{"id":1011,"date":"2012-04-21T15:07:24","date_gmt":"2012-04-21T19:07:24","guid":{"rendered":"http:\/\/blog.richardhornsby.com\/?p=1011"},"modified":"2012-04-21T15:07:24","modified_gmt":"2012-04-21T19:07:24","slug":"who-was-the-first-aggressor","status":"publish","type":"post","link":"https:\/\/www.hornsby.com\/blog\/who-was-the-first-aggressor\/","title":{"rendered":"Legally, Who Was the First Aggressor?"},"content":{"rendered":"

Sticks and stones<\/strong>
\nMay break my bones<\/strong>
\nBut words will never hurt me<\/strong><\/p>\n

As many commentators have opined, including myself, Angela Corey’s probable cause affidavit to support a charge of Second Degree Murder is not only a stretch, but extremely lacking in objective facts.<\/p>\n

Boiled down to its essential elements, the probable cause affidavit reads:<\/p>\n

    \n
  1. “Trayvon Martin was on his way back to a townhouse where he was living when he was profiled by George Zimmerman.”<\/li>\n
  2. Zimmerman called the non-emergency police number and pursued Martin.<\/li>\n
  3. When the dispatcher realized Zimmerman was pursing Martin, he instructed Zimmerman “not to do that and an officer would meet him.”<\/li>\n
  4. “Martin attempted to run home, but was followed by Zimmerman.”<\/li>\n
  5. “Zimmerman confronted Martin and a struggle ensued.”<\/li>\n
  6. “Martin died from a gunshot wound.”<\/li>\n<\/ol>\n

    As was highlighted by Zimmerman’s attorney, Mark O’Mara<\/a>, the prosecution engaged in selective word use when drafting their probable cause affidavit.<\/p>\n

    Where followed would have been appropriate, they used “pursued.” Where approached could have been used, they used “confronted.”<\/p>\n

    Which begs the question; why? Why did Angela Corey elect to use such specific language in the probable cause affidavit?<\/p>\n

    The answer is quite simple, in order to survive the inevitable Motion to Dismiss based upon Self Defense that will be filed by George Zimmerman’s attorney, she must convince the judge that Zimmerman was the “First Aggressor.”<\/p>\n

    The First Aggressor Rule<\/h1>\n

    The First Aggressor Rule is a rather simple common law rule that says “a defendant who provokes an encounter as a result of which he finds it necessary to use deadly force to defend himself, is guilty of an unlawful homicide and cannot claim that he acted in self-defense.” Wharton’s Criminal Law, Sec. 136 Provocation by Defendant. See also\u00a0Wallace v. United States, 162 US 466 (1896<\/a>).<\/p>\n

    Florida has codified the First Aggressor Rule into Florida Statute\u00a0776.041(2)<\/a> (Use of force by aggressor), which states: “The justification [to use self defense] is not available to a person who\u00a0initially\u00a0provokes the use of force against himself or herself.”<\/p>\n

    So if George Zimmerman is to be the aggressor, and thus forfeit his right to self defense, it must be shown that he “provoked” Trayvon Martin to attack him in someway.<\/p>\n

    This begs the question though, what would constitute sufficient provocation by George Zimmerman such that he would forfeit right to self-defense?<\/p>\n

    Sufficient Provocation<\/h2>\n

    According to Wharton’s Criminal Law treatise, an encounter is provoked, thereby branding the defendant as an aggressor and stripping him of his right to self-defense, where the defendant:<\/p>\n