Tag Archive | Safety

The Volokh Conspiracy – On Zimmerman “Provocation and Self-Defense”

Provocation and Self-Defense

 • July 16, 2013 12:15 am

One recurring comment I’ve heard on the Zimmerman case is that Zimmerman was in the wrong for following Martin in the first place, and therefore couldn’t use deadly force when Martin reacted violently in response (perhaps in what Martin perceived was self-defense). 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.

To begin with, it’s clear that the right of lethal self-defense is lost in some situations. If D criminally attacks V with a knife, V takes out a gun, and D stabs V, D can’t defend himself by saying “I was in reasonable fear of death or grave bodily harm.” That risk of injury happened because D was committing a serious crime in the first place.

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? Has D also lost the right to lethal self-defense, because he could have avoided the need for such deadly force by avoiding the earlier act — or because he more broadly “provoked” the occasion for such deadly force? (Note that this is a separate kind of provocation from that which reduces a murder charge to voluntary manslaughter; though the label is the same, the legal rules and consequences are completely different.)

Let’s consider a few scenarios:

1. D knows that V is insanely jealous, and has threatened to attack D for dating V’s ex-girlfriend. Nonetheless, D keeps dating her, and even appears with her in places where V might well see them. V attacks D in a way that threatens D’s life, and D shoots V.

2. D knows that V hates him, and that V is likely to attack D with deadly force when V sees him. (Maybe V is a rival gang member, or maybe V just hates D.) Nonetheless, D keeps going (legally armed) to a public place where he knows V periodically hangs out. V attacks D in a way that threatens D’s life, and D shoots V.

3. D, who is black, knows that there’s a race riot outside the house at which he is staying, and the mob had been baying for his blood before he ran into the house. But D goes (legally armed) onto the street, rather than staying in the house or escaping through a back alley. See Laney v. United States, 294 F. 412 (D.C. Cir. 1923). V, one of the white rioters, attacks D in a way that threatens D’s life, and D shoots V.

4. D goes to a brothel, where she knows her husband V is visiting a prostitute, and claims that “she went to this house to persuade her husband to leave there and return home with her.” The husband, however, who had in the past “threatened to kill her if she came to this house for him” and had “beaten her on several occasions,” attacks her in a way that threatens D’s life, and D shoots V. See Moore v. State, 160 S.W. 206 (Ark. 1913) (for whatever it’s worth, D and V in this case were both black).

5. D, “a 40-year old black woman, saw an elderly white man and woman sitting on a bench outside an apartment building and said to them, ‘Good morning. How are you?’ When the couple did not respond, she asked why they did not return her greeting. The woman, [V], said to appellant, ‘Get away from here you dirty nigger, you don’t belong here.’ Appellant responded with a racial slur and an obscene ‘mooning’ gesture and the two women wound up in a physical altercation. According to appellant and her witness, … [V] got up from the bench, approached appellant, and started swinging at her. In response, appellant stepped back and pushed [V]. [V] staggered back and then fell down on some shrubbery…. Within a half hour, [V] died of heart failure.” See Gibbs v. State, 789 So. 2d 443 (Fla. Ct. App. 2001) (a criminally negligent injury case rather than a murder case, but one in which the self-defense was nonetheless in play).

What should the law do in these situations? 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.

Interestingly, the cases cited in items 3 and 4 are departures from this general rule. In Laney, the court held that Laney wasn’t entitled to a self-defense instruction because he knew that it was “almost inevitabl[e]” that a deadly confrontation would arise, and “had every reason to believe that his presence [on the street] would provoke trouble.” In Moore, the court seemed to go even further, taking the view that Moore wasn’t entitled to the instruction because she was “expecting trouble.” (The court also said she was “probably looking for [trouble],” but if it’s just a matter of probability, that should be a matter for the jury to decide; the court thus seemed to take the view that D’s “expecting trouble” when she enters a particular situation armed is sufficient to strip her of her right to use lethal force in self-defense if serious trouble does arise.)

But from the cases that I’ve read — and I’ve read quite a few — D.C. and Arkansas are outliers on this score, and usually the right to self-defense is lost only if D acted with the specific purpose to provoke a violent attack. The Model Penal Code takes this view as well.

