeding from the back of his head, and had water and grass stains on the back of his clothing. It would appear that Martin was using illegal force against Zimmerman. But was Zimmerman's use of force reasonable? We continue...

The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

Well, this section has to do with Castle Doctrine, and the commission of various crimes. There is no evidence that any of this section would apply to this case.

(2) [Force presumed reasonable if the actor] did not provoke the person against whom the force was used; and

Did Zimmerman, by following Martin, "provoke" him? "Provocation" is not defined in PC 9.01 (Definitions). I would argue that the act of following someone does not rise to the level of a provocation. A provocation would include Zimmerman "taunting" Martin with racial slurs or obscenities. There is no evidence that anything of that nature occurred. However, this is MY interpretation, so I will leave this question open. We will analyze the following sections considering both with and without provocation.

(3) [Force presumed reasonable if the actor] was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

Zimmerman was not otherwise engaged in criminal activity. He was where he was legally entitled to be. He had a license for the gun he was carrying. He was performing a service as a community watch member. He DID break some C.W. rules -- he was armed, and he followed Martin. He ignored the 911 operators suggestion that "We don't need you to do that" when he admitted to following Martin when asked. But NONE of these violate any laws. The worst that could happen for violating the C.W. rules would be expulsion from the Community Watch program. And the 911 operator did not give him an order. Officers are trained to give succinct, direct orders when necessary -- "Drop the GUN!" rather than, "We suggest you put that thing down". Seems to me even if the 911 operator had said, "Stop following the suspect, return to your car", would this have been a lawful order? What would have been the charge for ignoring such an order? He wasn't interfering with an officer, as there were no officers present. Is failure to follow a 911 operator's command a crime? I don't know, but it's very unlikely that failure to follow a 911 operator's suggestion is criminal.

(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;

Ah! So, even if Zimmerman HAD provoked Martin, (verbally, or simply by following him) that would NOT justify Martin's use of force against Zimmerman! Also, this part implies, but doesn't state, that provocation is primarily verbal. It would seem to me that "provocation by following" would be a lesser provocation (if one at all), than verbal (oral) provocation.

(2) [Use of force is not justified] to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

Nobody being arrested or searched here -- does not apply

(3) [Use of force is not justified] if the actor consented to the exact force used or attempted by the other;

Nobody agreed to get beaten-up here -- does not apply

(4) [Use of force is not justified] if the actor provoked the other's use or attempted use of unlawful force, unless:

OK -- we already discovered above that Martin was NOT justified in beating Zimmerman, even if Zimmerman provoked him (and we have no evidence that he did). However, was Zimmerman justified in using force against Martin (while Martin was beating him) if he had provoked Martin? Lets see what the exceptions are...

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

Zimmerman was on his back, being beaten by Martin. He was screaming for help -- this was heard on one of the 911 tapes. That sounds to me like he'd abandoned any encounter, and was attempting to communicate that. He couldn't just walk away as Martin was on top of him.
In fact, the current story has Zimmerman losing sight of Martin, and returning to his car. It would seem that Zimmerman had abandoned any encounter at THAT point. Then Marten approached Zimmerman from the rear, asked Zimmerman if he had a problem. When Zimmerman said "No", Martin said "You do now!" and punched Zimmerman in the nose, knocking him to the ground, and apparently breaking his nose.

That would describe an unprovoked attack by Martin on Zimmerman. Even if Zimmerman had provoked it by following Martin, he had broken off the encounter by returning to his car.

(5) [Use of force is not justified] if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

Well, PC 46.15 (Nonapplicability) (b)(6) clearly states that PC 46.02 does not apply to anyone properly carrying under a Concealed Handgun License. and
PC 46.05 deals with Prohibited Weapons (such as machine guns, or switchblades), and so doesn't apply here, either.

So, this says that even if Zimmerman (actor) had approached Martin to find out what he was up to ("Playing Cop"), and subsequently got into a tussle, Zimmerman WOULD STILL BE JUSTIFIED to use force, since he was not carrying an illegal weapon, and had a license to carry the weapon he was carrying.
I also point out that there is no evidence I've heard that indicates there was any direct confrontation between the two until Martin approached Zimmerman walking back to his car.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
[/auote]

Nobody here resisting arrest or search -- doesn't apply

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34. (Emphasis mine)

We will look at PC 9.32 in a minute (probably the next post)
PC 9.33 deals with defense of a third person, and doesn't apply here
PC 9.34 deals with use of force to prevent suicide or loss-of-life, and doesn't apply here.
So this says that to justify the use of Deadly Force (Zimmerman's), we must evaluate PC 9.32

