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onenote

(46,244 posts)

198. Do you have case law to support that theory?

Fri Jul 12, 2013, 03:43 PM

Jul 2013

According to one of the leading treatises on criminal law, Wharton's Criminal Law, examples of provocation that would result in a loss of the self-defense claim innclude
Assaulting the victim
Unlawfully arresting the victim
Firing the first shot at the victim.

Insufficient provocation, according to this treatise, includes

Demanding an explanation of offensive words or conduct;
Hurling inappropriate language and insulting epithets
Creating an opportunity for conflict without causing it
Provides an opportunity for conflict, but does not cause it;
Failing to perform a contemporaneous act manifesting a subjective intent to cause the conflict, even if one arms oneself with the intent to create a conflict.

In Florida, there is at least one case in which the failure to specify that the provocation had to be by force or threat of force was held to be reversible error.

It is highly unlikely, imo, that the state could prove beyond a reasonable doubt, that Zimmerman engaged in an actionable act of provocation that would negate his claim of self-defense. Which may explain why the prosecution hasn't really tried that tactic.

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What about Trayvon's right to stand his ground? Finally, CNN asks the right question. [View all] pnwmom Jul 2013 OP

did they say this on TV ? CNN is pro Zimmerman so i can't stand to watch them JI7 Jul 2013 #1

I agree. And I agree with the writer here -- if Trayvon had managed to grab Zimmerman's gun pnwmom Jul 2013 #2

I have to also agree that CNN's reporting is definitly biased. He won't be hired by CNN but FOX. olegramps Jul 2013 #217

Precisely the problem with this law. It only makes sense when there is a clear aggressor.. DCBob Jul 2013 #3

Zimmerman aggressively followed Martin around while he was carrying a gun, pnwmom Jul 2013 #4

Right, if anyone was an aggressor it would be Zimmerman.. DCBob Jul 2013 #5

following someone with a gun is not aggression Blue Bike Jul 2013 #16

The way Zimmerman did it sure the hell was. pnwmom Jul 2013 #17

Plus Zimmerman had a bullet in the gun cocked and already to go. lumpy Jul 2013 #32

What good is a gun without a bullet? Pelican Jul 2013 #62

Had it only gone off half cocked and hit himself in the balls . . . SleeplessinSoCal Jul 2013 #144

Your attempt at humor failed Generic Brad Jul 2013 #33

Oh for fuck's sake. yardwork Jul 2013 #34

From the evidence shedevil69taz Jul 2013 #129

And whose word do we have for that gun being in the holster and not in his hand? proReality Jul 2013 #138

If there was evidence to refute that shedevil69taz Jul 2013 #139

It was brought up carjackistan Jul 2013 #196

In the opinion of someone who wasn't actually there shedevil69taz Jul 2013 #197

None of us were there. yardwork Jul 2013 #230

The concealed/unconcealed status of the gun is irrelevant. Maedhros Jul 2013 #179

Correct, and the "community watch" position holds no water. bluesbassman Jul 2013 #194

Once you are stalked by someone with a gun gollygee Jul 2013 #40

Calling MIRT... Agschmid Jul 2013 #47

Try this uppityperson Jul 2013 #49

LOL... Agschmid Jul 2013 #50

Well.............. JimboBillyBubbaBob Jul 2013 #133

I've been on DU pauljulian Jul 2013 #219

That is awesome! :) Lucinda Jul 2013 #55

! LIKE ! Vanje Jul 2013 #150

Why would you follow someone with a gun if they had not threatened you in any way? sabrina 1 Jul 2013 #53

only in the minds of gun humping racists it is not Skittles Jul 2013 #54

Holy shit. Are you fucking serious? Dawgs Jul 2013 #78

yes, because TM was black, it's not aggression Nanjing to Seoul Jul 2013 #81

After calling 911, it sure as hell is. Sivafae Jul 2013 #105

yes it is noiretextatique Jul 2013 #115

Well, if you walk up to me with your gun,... KansDem Jul 2013 #120

Intent. Ikonoklast Jul 2013 #146

Yep. Vanje Jul 2013 #151

Gun humping racist is no longer with us. Exit is that way...Buh bye. nt stevenleser Jul 2013 #153

idiot datasuspect Jul 2013 #159

you say that like Zimmerman simply happened to be walking behind Travyon while carrying a gun azurnoir Jul 2013 #161

follow someone you just called "these fucking punks always get away" after being told to stay tiredtoo Jul 2013 #180

