By David Barrish
New Jersey --(Ammoland.com)- There have been many myths encountered by individuals that are “following” the Zimmerman trial.
I put “following” in quotes for two reasons 1) that people claim to be watching the trial or in fact do and see the testimony and evidence provided in a completely different light and 2) they use this term in describing a portion of the events that took place on 2/26/12.
Another big issue with people “following” this trial is that most of the people that have become legal pundits are from out of state. Therefore, I will provide links to Florida law and the court system to SPECIFICALLY describe Florida legal requirements of the trial. This is important, because each state has its own classification of crimes in statutes, elements of crime that need to be proven, affirmative defenses and court procedures that have been either codified or rulings made in other cases.
Also, please take note that I am not a lawyer nor a legal assistant. Any opinions given in this article are of my own. I would advise that you consult with an attorney to review my opinions and then act upon the recommendations of that attorney. I hereby release myself of all potential liability from the answers I will provide about the myths discussed in this article.
MYTH #1 – It is against the law for a neighborhood watch member to be armed while on duty. ***FALSE***
ANSWER: There are no statutes or administrative code that governs neighborhood watch. The only Florida statutes that mention neighborhood watch specifically are:
1. §843.16(2)(b) [ http://www.flsenate.gov/laws/statutes/2012/0843.16 ] which governs radio equipment use.
2. §30.06 [ http://www.flsenate.gov/laws/statutes/2012/30.06 ] which provides authorization for the County Sheriff to form neighborhood watch programs within their jurisdiction.
3. §166.0485 [ http://www.flsenate.gov/laws/statutes/2012/166.0485 ] which provides authorization for municipalities to form neighborhood watch programs within their jurisdiction.
4. §843.20 [ http://www.flsenate.gov/laws/statutes/2012/843.20 ] which provides for relief if members of a neighborhood watch program are victims of harassment or other criminal acts against them for performing their duties.
Nowhere in the above statutes listed in 1-4 does it mention anything about weapons or firearms and the prohibition of carrying for the purpose of lawful self-defense.
5. §790.06(15) [ http://www.flsenate.gov/laws/statutes/2012/790.06 ] which governs the statewide preemption of the regulation of concealed weapons and firearms. This is called the class W license or more commonly referred to as the concealed carry license.
6. §790.33 [ http://www.flsenate.gov/laws/statutes/2012/790.33 ] which governs the statewide preemption on the regulation of firearms and ammunition.
7. §790.06(12)(a) [ http://www.flsenate.gov/laws/statutes/2012/790.06 ] which governs the EXCLUSIONS to concealed carry.
8. §790.25 [ http://www.flsenate.gov/laws/statutes/2012/790.25] which governs the EXCEPTIONS to the open carry and conceal carry ban (except concealment on or about your person without a class W license).
Again, nowhere in these statutes that I’ve listed in 5-8 mentions that concealed carry during the duty of a neighborhood crime watch volunteer is prohibited. Furthermore, these statutes specifically state that a neither the county, municipality nor any political subdivision of the state OTHER THAN the state legislature can FURTHER regulate concealed carry, possession and use of firearms!
Therefore, as the state’s witness for the Sanford PD (SPD) volunteer coordinator stated on the stand, and I paraphrase, “…When that topic [armed] comes up, which it does a lot, we do not even answer that question because it is not within our area of jurisdiction. We do preach not to confront the subjects or enter a suspicious scene. They [neighborhood watch volunteers] are our eyes and ears. … .”
MYTH #2 – When a non-emergency call taker, 911 operator or dispatch gives an instruction over the phone, you MUST follow that order. ***FALSE***
ANSWER: Having been a 911 Operator for a sheriff’s office here in Florida, this statement is completely false!