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

OK -- this is "Stand Your Ground". It doesn't really seem to apply here. If the story is correct that Zimmerman was attacked by Martin while Zimmerman was returning to his car, then Martin actually STOPPED Zimmerman from retreating by approaching him, and then attacking him. This says you don't have to retreat (under the right conditions), but Zimmerman was ALREADY retreating.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

This last part is a bit confusing to me. However, since it would seem Zimmerman was ALREADY retreating, so it would seem that even if you DID consider whether he retreated, Zimmerman would be on the right side of that, too

CONCLUSION

In the above analysis, I see no legal justification for Martin's use of force against Zimmerman.
I DO find that Zimmerman was justified in the use of force against Martin, to repel Martins use of illegal force.
Now we need to determine if Zimmerman was justified in the use of DEADLY force in PC9.32


**** STAY TUNED FOR PC 9.32 ******

[sjfcontrol]

This is part 2 of an analysis of the Zimmerman?Martin shooting in Florida, as interpreted by Texas "Use of Force" laws.
Remember that this is a hypothetical situation, applying Texas law to an incident that happened in Florida. It is done this way because I (and many of the members of this board) are far more familiar with Texas law, than Florida's.

In Part 1 I analyzed PC 9.31 -- SELF DEFENSE
In that part, I concluded that Martin had no justification for the use of force against Zimmerman while Zimmerman was retreating to his car.
I also concluded that Zimmerman WAS justified in the use of force against Martin to repel Martin's use of illegal force.

Now we get to find out if the use of DEADLY force is justified when Zimmerman shot Martin. This is done by analyzing PC 9.32 DEADLY FORCE IN DEFENSE OF PERSON.
As we did in part one, we will analyze PC 9.32 step-by-step

PC §9.32. DEADLY FORCE IN DEFENSE OF PERSON.
(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and

OK -- We've already concluded in Part 1 that the use of force by Zimmerman was justified to repel Martin's use of illegal force

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

Did Martin's use of force against Zimmerman constitute DEADLY force? Deadly Force is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury" (PC 9.01(3)). You can cause death by pounding a persons head against the sidewalk. You can also cause serious bodily injury (TBI -- Traumatic Brain Injury). It would seem that Martin WAS using deadly force, and since we've already concluded that the force was illegal, it becomes "illegal Deadly Force". This clause is met.

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

None of those crimes were imminent -- doesn't apply

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(b)(1)(A) and (B) is again the Castle Doctrine, and non-applicable
(b)(1)(C) references the crimes above, and were not being committed.
So we haven't yet got a reason to "presume" justification

(2) [actor's use of Deadly Force presumed reasonable if actor] did not provoke the person against whom the force was used; and

Uh-oh. In Part one, I postulated that Zimmerman did not legally provoke Martin. But, I don't have a definition for the term: "provoke". As a layman, I would think that to provoke someone, you'd have to have some form of significant face-to-face confrontation. Shouting insults or profanities, for example, to be considered provocation. And we have no indication that any such confrontation happened between the two until Zimmerman was stopped on the way back to his car. Can following someone be considered provocation? If that is provocation, where does it end? In fact, under 9.31, we find that the use of force is still available after direct confrontation of a person ("sought an explanation from or discussion with the other person concerning...differences" (9.31(b)(5))). So apparently THAT is not considered "provocation". If "Hey! Who are you, and what are you doing?" isn't a provocation, how can following be?

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

Well, we covered this in part 1 -- still no criminal activity going on.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

Again, this is similar to 9.31(e), with the same arguments there

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

And this is the same as 9.31(f)

Conclusion:

In part one, I determined that Martin did not have justification to use force (and therefore used illegal force) against Zimmerman as he approached his car, after abandoning any confrontation or provocation created by following Martin.
I also determined that Zimmerman WAS justified in the use of force to repel Martin's use of illegal force.

In part two, I've concluded that whether or not Zimmerman was justified in the use of Deadly Force depends upon whether he "provoked" Martin. Regarding the use of (nondeadly) force, your right to self-defense is restored even if you've provoked the other person, if you break off or clearly communicate the intention to break off the confrontation, and your opponent continues the use of force. However, this restoration is not mentioned in the Deadly Force statues -- probably since once deadly force is employed, it's a little late to "abandon the confrontation".

