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Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.


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      As we are presently in the relative calm before the storm following George Zimmerman's arrest and bonding out from prison for the alleged second degree murder of Trayvon Martin, I thought now would be a good time to address the so called Florida, "Stand Your Ground" law and compare it with the Illinois self-defense statute. Is Florida’s law in reference to self-defense really that different from other states as we have been led to believe?  Does Florida's self-defense statue provide a defense to Mr. Zimmerman which is not found in Illinois?

    Florida's statute in regards to self-defense is actually called, "Use of force in defense of person." The Florida statute states:

    A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

            (1)    He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony...

    Illinois' statute in reference to self-defense is also titled, "Use of force in defense of person." The Illinois statute states:

    A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another, or the commission of a forcible felony.

    With the exception of the Florida statute making a point to be gender neutral and specifically stating that there is no duty to retreat, the statutes are virtually identical.  For a person to use justifiable deadly force in either state the individual must have a reasonable belief that death or great bodily harm, or the commission of a forcible felony, is imminent to himself or another.

    The reasonable belief is a subjective belief on behalf of the accused that he or she is in danger. It is the trier of fact at the trial (the jury in case of a jury trial and the judge in the case of a bench trial) that must determine if the individual's subjective belief was indeed reasonable. The accused's state of mind is relevant to determine the reasonableness of the action. For example, if the other individual is known to be violent or to carry a weapon, then the accused can use this information in assessing his own danger level.  

    The accused must have a reasonable belief that the actions of the other individual will include death or great bodily harm, or the commission of a forcible felony. While death and great bodily harm are relatively straight forward, Illinois defines a forcible felony as:
    
    Treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement, and any other felony which involves the use or threat of physical force or violence against an individual.

    Finally, the accused must have a reasonable belief that the or she is in imminent danger. Imminent danger is an immediate threat of harm as opposed to harm that may occur in the future. For example, someone saying that they are going to harm you next week does not give rise to a reasonable belief of imminent danger as to justify deadly force a week prior to the potential event.

    Cases involving the theory of self-defense are very fact specific.  Virtually everything involved with the incident can be taken into account by the trier of fact when determining whether the accused's subjective belief was indeed reasonable. Such facts as the time of day, the location of the encounter, the presence of weapons, the physical size of the respective persons, the gender of the respective persons, and the statements made during the encounter must be weighed by the trier of fact to determine if the use of force was justifiable.

    Getting us back to the Trayvon Martin case, there are presently at least two competing fact patterns of what occurred that night. The first is that Mr. Zimmerman followed Mr. Martin and shot him without any justification while Trayvon Martin was holding a package of Skittles. The second is that Trayvon Martin confronted Mr. Zimmerman and struck him in the head prior to Mr. Zimmerman firing his gun at Trayvon Martin. Using either state's statute it appears that should the testimony hold at trial that Mr. Zimmerman's subjective belief was not reasonable under the circumstances, he will not be able to avail himself of the self-defense statute. On the other hand, should the testimony hold that Mr. Zimmerman's reasonable subjective belief was that he was about to suffer death or great bodily harm, then he should be found not guilty of second degree murder.

Posted in: June, 2012
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