The Zimmerman Verdict and the Initial Aggressor Exception

By Jeffrey A. Fagan

Florida’s Stand Your Ground law aligns with other Stand Your Ground laws to extend the traditional “castle doctrine” beyond the boundaries of one’s home. The Florida statute also hews to tradition by including an “initial aggressor” exception to its self-defense statutes. The initial aggressor exception often takes away the justification of self-defense for someone who “provokes” the victim’s use of force. The initial aggressor can only invoke self-defense after she withdraws from the conflict or uses other reasonable escape options to avoid death or great bodily harm. When the escape route is unavailable, then a defendant may “stand her ground” in the face of the threat of serious injury or death. 

Whether George Zimmerman was the initial aggressor, or the provocateur of the incident, and whether he forfeited his self-defense claim by failing to withdraw from the confrontation with Trayvon Martin, and behaving culpably for provoking the incident, should have been matters for the jury to decide. The jury should have been allowed to decide whether Zimmerman appreciated the risks of causing force to be used against him through his actions, and whether he did so without justification or excuse. But following the summations, Judge Debra Nelson did not give an initial aggressor jury instruction, basically leaving it up to the jury to decide whether these facts matter, how much, and in what way. Her decision to not instruct the jury to consider this part of the law went well beyond the boundaries of judicial discretion in forming a jury instruction, or even discretion in interpreting the Stand Your Ground statute. In fact, it may have contaminated the verdict by obscuring a crucial piece of the law.

But it didn’t have to be that way. The initial aggressor exception was, in fact, contested during the trial and ultimately the jury rejected it, but on its own and without the benefit of an explanation from Judge Nelson or guidance in how to interpret and apply it. In fact, the jury never really had a chance to air out its full implications because Judge Nelson attenuated the jury instruction by dancing around the exception. Moreover, her instruction went against an important precedent in Florida law— one that, had the jury known about it, might have changed the course of its deliberations.

The prosecution struggled, but with some odd tactics, to include the initial aggressor question in the jury instruction. The lengthy arguments began when the defense objected to Judge Nelson’s initial jury instruction. They wanted no mention of the initial aggressor exception. The prosecution made a predictable argument—Zimmerman provoked the event by following Martin. Again, this was an issue of fact for the jury to decide.

Here is where things got interesting and convoluted. The defense cited Gibbs v. State, a case where the Florida Court of Appeals ruled that provocation under the initial aggressor exception had to entail force or threat of force. The defense wanted no mention of the initial aggressor exception to the jury, and objected to citing Gibbs or even mentioning the idea of force or threat of force. In effect, this took off the table what might well be something for the jury to decide: just what constitutes a threat of force, and whether the following of Martin by Zimmerman and his later confrontation with Martin constituted a threat of force. The prosecution circled back to Gibbs, arguing that the following itself could be viewed by a jury as the threat of force. Let the jury decide, the prosecution asked, and please instruct them to explicitly consider this question as framed by the statute. One might even imagine the question appearing on a juror ballot.

The defense argued back that no such instruction was needed, and went to the extraordinary length of telling the judge that she’ll get reversed if she includes it, ignoring Gibbs. At that point, Judge Nelson seemed to be running scared, and she backed down. “The court is not going to give it,” she stated, without any rationale or analysis. This, to me, sealed the deal for the defense.

Here is why Gibbs matters. In that case, the court reversed the trial court decision (in another racially charged case) because the judge did not clearly state that provocation had to be through force or threat of force. In Gibbs, an African-American woman said good morning to a white couple. When they didn’t acknowledge the greeting, the defendant challenged the snub. The white woman, Julia Osmun, responded with a racial epithet and other insulting language: “Get away from here you dirty nigger, you don’t belong here.” The defendant responded in kind, and upped the ante with more “racial” comments and then made a “mooning gesture.” A physical fight came next: Osmun rose to her feet and started swinging her fists at Gibbs. Gibbs responded by pushing Osmun in self-defense. Osmun staggered back to the bench where she had been sitting and died of heart failure shortly after being driven to the hospital. Gibbs was convicted, but the decision was reversed because the judge didn’t include the “force or threat of force” language in the jury instruction.

If the jury had followed Gibbs, or been given the chance to do so, then Zimmerman’s following of Martin or any of the interactions preceding the physical fight could have met the standard of provocation under that case. But Zimmerman’s defense used Gibbs to persuade Judge Nelson not to give the instruction at all. The conference on this suggested some give and take, and perhaps some flexibility by the defense. They might have accepted the initial aggressor exception if it was expressed with some limiting language. But the prosecution simply said, more or less, all or nothing at all with respect to the jury instruction. The jury may have deliberated this, but on its own, and not in the context of a limiting instruction from the judge, and without a full understanding of the law. This may have been the moment when the state lost the trial.