What is it like on that planet of yours, care to come back down to reality Rex Jul 2013 #216

Zimmerman was not only following Trayvon, but confronting him. AngryOldDem Jul 2013 #234

My thoughts exactly. Apophis Jul 2013 #51

Right, "stand your ground" makes more sense in something like home invasion thesquanderer Jul 2013 #98

Exactly.. or a hold up or mugging. DCBob Jul 2013 #109

Been saying this. Just Saying Jul 2013 #6

Hardly old and fat starroute Jul 2013 #13

That's because they put him on the all Twinkie diet davidpdx Jul 2013 #76

Not to mention... Vasmosn Jul 2013 #239

About time! Trayvon was standing his ground, Cha Jul 2013 #7

I'm glad someone asked this question finally gollygee Jul 2013 #8

Bingo! Little Star Jul 2013 #9

Today in the Prosecution's closing argument the attorney did talk about Trayvon's fear. n/t Tx4obama Jul 2013 #10

Good. I wish he had addressed this issue, however. n/t pnwmom Jul 2013 #11

I said from the very beginning that Trayvon was standing his ground. Kahuna Jul 2013 #12

Maybe I'm harping on a minor point, but it annoys me.... Captain Stern Jul 2013 #14

You're right, but in a nit-picky kind of way. pnwmom Jul 2013 #15

I agree about the nitpickiness (is that a word?) Captain Stern Jul 2013 #18

He was asked by the dispatcher if he was following lenegal Jul 2013 #131

BOTH had every right to be where they were that night under Florida law Lurks Often Jul 2013 #19

The question raised in the OP is not who struck whom first, but who had the right to fear for his JDPriestly Jul 2013 #22

A manslaughter conviction could still get him 30 years. That would be fine with me. n/t pnwmom Jul 2013 #25

Sounds right for Zimmerman, but you never know what a jury will do. JDPriestly Jul 2013 #26

The judge said that the prosecution would give half of its closing argument Thursday, pnwmom Jul 2013 #46

Thanks for this information. I have purposely kept myself from watching the trial. JDPriestly Jul 2013 #56

I watched the first half of the closing argument on youtube. pnwmom Jul 2013 #69

Who struck whom first is the center of this case. Lurks Often Jul 2013 #73

why did he get out of the car? noiretextatique Jul 2013 #117

Again, under the law, Zimmerman Lurks Often Jul 2013 #119

every right, sure, but the dispatcher told him "we don't need you to do that" noiretextatique Jul 2013 #126

People are convicted Lurks Often Jul 2013 #141

If I was 17 in Trayvon Martin's position and some man in a truck first ogled me and then followed me JDPriestly Jul 2013 #195

And in the scenario you described in your first paragraph Lurks Often Jul 2013 #201

I am glad you are posting here. Vanje Jul 2013 #208

I think the jury will agree with you at least on murder 2. JDPriestly Jul 2013 #212

Your perspective is very similar to mine. klook Jul 2013 #227

The fact that the jury is composed of women may mean they see Trayvon Martin for the child he was. JDPriestly Jul 2013 #229

"Had Zimmerman not been carrying a gun, he probably would not have followed Trayvon. " Vanje Jul 2013 #209

Zimmerman was clearly menacing Trayvon. pnwmom Jul 2013 #28

Florida law does not agree with you. Lurks Often Jul 2013 #71

Would you say that if your child was being stalked by a large man with a gun? pnwmom Jul 2013 #72

I would expect my child to run and call 911, not call a friend Lurks Often Jul 2013 #74

Zimmerman's age and weight gave him a major advantage in addition to the gun. pnwmom Jul 2013 #75

I disagree about the age and weight Lurks Often Jul 2013 #77

Interesting that you make note of Zimmerman's weight but not the fact he had a gun. Dawgs Jul 2013 #82

And where is your proof that the gun came out at any point before Lurks Often Jul 2013 #88

It doesn't matter. None of this would have happened if Zimmerman hadn't recklessly pnwmom Jul 2013 #97

None of what you stated above is illegal under Florida law. Lurks Often Jul 2013 #101

If that's so clear cut then the judge would have dismissed the case pnwmom Jul 2013 #102

At what point has Zimmerman said that he got out to try to talk to Martin? nyquil_man Jul 2013 #163