Now on to Florida. Gibbs is a Florida precedent, and it was interpreting the Florida provocation statute, which has not been changed by the Stand Your Ground law:

The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(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; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Note that “provokes” here does not indicate whether D only loses his right to self-defense if he has the specific purpose of causing V to use force against D, or if it is enough if D acts in a way that he knows (or should know) is highly likely to cause V to use force against D. But Gibbs reversed D’s conviction, for the following reason (emphasis added):

The instruction stated that appellant could not defend herself with non-deadly force if she “initially provoked” the victim. By not limiting provocation to the use or threat of force, the court failed to make the jury aware that the word “provoked,” as used in the instruction, did not refer to mere words or conduct without force. Stated another way, the instruction given by the court eliminated the use of non-deadly force in self-defense if there was any provocation by the defendant — no matter how slight or subjective the provocation. By that standard, a mere insult could be deemed sufficient to prohibit defending oneself from an attacker.

In this case, appellant’s self-defense was based on testimony that the victim verbally attacked her and then aggressively approached and swung at her. According to the defense, it was only then that appellant pushed the victim and used some force against her. Because the instruction did not limit provocation to some force or threat of force, the instruction could have misled the jury to believe that appellant’s pointedly asking the victim why she failed to acknowledge her greeting and/or appellant’s racial retorts and obscene gestures were sufficient provocation to preclude appellant from defending herself from an attack by the victim.

It thus appears that the law in Florida is that the defendant loses his self-defense rights on “provocation” grounds only if he is involved in a “forcible felony” orprovokes the target by “force or threat of force.” (Gibbs apparently had no occasion to resolve the separate question of whether purpose to trigger forcible reaction or mere knowledge of a high likelihood of such reaction — or even something less — is required for “provocation.”) And, as Prof. Burke points out, it seems to have beenGibbs that led the trial court to not give the “provocation” instruction. Prof. Burke, a former prosecutor, opines that the denial of the provocation instruction “may have been the moment when Zimmerman got acquitted.”

All this is not a question of stand your ground vs. duty to retreat. The provocation limitation on self-defense rights, to my knowledge, exists in all states; it certainly exists in Florida. Conversely, even states that impose a duty to retreat generally apply the “provocation” limitation only in situations where the defendant had the purpose of triggering a serious attack by the target. There are some decisions, especially in Arkansas and D.C., that read the “provocation” limitation more broadly; but they seem to be the exception.

Provocation is a separate question from the duty to retreat. And if we are to talk about whether Zimmerman should have been convicted on the grounds that he shouldn’t have confronted Martin in the first place, and that he was more generally “looking for trouble” (see Moore and Laney), we should be talking about the provocation limitation and not the Stand Your Ground law.

Alabama’s Self Defense Law and Stand Your Ground Law

With the trial and then verdict in the case of George Zimmerman there has been a lot of discussions about the law of Self Defense.

In Alabama the Self Defense law has been modified to give people more rights to protect themselves, their home and other people.  We have a “Stand Your Ground” provision in the law. The provision states that “ is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person… ”  the criteria is listed in the law below.  The law goes even further and states “a person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.

Presumption and immunity are a strong words and are a strong defense if every charged with a crime or sued, but the law has carved out several areas that the presumption and immunity are lost.

They are:

The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used

The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity;

The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties;

The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;

The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.

This law is very strong if determined the use of force was justifiable, but that does not mean a person will not be charges with a crime, just gives the person a strong defense. You will need to get a lawyer who will aggressively use the law before it gets to the trial stage.  I have had several case where a client was charged, but by invoking the law, the charges were either dropped or did not come out of the grand jury.

Know the law, know your rights and make sure you hire an aggressive attorney if you find yourself in this situation.

13A-3-23. Self-defense — Defense of others.

  • (a)  A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is:
    • (1)  Using or about to use unlawful deadly physical force.
    • (2)  Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling.
    • (3)  Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape or forcible sodomy.
    • (4)  In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring. The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if:
      • a.  The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
      • b.  The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;
      • c.  The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
      • d.  The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.
  • (b)  A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.
  • (c)  Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if:
    • (1)  With intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person.
    • (2)  He or she was the initial aggressor, except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person nevertheless continues or threatens the use of unlawful physical force.
    • (3)  The physical force involved was the product of a combat by agreement not specifically authorized by law.
  • (d)  A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
  • (e)  A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.

