There is a lot of controversy surrounding the case involving the shooting of Trayvon Martin by George Zimmerman. Much of the controversy surrounds the alleged racial profiling that is believed to have taken place in the case. I have little interest in that subject. I am however very interested in the discussion that has surfaced regarding the ‘Stand Your Ground’ law in Florida, and how the media, lawyers, political pundits, special interest groups, and the police are choosing to interpret Florida’s ‘Stand Your Ground’ law.

The information we are getting today about the ‘Stand Your Ground Law’ in regards to the Trayvon Martin murder investigation is tainted by a political debate. The law appears to be quite clear on its face. The special interest groups have gotten involved though, and each has its own agenda to push.

The special interest groups against the ‘Stand Your Ground’ law want you to believe that the law protects anyone who claims self-defense from being arrested or prosecuted. That just isn’t the case.

For the record, I am not a Florida attorney, and I have not reviewed the case law in Florida. I am a criminal defense attorney in Boise ID. However this case has caught my attention and curiosity, so I looked up the statute and the following is what I found.

Florida’s Stand Your Ground Law is laid out in Florida Statute 776.012. What this section of Florida’s statute does is defines the type of situation that would justify deadly force. It says a person is justified in using deadly force when, “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.” The statute also says there is no duty to retreat in order to protect yourself. In other words, you may “stand your ground”.

The part of the statute that is raising controversy is Florida Statute 776.032. This statute grants immunity to anyone who defends themselves from “the imminent commission of a forcible felony.”What this means is, the one who defended himself is “immune from criminal prosecution and civil action for the use of such force”.

Criminal prosecution is defined as “arresting, detaining in custody, and charging or prosecuting the defendant. ”That is why George Zimmerman was not arrested. Apparently when the police first investigated the shooting, there was only one eyewitness, and that witness claimed to have seen George Zimmerman with his back on the ground, and Trayvon Martin on top of George Zimmerman attacking him. Now there appears to be a second eyewitness that claims the opposite, but this witness did not immediately come forward.

What the immunity law does NOT mean is that if you want to avoid arrest, just claim it was self-defense and the police cannot arrest you. In fact, the statute clearly states that the police may investigate the use of force and may arrest the suspect if “it determines that there is probable cause that the force that was used was unlawful.”

In other words, the statute grants the police the power to arrest any suspect if they have probable cause that the force that was used by suspect was unlawful. In reality this is how the law works in any state, or at least the way it should work. If you do not have probable cause to arrest a suspect, then you do not and should not arrest them. What this means is that if George Zimmerman should not have been arrested in Florida under Florida’s law, then he should not have been arrested in any state of the union that has a self-defense statute (every state in the union) with an accompanying ‘stand your ground’ component (most state’s in the union).Conversely, if George Zimmerman should have been arrested anywhere else in the United States, he should have been arrested in Florida. Florida’s immunity law really adds nothing to the current state of the law in most states.

In George Zimmerman’s case, those against him complain that if there were an attack on George Zimmerman it is only because Trayvon Martin was defending himself from George Zimmerman’s initial provocation (stalking unarmed Trayvon Martin through the neighborhood with a loaded weapon). Many have seen this fact as testing the outer limits of the ‘Stand Your Ground’ law.

Interestingly enough, the statute deals with this very circumstance. (Funny the things you can learn by going to the source.)Florida Statute 776.041 says that if a would-be-defender provokes the initial attack against his person, then the ‘stand your ground’ justification is not available to the would-be-defender.

There are two exceptions to the rule that an initial aggressor can no longer claim self-defense as a justification for lethal force.

The first exception outlined in Florida Statute 776.041(2)(a) says that an initial aggressor is justified in using lethal force against their attacker when the force against them is so great that the initial aggressor “reasonably believes that he or she is in imminent danger of death or great bodily harm . . .” AND “has exhausted EVERY other reasonable means to escape such danger . . .” (emphasis added)

The second exception outlined in Florida Statute 776.041(2)(b) says that an initial aggressor is justified in using lethal force against their attacker when the initial attacker withdraws from the fight and “indicates clearly to the assailant that he or she desires to withdraw and terminates the use of force, but the assailant continues or resumes the use of force.” Also such termination of violence by the initial aggressor must have been made “in good faith”. In other words, you cannot be pretending to withdraw, or sarcastically withdraw.

Both of these exceptions make sense. If you caused the assailant to attack you, and you would terminate the encounter if you could, and/or use some other force if you could, but none of those options are available to you, then we give you the right to save your life. It also makes sense that if you in good faith withdraw, and make it clear to the assailant that is what you are doing, and the assailant continues to try to kill you, a reasonable person would defend himself or herself with reasonable force to stop the person.

Florida’s law is not as controversial when you break it down for what it is, rather than catch the talking points on Fox News or MSNBC.

George Zimmerman is walking free not because of the ‘Stand Your Ground’ law, rather he is free because the police made an initial determination that they did not have probable cause to believe that the force George Zimmerman used against Trayvon Martin was unlawful. Chances are George Zimmerman will be arrested if the prosecutors try the case before a Grand Jury and get an indictment against George Zimmerman. If indicted George Zimmerman will either claim that he did not initially assail Travyon Martin, and was attacked by Trayvon Martin, or in the alternative he will argue that even though he initially assailed Trayvon Martin he attempted to terminate the encounter but was unable to, and faced certain death himself.