The state’s witness 911 Operator even said on the stand, and I paraphrase, “…We always say that. … .” There is absolutely no statute or administrative code that stipulates that if an operator says something to you on the phone, you don’t follow it exactly or at all, then you will face criminal proceedings for not carrying out the order or instructions. The only time you have a potential criminal liability is if you do not follow and order or instruction if IN THE PRESENCE OF a law enforcement officer (LEO) directs you to assist him or comply with an order and you countermand said directive. Also, if you are following someone while on the phone with the police, you violate traffic laws and you are witnessed by the police in doing so, you will most likely get a ticket or worse depending upon the severity of the traffic infraction. These are just two examples as there are many more possibly scenarios. The distinction needs to be made that the criminal liability would occur when IN THE PRESENCE of a LEO and not based upon any instructions a police operator would give over the phone.
Now the exact phrase in question was:
Operator: “Are you following him?”
Operator: “OK, we don’t need you to do that.”
And immediately following that exchange, Zimmerman actually had already lost sight of Treyvon Martin and was starting the exchange of information with the operator about where to meet the responding LEO’s. At this time, Zimmerman was behind the two rows of townhomes at the now infamous ‘T’. This is substantiated by both Zimmerman’s interview by SPD and his video reenactment; both of which were proffered by the state.
MYTH #3 – Following someone is against the law. ***HALF TRUE***
ANSWER: While performing the duties of neighborhood crime watch, licensed private security, licensed private investigator, licensed private repossession or a concerned citizen that notices an out of ordinary event, following is NOT illegal. As a matter of fact, law enforcement encourages this by the consistent phrase of “We need the community to be our eyes and ears,” or, “Call Crime Stoppers with a tip.” Now this has an 1984-esque ring to it, but it underlies a critical component to, and specifically to this case, the main duties of the neighborhood crime watch program which is to observe and report.
Here is the example that I alluded to in my opening remarks about “following”. Almost everyone is aware of the crime of stalking. All too often, supporters of Treyvon Martin state that George Zimmerman was “stalking” Treyvon Martin that night. Well, since this is a criminal proceeding, we do need to use the correct LEGAL terms in discussing the events that took place.
Stalking is defined in §784.048 [http://www.flsenate.gov/laws/statutes/2012/784.048 ] which states:
(1) As used in this section:
(a)“Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.
(b)“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.
(c) “Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.
(2)A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Now to prove stalking in a court of law, the state must prove the following element of the crime beyond a reasonable doubt that the defendant “willfully, maliciously and REPEATEDLY followed, harassed or cyberstalked the victim.” [http://www.floridasupremecourt.org/jury_instructions/chapters/chapter8/p2c8s8.6.rtf ]
Now, listening to the 911 Operator’s testimony, the SPD volunteer coordinator testimony and the 911 recording, all either exhibit or has been confirmed that George Zimmerman was professional in his conduct as a neighborhood crime watch volunteer during his tenure and his calm demeanor on the phone on the night of 2/26/12. That it would be extremely difficult to near impossible for the state to prove that Zimmerman was willful and maliciously harassing Treyvon Martin; especially since it was a SINGLE event. Therefore, when folks consistently use the term “stalking” in describing Zimmerman’s actions in this case, under Florida law, they would be 100% INCORRECT.
MYTH #4 – The interchanging of terms: “Self-Defense”, “Stand Your Ground” and “Castle Doctrine”.
ANSWER: These terms are NOT interchangeable. They are very specific terms based upon the specific scenarios. All of this is defined specifically in Chapter 776 of Florida Statutes. [ http://www.flsenate.gov/Laws/Statutes/2012/Chapter776 ]
“Stand Your Ground”: (SYG): Self-defense is a component of SYG. Prior to 2005, if a self-defense scenario presented itself where deadly force was being used against a victim, the victim had a duty to retreat FIRST if that option was available before meeting with like kind deadly force in the protection of self or another. When SYG was instituted, it removed the duty to retreat and you could meet force with force; both less-than-lethal and deadly force.
“Castle Doctrine”: This law provides for the presumption that someone attempting to gain entry to your OCCUPIED home (a type of dwelling) is going to cause great bodily harm or possible death. This states that the use of deadly force is AUTOMATICALLY authorized in the defense of your OCCUPIED home. This law was also extended to your private conveyance (car).
“Self-Defense”: Is an act by a victim to reciprocate with necessary and proportional force in the defense of self, another or property. As it relates to property, you can only use force to protect property that which is yours or have been given authorization from the property owner to protect on their behalf.