Locked doors, safety training and remote car starters go a long way to protect lawyers, expert says

LAW PRACTICE MANAGEMENT

Posted Feb 13, 2013 8:57 AM CST

After this week’s courthouse shootings in Delaware as well as other recent high-profile slayings including the execution-style killing of a Texas prosecutor and an opponent’s fatal attack on a lawyer and clientleaving a mediation session in Arizona, many are wondering what can be done to stop such violence.

The jury is still out on whether attacks in a legal setting are on the upswing. The executive director of the state bar of Arizona, John F. Phelps, says in an opinion piece published by the Arizona Republic that a survey done by a Utah lawyer suggests there has been an increase. And, following the death of lawyer Mark Hummels, who was killed last month by an opposing party in a Phoenix mediation matter, the president of the State Bar of Arizona plans to ask its 22,000 members whether they have been threatened or attacked.

Anthony C. Roman, who heads a New York firm that does investigative work for corporations and insurance companies, tells the ABA Journal he believes there is simply more publicity about such attacks than there used to be.

Regardless of who’s right, however, there can be no disagreement that any level of violence against attorneys and others involved in the legal system is unacceptable. There’s also little, if any question, about who’s most likely to be targeted: Criminal defense lawyers, family law attorneys, litigators and others involved in dispute resolutions in which individuals’ emotions may run high.

Roman says his firm is regularly called upon to offer safety advice to attorneys and law firms, as well as other businesses, and he had a number of suggestions about best practices that should be implemented. However, privacy advocates may quail at some of his ideas.

First, he says, lawyers involved in any kind of trial or dispute resolution practice need to understand that they—and potentially their families—are in a special-risk category of potential targets for harassment or worse.

Second, it’s important to be aware of one’s surroundings and alert to signs and symptoms of agitation, so they can be dealt with before they escalate. Many people do these things instinctively, but training can help individuals act optimally.

Safety measures for law firms, like courthouses, include secure doors that are not open to the public unless and until individuals are OK’d by reception personnel, Roman says. Once buzzed in, visitors should always be escorted and should wear a color-coded badge, and law office workers at all levels should be trained to politely question anyone who is not wearing a visitor’s badge.

Optimally, both courthouses and law firms would have perimeter cameras equipped with smart technology that allows them to recognize license plates and faces.

In addition to identifying specific individuals who are thought to pose a threat to the facility in question, smart technology also allows cameras to check visitors against databases. These can include not only known violent offenders and terrorists but white-collar offenders such as money-launderers, Roman says, pointing out that law firms need to know their clients and can be at risk if they don’t.

In the office and at outside meetings, particularly when adverse parties are present, efforts should be made to recognize and defuse situations in which anyone seems to be getting agitated, and there should be a plan for handling such issues. Taking a break, or perhaps even recessing until a future date, can make a big difference. If need be, unarmed or armed security can be arranged for the next meeting.

“Those very simple things can go a very long way in avoiding many of the casualties and injuries we see against attorneys,” Roman says.

He recommends background investigations of parties before negotiations begin as an excellent way to identify whether there could be a safety issue, based on a previous history of problem behavior.

Signs that an employee is severely stressed or, say, making threatening remarks also should be addressed. “Those kind of things are often ignored and pooh-poohed,” Roman says. “They shouldn’t be.”

Dealt with early on, such situations can much more easily be defused, he says, when a problem is “in its very early stages and hasn’t escalated emotionally.”

Outside the office, lawyers should have remote starters for their vehicles, he continues, and quality security systems in their homes that alert when someone crosses the perimeter of the property, accesses a door, a window or the basement, or breaks a window. Systems that transmit to a cell tower are more secure than those that use only a land line, since a land line can be cut to prevent an alarm from being sent.

Not only adult family members but children can be trained in a matter-of-fact way to be alert to their surroundings, know their location at all times and have a cellphone immediately at hand. That also goes for their nannies or any other caregivers, and schools should be advised to take care, too.

With his own children, such awareness “just became a part of their life,” Roman said. “They were never particularly afraid, they were just informed.”