We can argue all day as to Zimmerman's motive Lurks Often Jul 2013 #167

From Serino's interview with Zimmerman, tape 1, 2/29/12: nyquil_man Jul 2013 #171

That is not what I said Lurks Often Jul 2013 #181

I see. He also had a right to stand outside his truck and do an Irish jig. nyquil_man Jul 2013 #183

Because people keep saying that it was against the law for Zimmerman to get Lurks Often Jul 2013 #193

What does that have to do with him trying to talk to Martin? nyquil_man Jul 2013 #200

You seem to be missing the point I am trying to make Lurks Often Jul 2013 #202

No, I get your point. nyquil_man Jul 2013 #205

You're assuming Zimmerman hadn't revealed his gun. pnwmom Jul 2013 #95

We're both assuming Lurks Often Jul 2013 #96

Not really. The jury could very well decide that Zimmerman behaved pnwmom Jul 2013 #100

Some of the lawyers have stated that while a judge can issue a judgement of acquittal Lurks Often Jul 2013 #111

It's not common, but if the law were as clear cut as you've been claiming pnwmom Jul 2013 #122

and knowing what a paranoid gun humping coward he is Skittles Jul 2013 #242

there is no way in HELL that gutless coward approached Trayvon without his precious gun pulled Skittles Jul 2013 #241

Prove it n/t Lurks Often Jul 2013 #245

I would say the guy being stalked by a gun-toting vigilante was the one fighting for his life Skittles Jul 2013 #246

Like I thought, you have no proof n/t Lurks Often Jul 2013 #248

listen to this rant - ALL of it Skittles Jul 2013 #249

There is no proof, because if there was the prosecution would have used it n/t Lurks Often Jul 2013 #250

well I can see from the time lapse you didn't even bother Skittles Jul 2013 #251

No, I didn't watch because you have zero credibility n/t Lurks Often Jul 2013 #252

OMG LOL Skittles Jul 2013 #253

It is not as simple as John2 Jul 2013 #38

Jenteal came forward reluctantly. JDPriestly Jul 2013 #57

The burden of proof remains on the Prosecution Lurks Often Jul 2013 #70

Following someone is always a crime in Florida JoeyT Jul 2013 #135

A & B don't apply and C has not been proven Lurks Often Jul 2013 #142

The judge declined to instruct ctaylors6 Jul 2013 #182

Not exactly Lurks Often Jul 2013 #192

Thanks ctaylors6 Jul 2013 #204

You left out a part of the law onenote Jul 2013 #154

I think A may apply AmyStrange Jul 2013 #220

If lying indicates a lack of credibility, then we may only presume you find Zimmerman lacking credib LanternWaste Jul 2013 #203

I never read Zimmerman's statement about that night Lurks Often Jul 2013 #206

that one is a lost cause Skittles Jul 2013 #254

If we don't know who struck who first then how can Zimmerman claim self-defense? Dawgs Jul 2013 #80

Because it is the state's burden to prove that Z's actions were not self-defense hack89 Jul 2013 #84

Z has to prove something. You can't just kill people when no one is around and claim self-defense. Dawgs Jul 2013 #85

He has no burden of proof whatsoever - "innocent until proven guilty". hack89 Jul 2013 #87

But he is guilty. Dawgs Jul 2013 #107

Except that shooting someone is not always a crime hack89 Jul 2013 #113

Precisely. onenote Jul 2013 #147

I thought justifiable homicide had to be shown to be...justified...i.e. reasonable. jmg257 Jul 2013 #152

The law in Florida is crystal clear. onenote Jul 2013 #155

Thank you very much! nt jmg257 Jul 2013 #156

Z merely has to provide a prima facia case of self defense hack89 Jul 2013 #157

You don't see that too often because there is usually proof to the contrary joeglow3 Jul 2013 #89

No, the burden comes down to the Prosecution Lurks Often Jul 2013 #90

But it's not proven that Martin escalated the fight to that point. Dawgs Jul 2013 #108

Zimmerman assumed that Martin was a junky looking to break in to homes. olegramps Jul 2013 #94

The HOA already settled with Martin's parents Lurks Often Jul 2013 #99

They don't have to bring the suit under Floridia law. olegramps Jul 2013 #136

I'm curious how you reach that conclusion? n/t Lurks Often Jul 2013 #140

When are or were closing arguments? JDPriestly Jul 2013 #20

The prosecution did some today. I don't know about the defense. n/t pnwmom Jul 2013 #24