“Deadly Force”: The use of deadly force is authorized if the victim believes that he or she is in imminent fear of great bodily harm or possible death.
Self-Defense, or the legal term of justified homicide, is proven according to these jury instructions: [ http://www.floridasupremecourt.org/jury_instructions/chapters/chapter8/p2c7s7.7.rtf ]
“The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing. § 782.02, Fla. Stat”
We will soon discuss the elements of the crimes 2nd Degree (Depraved) Murder and the automatic lesser charge of Manslaughter. The term “justified homicide” is defined in the jury instructions of Manslaughter which has already been cited above.
MYTH #5 – “It isn’t self-defense if you shoot an unarmed kid!” ***HALF TRUE***
ANSWER: As stated in the answer to Myth #4, in order for the use of deadly force to be justified, the victim needs to believe that he or she is in imminent fear of great bodily harm or possible death. Also, from the jury instructions for manslaughter, “The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing. § 782.02, Fla. Stat.”
Nowhere in these statutory and jury instruction definitions of deadly force does it mention the following:
- Age of victim
- Height difference of victim
- Weight difference of victim
- Number of victims
- Armed or Unarmed
- Injuries sustained in attack
The ONLY requirement that needs to be present for the justified use of deadly force is that the victim has BELIEF of an IMMINENT FEAR of great bodily harm or possible death. For the specifics of this case, I would posit that the repeated “…throwing down MMA style…” to Mr. Zimmerman’s front and sides of his head while the exact opposite side of the blow was smashing into the concrete sidewalk could culminate the thought in Mr. Zimmerman’s mind that he was in imminent fear of great bodily harm and if the blows continued without intervention that he could face even more serious and possibly deadly consequences, coupled with the so far irrefutable evidence presented by the state that Mr. Zimmerman claims Mr. Martin said to him “You gonna die tonight,” would justify the use of deadly force in the protection of self.
MYTH #6 – George Zimmerman confronted Treyvon Martin. Therefore he is not protected from the self-defense claim. ***HALF TRUE***
ANSWER: Let’s say for argument sake that Mr. Zimmerman COMMITTED a crime in the confrontation of Mr. Martin. If Mr. Zimmerman never retreated from the scenario or the crime that was committed was a forcible felony, then this myth would be TRUE that Mr. Zimmerman could not claim self-defense and therefore could not claim justified use of deadly force. However, for sake of this argument, if Mr. Zimmerman’s initial crime that started the confrontation was NOT a forcible felony, he retreated from the initial confrontation AND then Mr. Martin pursued Mr. Zimmerman in a physical confrontation, then this myth would be FALSE. This is defined in the Florida statute, §776.041 Use of Force by Aggressor. [ http://www.flsenate.gov/Laws/Statutes/2012/776.041 ]
Now, lets talk about the specifics of the case! With all the 911 calls during the incident by the residents, the calls by Mr. Zimmerman and Mr. Martin with DeeDee and the given timeline of events, there has been absolutely no evidence proffered by the state to suggest that Mr. Zimmerman committed a forcible felony and didn’t retreat from the initial confrontation to negate his ability to claim self-defense and the justified use of deadly force. Actually, by DeeDee’s account of the phone call with Mr. Martin leading up to the incident, there is more evidence to suggest that Mr. Martin actually initiated two confrontations. One when he walked around Mr. Zimmerman’s vehicle and two when he said, “Why you following me?” Therefore this myth concerning the case is FALSE.
MYTH #7 – It was Treyvon Martin screaming for help. Therefore, it is not justified homicide (self-defense). ***FALSE***
ANSWER: The myth of the person screaming leading to a conclusion of who is in the right is a red herring logical fallacy!
- Scenario #1 – Mr. Zimmerman is screaming because he is getting viciously attacked by Mr. Martin and is trying to draw as much attention to the incident as possible. This is plausible because the injuries Mr. Zimmerman suffered in the altercation are present and can be explained. And the injuries sustained have been corroborated by several state witnesses that testified that Mr. Martin was on top and he was “throwing down MMA style”. Also, the fact that multiple neighbors in the vicinity of the altercation called 911 confirms that by yelling “HELP!” as loud as he can did in fact bring attention to the incident.