Consider, also, what were Zimmerman's options? Was he supposed to realize while being pummeled by Martin, that he may have provoked him by following him, and therefore he'd just have to lay there and take it until Martin gave up? Apparently he didn't shoot until Martin tried to take his gun. Is he supposed to just lay there and allow Martin to take it? At that point, there was only one option open to him. And if he HADDN'T had a gun with him that night, he could be dead now, and Martin facing murder charges.

And in closing, I'd like to make a comment to all those who claim if Zimmerman had just followed the rules, and/or done what the 911 operator told him to do (the operator didn't tell him to do anything), the whole confrontation would not have occurred. Well, that's probably true, but it's a straw-man argument. I can probably list 500 different things either of the individuals could have done, or other people could have done that would have prevented the situation. I could even claim it's Martin's schools fault, since if they didn't have a no-tolerance policy regarding empty marijuana baggies, Martin would not have been expelled, and therefore would have been in bed on a school night at his mother's house, instead of wandering the neighborhood at his father & stepmother's.

Note that this entire analysis is based upon MY understaing of the situation as it's being reported now. Any new information that comes to light may alter the conclusions.

[bayouhazard]

Suppose a police officer at a neighborhood meeting suggests women shouldn't jog alone at night.

If a women is attacked while jogging alone at night, does she lose the ability to claim self defense? I don't think so.

If she's wearing tight clothes and the assault is sexual, did she provoke the attack? I don't think so.

In Texas.

[mamabearCali]

Good Analysis. Again like you said if following someone is "provoking them" then there might be a half a hair of doubt. I would guess most reasonable people would not see following someone that is unknown and acting suspiciously for observation as provocation. There would have to be some amount of contact, a confrontation beyond a few tense queries.

[The Annoyed Man]

Joe Horn.

Zimmerman would walk.

[Keith B]

sjfcontrol,

I think you are over analyzing the situation.

[sjfcontrol]

sjfcontrol,

I think you are over analyzing the situation.

It's the engineer in me.

[jimlongley]

Gordon Hale III

Zimmerman would walk, eventually.

[The Marshal]

Thanks, sfjcontrol!
It was a good read through the law for this situation

[philip964]

As you have laid it out it seems fairly cut and dry. Thank you for the analysis, I will assume the Florida Attorney General will come up with the same conclusion. That is if politics are left out.

However, a Representative in the United States House of Representatives wore a "hoodie" and sunglasses to address Congress today and was removed from the chamber. (no hats may be worn in Congress)

So I believe politics will be involved in any resolution.

Even if not charged or found not guilty, it appears that this man's life will be in danger for some time.

[mamabearCali]

Even if not charged or found not guilty, it appears that this man's life will be in danger for some time.

Sorry to say he is going to have to move, possibly to a whole new state. Time to look for a new job and he needs that CHL now more than ever.

[sjfcontrol]

By the way, I forgot to mention that even if Zimmerman IS determined to have provoked Martin, all that would mean is that the shooting is not "presumed justified".

He *should* still get a trial to determine if other factors will justify the shooting. He may lose the automatic defense, but that DOES NOT MEAN he's automatically guilty of anything. He gets a trial to determine that -- if the prosecutor thinks there is enough evidence to take him to trial and convict him. He's still presumed innocent...

[speedsix]

...saw the video of Z in cuffs going from the squad car into the police station on two stations tonight...no visible sign of injury to either nose or back of head...not even a band-aid...unlikely that a medic would not put some kind of covering on the head "injuries"...we still don't have the truth about what happened after they began to interact...maybe some more witnesses will make an entrance...

http://abcnews.go.com/WNT/trayvon-marti ... 3POHTES38c" onclick="window.open(this.href);return false;

[ScooterSissy]

...saw the video of Z in cuffs going from the squad car into the police station on two stations tonight...no visible sign of injury to either nose or back of head...not even a band-aid...unlikely that a medic would not put some kind of covering on the head "injuries"...we still don't have the truth about what happened after they began to interact...maybe some more witnesses will make an entrance...

The video looked pretty blurry to me, and was what - 8 hours after the shooting occurred.

Any theories on why the police would have lied about his injuries?

[speedsix]

...police reports "leaked" to the press don't match with statement by detective who said he didn't follow...there are at least two "official" stories...that don't match...plus witnesses and 911 tapes...that don't match up in a lot of ways...
...theory? yep...his dad is a local magistrate* and mom works for the clerk of courts...we may never get the truth of what happened...I just hope the grand jury gets enough to make a correct decision...

*A-R corrected this "fact"...keep reading...