"An apparent stalker" burnodo Jul 2013 #21

The comments after the article!! YIKES!!!!! Liberal_Stalwart71 Jul 2013 #23

It's like this after every. single. article. on the internet. Makes me furious. yardwork Jul 2013 #37

Convict the neighborhood threat !!!! Honor the 2nd, don't abuse it . orpupilofnature57 Jul 2013 #27

Of course Trayvon had the right to defend himself... ReRe Jul 2013 #29

Sorry, doesn't work that way Lithos Jul 2013 #30

Is the op suggesting we have the right to assault someone because we think they're following us? Hempologist Jul 2013 #31

No, you only have a right to attack gollygee Jul 2013 #35

You don't have the right to attack anyone who isn't trying to harm you. Hempologist Jul 2013 #44

This is false, we do know what happened...zimmerman, afraid of TM, got out of his car and chased him uponit7771 Jul 2013 #59

First, that makes absolutely no sense. Hempologist Jul 2013 #91

None of Zimmerman's many stories have made sense. IdaBriggs Jul 2013 #104

I can see both sides and funny how you assume I'm white because of that. Hempologist Jul 2013 #114

again, a boy is dead. zimmerman's reckless behavior caused his death noiretextatique Jul 2013 #130

Carrying a gun is not illegal nor is following someone in public. Hempologist Jul 2013 #137

no...because that narrative is self-serving and racist noiretextatique Jul 2013 #143

Personal insults and accusations of racism are the last refuge for who can't form rational arguments Hempologist Jul 2013 #148

i said his narrative is classic racism. noiretextatique Jul 2013 #189

In your opinion the prosocution failed. Others feel they succeeded. That's that. TeamPooka Jul 2013 #235

Excuse me? First of all, I have NEVER "assumed you are white" -- WTF? IdaBriggs Jul 2013 #149

"Was he, Martin, justified in standing his ground and defending himself when this stranger, an..." uppityperson Jul 2013 #36

How about if they display a gun while walking behind us or making serious threats? lumpy Jul 2013 #41

So you won't be standing your ground I take it? Agschmid Jul 2013 #48

Too bad none of Ted Bundy's victims didn't attack him. WinkyDink Jul 2013 #66

Children are taught that if an adult is trying to abduct them that they should hit and kick pnwmom Jul 2013 #67

According to your logic, then everything women are taught to defend themselves sinkingfeeling Jul 2013 #86

Or maybe she kneed some poor sap she thought was following her. Hempologist Jul 2013 #106

Or maybe not, and she would get raped. Dawgs Jul 2013 #110

Well you better be sure or you just committed assault. Hempologist Jul 2013 #125

What would it matter, the woman would be dead. sinkingfeeling Jul 2013 #214

actually ctaylors6 Jul 2013 #215

that boy is DEAD...did his follower have the right to shoot and kill him? noiretextatique Jul 2013 #128

If Trayvon attacked him then yes. Hempologist Jul 2013 #132

that's not what the law says noiretextatique Jul 2013 #134

Of course the law acknowledges our right to defend ourselves from violence Hempologist Jul 2013 #145

They could both have been acting in justifiable self-defense. cigsandcoffee Jul 2013 #39

Not unless John2 Jul 2013 #43

Zimmerman recklessly put his life at risk, if it was ever at risk pnwmom Jul 2013 #45

that just doesn't make any sense...zimmerman's "fear claim" noiretextatique Jul 2013 #121

I completely agree neohippie Jul 2013 #42

Good points, well stated Vanje Jul 2013 #165

J. Cheney Mason zeeland Jul 2013 #52

Kicked and Recommended! Enthusiast Jul 2013 #58

I don't think so. Niceguy1 Jul 2013 #60

You would be wrong. Enthusiast Jul 2013 #61

we may never Niceguy1 Jul 2013 #63

Are you seriously saying that Zimmerman would have been stalking a white teen? pnwmom Jul 2013 #68

zimmerman apologists noiretextatique Jul 2013 #124

+1 Vanje Jul 2013 #162

well, you seem well informed...NOT noiretextatique Jul 2013 #123

+1 Vanje Jul 2013 #166

I been saying this all along! Has the B Calm Jul 2013 #64

I highly suspect that if there was a "You're gonna die tonight, motherfucker" Myrina Jul 2013 #79

