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Utah Divorce Advice
A Deadly Encounter

According to the New York Times, Trayvon Martin was a lanky 17-year-old boy, interested in girls, computer games, sports, hip hop and going fishing with his father. He was easy-going, kind and respectful. He had no history of violence. Martin’s dream was to attend college at Florida International University, just like his older brother.

On February 26, 2012, Martin was visiting his father’s girlfriend, Brandy Green, in a gated community in Stamford, Florida. His father and Ms. Green were out to dinner. Bored, Martin walked to a nearby 7-Eleven, where he purchased an iced tea and Skittles. He was wearing a grey hooded sweatshirt with the hood pulled up to protect his face from the falling rain.

Martin never returned home.

As Martin hurried through the wet Florida night, he was spotted by self-appointed neighborhood watchman George Zimmerman.

Although a police officer had previously advised Zimmerman to remain unarmed during his neighborhood watch patrols, Zimmerman carried a 9-millimeter handgun concealed in his waistband.

Following closely behind Martin, Zimmerman dialed 9-1-1 to report that he was following a suspicious hooded figure. The 9-1-1 dispatcher instructed Zimmerman to cease his pursuit, but Zimmerman refused to lose sight of Martin. “These a–holes,” he said, “they always get away.”

Witness accounts of the subsequent confrontation between Zimmerman and Martin vary. But there is no doubt that Zimmerman fatally shot a teenage boy, who weighed 100 pounds less than Zimmerman and who was armed only with candy and a soft drink.

Stand Your Ground Law Stalls Prosecution

More than a month has passed since Martin’s death, and Zimmerman has not been arrested nor charged in the shooting death of Trayvon Martin.

Zimmerman has claimed immunity under Florida’s “Stand Your Ground” self-defense law, which was signed into effect in 2005. The law protects people from prosecution for using lethal force, so long as they have a reasonable fear that their own life is in danger. Prior to 2005, Florida law required people to attempt retreat prior to using deadly force. The requirement to retreat no longer exists.

As criminal law professor Elizabeth Megale explained, “You can stand your ground, meet force with force and if you perceive any reasonable fear you can kill someone.”

Florida’s law has come under intense scrutiny following Martin’s death. However, Florida is only one of at least 16 states, including Utah, that employ some version of the “Stand Your Ground” law.

Utah v. Florida

In Utah, a person is justified in using deadly force if the person reasonably believes that force is necessary to prevent death or serious bodily injury to the person or to a third person as a result of another person’s imminent use of unlawful force.

Fortunately, Utah’s lawmakers provided additional guidance on how to judges and jurors should apply the state’s self-defense standard. To assert a viable self-defense claim, a suspect must “reasonably believe” that force is necessary due to another person’s” imminent” use of force. In determining reasonableness or imminence the fact finder is directed to consider the following factors:

(a) The nature of the danger;

(b) The immediacy of the danger;

(c) The probability that the unlawful force would result in death or serious bodily injury;

(d) The other’s prior violent acts or propensities; and

(e) Any patterns of abuse or violence in the parties’ relationship.

Moreover, under Utah law, it is unreasonable for a person to use deadly force where he initially provoked the other person or was the initial aggressor.

Under Utah law, Zimmerman’s self-defense claim may not be deemed reasonable. Zimmerman had no prior history with Martin that would have caused him to believe that Martin was violent or danger. Moreover, Zimmerman initiated the incident by following Martin.

While the Florida law also includes a requirement that the person act reasonably, the law has been broadly applied and has led to the dismissal of multiple high-profile murder cases.

Dennis Baxley, the Republican state representative who co-authored Florida’s self-defense law condemns such a broad reading of the law. He intended the law to apply to “innocent, law-abiding citizens who are under attack by a perpetrator” not “people who are out pursuing and confronting people.”

The second notable difference between the Florida law and the Utah law is in the application of immunity.

Florida law mandates that a murder suspect be granted immunity from prosecution if there is any evidence to indicate that he acted in self-defense. Zimmerman cannot be arrested, detained, charged or prosecuted until a judge first determines whether there is evidence of self-defense. The judge may determine that such evidence exists using a looser standard than the “beyond a reasonable doubt” standard generally applied in criminal cases. According to Professor Megale, the Florida law requires the prosecution to disprove a suspect’s self-defense claim before they are able to pursue the case.

In Utah, Zimmerman could be arrested and charged with murder. He would have the initial burden of introducing evidence to support his affirmative claim of self-defense. The judge would then determine whether a reasonable jury could find that Zimmerman acted in self-defense, taking into account all of the evidence presented. If the judge were to determine that the evidence is sufficient, Zimmerman would be entitled to a self-defense jury instruction. The case would proceed to trial, and at trial, the prosecutor would have the burden of proving that the defendant did not act in self-defense.

Neighborhood Watch Creates Little Safety, Greater Risk

There is a second lesson to be learned from this tragic incident: Neighborhood Watch may create more danger than good.

George Zimmerman appointed himself to act as the neighborhood watchdog and took personal responsibility for protecting his community. The New York Times reported that Zimmerman’s commitment to vigilance started from an early age. During his childhood, he volunteered as an altar boy and was a member of the Young Marines.

As an adult, Zimmerman worked for a fraud-detection company and talked about becoming a police officer. He often reminded neighbors to close their garages and doors. He made numerous 9-1-1 calls, and in 2003, he chased and captured a man who had stolen two television sets from a local grocery store.

eighborhood Watch seems to attract volunteers who are a bit too anxious to take the law into their own hands. In addition, Neighborhood Watch lacks the funding and resources necessary to provide the proper training to prevent dangerous and unlawful activity among its volunteers.

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