CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, July 16, 2013

Zimmerman, Provocation, and Self Defense

Eugene Volokh has a post on this topic at The Volokh Conspiracy

This is an interesting and complicated question, which Prof. Alafair Burke (Huffington Post)discusses in some detail; I thought I’d also discuss it, with some overlap with Prof. Burke’s analysis.

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But what if D does something that’s noncriminal, but nonetheless foreseeably triggers a violent reaction by V, and then D uses deadly force to protect himself against that reaction? 

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The general answer in most states, as best I can tell, is that the law tends to conclude that D loses his right to lethal self-defense on grounds of provocation only if he had the specific purpose of provoking V into threatening D with death or serious bodily injury, so that D would have an opportunity to kill or seriously injure V. If D simply knew that it was very likely that V would react violently, that is not enough.

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The New Jersey Model Criminal Jury Charge provides:
"Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her."

Picking a fight vitiates even reasonable use of deadly force. Since Zimmerman set out to stop the "punk..a*hole" of the sort that "always gets away" a jury could reasonably conclude that in going armed for such purpose Zimmerman intended harm and provoked the fight.
Ironically the best self-defense case was Martin's. Under Florida law he could have justifiably stood his ground, and if he believed the armed Zimmerman was a threat, shot him dead. That's where open carry and stand your ground laws bring us.

Posted by: George Conk | Jul 16, 2013 9:31:00 PM

It seems to me that the question of whether or not Zimmerman was the initial aggressor under Florida law and the Gibbs case is not to be answered based on what Martin believed, reasonably or otherwise. If Martin had survived the encounter and had claimed self defense for throwing the first punch (assuming that's what happened) the relevant question (roughly) would be whether at that time he reasonably believed he was faced with the need to use the force he used in order to avoid being the victim of whatever force he was being threatened with. Based on what I heard of the trial testimony I have a hard time believing that Zimmerman was the initial aggressor under Florida law. Indeed, the trial judge did not believe the state had presented enough evidence even to give any such instruction to the jury.

Posted by: Stephen P. Garvey | Jul 17, 2013 8:01:08 AM

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