- Scenario #2 – During the altercation, Mr. Martin realized that Mr. Zimmerman was going for his lawfully carried firearm. It is plausible that Mr. Zimmerman drew his weapon and in the same instance Mr. Martin was trying to hold back Mr. Zimmerman from aiming the firearm and firing his weapon in self-defense by yelling, “HELP!”
In both scenarios you have one of the parties yelling, “HELP!” while the constant is Mr. Zimmerman is the victim and Mr. Martin is the aggressor. Therefore this myth is FALSE.
MYTH #8 – There is no DNA from Mr. Zimmerman on Mr. Martin’s hands. There is no DNA on the gun from Mr. Martin. Therefore, the account of the altercation is inconsistent which means Mr. Zimmerman lied. Therefore, Mr. Zimmerman’s claim to self-defense is invalid. ***FALSE***
ANSWER: The state’s final witness, the medical examiner (ME), was absolutely horrible in his presentation of the autopsy report as well as the procedures used in the autopsy. The ME stated on the stand that it is NOT routine to take swabs for DNA on the deceased unless specified.
First, it was raining the night of the incident. Any trace evidence on both Mr. Zimmerman and Mr. Martin is plausible to have been washed away either in part or whole.
Secondly, the claim that “There wasn’t any of Mr. Zimmerman’s DNA under the fingernails of Mr. Martin,” would confirm that since it cannot be denied a physical altercation DID take place, witnesses placed Mr. Martin on top of Mr. Zimmerman and witnesses stated that Mr. Martin was “throwing down MMA style” that when you punch someone, you do not punch with fingernails but rather with a clenched fist. It would be highly unlikely for the person you are striking to get DNA under the fingernails with a clenched fist. The only plausible scenario would be the victim’s blood from the site in which the aggressor was punching.
Additionally, it would be more consistent that a victim of a brutal attack would have defensive wounds trying to ward off an attack. Most commonly one would find DNA under the fingernails of the victim which would belong to the aggressor. However, in this instance, Mr. Zimmerman had a lawfully concealed firearm and it is presumed that he had an imminent fear of great bodily harm or possible death. Therefore it is plausible that instead of the traditional defensive wounds and wounding to the aggressor, Mr. Zimmerman concentrated his efforts in drawing his firearm to defend himself. Mr. Martin might not have noticed this right away for tunnel vision is very common in fight scenarios as well as the expectation of the victim physically fighting back by the aggressor might have fooled Mr. Martin that Mr. Zimmerman was just taking the beating without fighting back.
So to claim that Mr. Zimmerman’s DNA was not found on Mr. Martin’s hands that leads to the conclusion that the events of the physical altercation are false is FALSE.
The claim that there was no trace DNA found on the gun or the holster therefore Mr. Martin didn’t reach for or touch the gun or holster is also FALSE. Two state’s witnesses, the CSI and the DNA lab technician both on cross examination stated that touch DNA may not be present even if someone touched an object. Then throw in the environmental conditions of rain and the storing of the evidence in plastic exacerbates the probability of finding no touch DNA evidence! Therefore, because no touch DNA was found does not lead to the conclusion that Mr. Martin didn’t reach for or touch the gun or holster. This myth is FALSE too.
Next, I will point you to the legal requirements that the state must prove BEYOND A REASONABLE DOUBT:
2nd Degree (Depraved) Murder: [ http://www.floridasupremecourt.org/jury_instructions/chapters/chapter8/p2c7s7.4.rtf ]
With this charge, there is also an automatic lesser charge of Manslaughter which can be found at: [ http://www.floridasupremecourt.org/jury_instructions/chapters/chapter8/p2c7s7.7.rtf ]
Both require that the victim is dead (as used in the jury instruction terms, Mr. Martin is the victim and Mr. Zimmerman is the defendant).
2nd Degree (Depraved) Murder must also prove two additional elements of the crime:
- The death was caused by the criminal act of (defendant).
- There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
And these are the terms defined for use in these jury instructions:
An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.