Because Z's basic story has been allowed to stand as the truth, with only some "discrepancies" WinkyDink Jul 2013 #65

best answer in this thread noiretextatique Jul 2013 #127

Thank you! WinkyDink Jul 2013 #218

because martin is black and black people are scary. don't you know that yet? Nanjing to Seoul Jul 2013 #83

What if Zimmerman had the misfortune of following a black... usaf-vet Jul 2013 #92

yes...the black would have been arrested that night, and the police would have actually investigated noiretextatique Jul 2013 #118

I'll bet a million dollars secondvariety Jul 2013 #93

It's based on guns. Quantess Jul 2013 #103

This very same issued was being LukeFL Jul 2013 #112

Or Trayvon's right to walk down the street? TBF Jul 2013 #116

Message auto-removed Name removed Jul 2013 #158

How about this: Cooley Hurd Jul 2013 #170

I disagree neohippie Jul 2013 #177

There is evidence of self-defense. Cooley Hurd Jul 2013 #213

REPEATEDLY following someone in FL is a criminal act. Even Z indicated he REPEATEDLY followed TM and uponit7771 Jul 2013 #186

Florida stalking law onenote Jul 2013 #211

Under Florida law, Trayvon only had the right to "stand his ground" onenote Jul 2013 #160

Who'd a thunk it libodem Jul 2013 #164

Message auto-removed Name removed Jul 2013 #168

You're an attorney? Cooley Hurd Jul 2013 #172

The state can make its case by persuading the jury not to believe Zimmerman onenote Jul 2013 #174

Message auto-removed Name removed Jul 2013 #176

...unnn, REPEATED following of a person is stalking. I don't think Z had the right to "STALK" TM uponit7771 Jul 2013 #185

Thank you. ( n/t) klook Jul 2013 #228

You have to ask one very simple question. Fantastic Anarchist Jul 2013 #169

Except such an instruction to the jury would result in any conviction being reversed onenote Jul 2013 #173

The progression of events starts with Zimmerman Fantastic Anarchist Jul 2013 #175

As a factual matter, you are right. If Zimmerman stays in the car, Trayvon is alive today. onenote Jul 2013 #178

I understand that you are not defending Zimmerman. Fantastic Anarchist Jul 2013 #184

If the law were so clear on this matter the judge would have dismissed the charges pnwmom Jul 2013 #188

I don't disagree. onenote Jul 2013 #190

Suppose Trayvon were a 17 year old female. pnwmom Jul 2013 #191

I believe Zimmerman pulled a gun and tried to detain Travyon Skittles Jul 2013 #240

Also ctaylors6 Jul 2013 #210

AAAAGH! Using present verb tense when it doesn't belong is the province of stupid sportscasters! WinkyDink Jul 2013 #231

Self-defense doesn't apply in situations where the person claiming it PROVOKED an attack. pnwmom Jul 2013 #187

Do you have case law to support that theory? onenote Jul 2013 #198

I don't think the jurors have to rely on case law. Just common sense. pnwmom Jul 2013 #199

Note that the judge did not instruct the jurors regarding the provocation exception onenote Jul 2013 #207

The judge instructs ctaylors6 Jul 2013 #224

Does SYG allow you to kill a cop? AmyStrange Jul 2013 #221

No, that is explicitly not allowed. ManiacJoe Jul 2013 #244

Murder is murder. nt Jamaal510 Jul 2013 #222

I made this point over a year ago krispos42 Jul 2013 #223

The problem is that there is no way to know exactly what Martin felt or onenote Jul 2013 #233

didn't Jenteal's testimony tell us neohippie Jul 2013 #238

. blkmusclmachine Jul 2013 #225

Had Martin been able to kill Zimmerman customerserviceguy Jul 2013 #226

Martin's parents appear to be well educated and middle class at least. maddiemom Jul 2013 #232

This is the NRA's dream verdict. No longer will we as citizens be able glinda Jul 2013 #236

why didn't it come up at the trial is the question. martin was the one being stalked. HiPointDem Jul 2013 #237

sadly, Martin was the one being tried instead of Zim Blue_Tires Jul 2013 #247

Clearly Martin had no right to stand his ground, even under threat of lethal force. Rex Jul 2013 #243

Not to be flippant about it, but stand your ground changes every time the last chelsea0011 Jul 2013 #255