George Zimmerman to Appeal Recusal Denial
He told reporters today that he believes the facts of the case show his client didn't have any option to retreat rather than shoot.I agree. But he had no duty to retreat under Stand Your Ground. If O'Mara is discussing a "duty to retreat", I would think he's not talking Stand Your Ground, but traditional self-defense. (I didn't hear the press conference, but the media is reporting he said he's not proceeding under SYG but self-defense, and intends to argue it at a pre-trial hearing.) Earlier post below:[More...]
"I think the facts suggest in this case that what probably happened was that my client was reacting to having his nose broken" while lying on his back being pummeled, O'Mara said.
Mark O'Mara is expected to make an announcement shortly in the George Zimmerman case. He's also scheduled a press conference for this afternoon. Update: Changed now to just a press conference, set for 1:45 pm ET.
The mainstream media is saying they have no idea what it's about.Update: O'Mara is right. He can seek immunity based on self-defense without invoking Stand Your Ground. Three statutes are involved:
—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, 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 prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s. 776.013.
(3) 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.and
(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 used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.The only difference the aggressor statute, 776.041 makes is that should he be found to be the aggressor (which I don't think he is), he would have a duty to retreat if possible. The aggressor can use the justification in 776.012 even though he provoked the use of force against him so long as:
(a) Such 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;
When you are flat on the ground, beneath the person who is using force against you, and you can't get away or out from under them, and you believe you are in danger of serious bodily injury or death should the attack continue or they get hold of your gun, you have no means of escape. According to GZ, he tried to wriggle away and move his head to the grass, fearing he would lose consciousness, and that's when his gun became exposed and he felt Trayvon's arm reach towards it. According to GZ, he also cried out for help but no one came to his aid, they all went to call 911 instead. And according to Witness 6, he tried to sit up -- he saw his back lift up, but Trayvon prevented him. So he tried 3 avenues to escape the danger: wriggling away, crying out for help and trying to get up, and none worked.
My only question is why is O'Mara not using SYG? Zimmerman was not engaged in unlawful activity when he was hit by Trayvon, he was in a place he lawfully had a right to be, and his belief he was in danger of serious bodily injury or death if Trayvon's attack was not stopped was a reasonable one.
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