An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:
- a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and;
- is done from ill will, hatred, spite, or an evil intent, and is of such a nature that the act itself indicates an indifference to human life.
And if the state cannot prove its case for 2nd Degree (Depraved) Murder, then they must prove their case for Manslaughter as the lesser charge, otherwise Mr. Zimmerman is either acquitted due to justified homicide or found not guilty on both charges.
The additional requirements for Manslaughter are:
Give 2a, 2b, or 2c depending upon allegations and proof.
2. a. (Defendant) intentionally committed an act or acts that caused the death of (victim).
b. (Defendant) intentionally procured an act that caused the death of (victim).
c. The death of (victim) was caused by the culpable negligence of (defendant).
Now, 2a and 2c are applicable to this case because 2b defines “procure”: to persuade, induce, prevail upon or cause a person to do something. This definition makes no sense in the context of this case.
Now 2a is only proves a conviction of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death. So, this means that Mr. Zimmerman had to have the INTENT to cause harm to Mr. Martin through his acts. The state did not proffer any evidence that Mr. Zimmerman had the intent to cause harm to Mr. Martin through his acts.
Now 2c is only proves a conviction of manslaughter when Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
Mr. Zimmerman in following (the act) Mr. Martin could not have reasonably foreseen that through this act of following Mr. Martin would have lead to Mr. Martin’s death. Therefore, 2c cannot be proven nor has it been proven by the state.
- The state did not disprove that Mr. Martin was not on top during the physical altercation.
- The state did not prove that Mr. Zimmerman initiated the physical altercation.
- The state did not prove that Mr. Zimmerman was also landing punches, kicks or other hand-to-hand combat blows.
- The state did not prove that the injuries to Mr. Zimmerman’s head were caused by something else other than Mr. Martin’s punches and smashing on the concrete sidewalk.
- The state did prove that the shot was fired at intermediate range (0.4″ to 4′).
- The state did prove through DeeDee’s phone call account leading up to the altercation that Mr. Martin confronted Mr. Zimmerman verbally with, “Why you following me?”. This was then followed up in her testimony that she heard a scuffle shortly thereafter which she speculated was a fight.
- The state did prove through DeeDee’s testimony that Mr. Martin called Mr. Zimmerman a “ni***r” and “creepy ass cracker”.
- The state did prove through Mr. Zimmerman’s 911 call that he did not once use an epithet against Mr. Martin. Other than the statements made to DeeDee by Mr. Martin, by all accounts, the state either confirmed or could not refute Mr. Zimmerman’s account of that night which doesn’t even come close to proving ANY of the elements of both charges.
I predict a verdict of not guilty on both counts.
About Fred Brownbill
Fred Brownbill was born and raised in Rhodesia in 1955 before moving to South Africa in 1970 where he continued his education graduating from Christian Brothers College in 1973. He then returned to Rhodesia and fought on active service attached to a special anti-terrorist unit for seven years in that Country’s terrorist war before taking the very good advice of others and leaving when Independence was announced and a Marxist Government under Robert Mugabe took over. Fred was Stateless and very unsettled and from 1980 travelled around much of the world on motorcycles while maintaining a residence in England for 14 years. He managed the largest motorcycle retail company in Europe during this period, and continued his travels as often as possible. Fred has raced motorcycles both as a drag racer and road racer, competing in Southern Africa and England . He immigrated to the United States in October of 1994, becoming a proud and legal U.S. citizen in 2003. Today, Fred works as a Deputy Sheriff in Florida. He is the President of the Save America Foundation. He is also a member of Oath Keepers and various other local and national Conservative Patriotic groups. He is active as a public speaker at different groups and locations. He has been interviewed on various different national radio and live internet radio and TV programs. His writings are published in many places and read and followed by tens of thousands of people in the States and abroad, and his message of freedom and liberty is an International message that gives hope to all those seeking freedom. He is married to Marty, an advisor to the Board of the SAF, and they have 2 daughters, one in California and the other in Florida. Both he and Marty are still each riding motorcycles, doing thousands of miles a year, and take as many trips both in the States and abroad when they can.