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Stand Your Ground and the Zimmerman Verdict

Jul 14, 2013

By Dan


An unarmed boy is killed by a man armed with a gun, and a jury says that, under the law of Florida, no crime has been committed.

 

The only real question before the jury was whether Zimmerman justifiably used deadly force. This was the only question, but as in many cases stemming from an altercation where death results, it can be a difficult one.  How do you assign blame to a series of cascading and emotional events? Someone cuts off a motorist, looks inappropriately at a spouse, spills coffee accidentally on a customer.

 

Unkind words are exchanged, arguments lead to fists, and fists lead to deadly force usually with a gun.

 

At what point is someone precluded from availing themselves of the justification of self-defense because of their own poor judgment or bad behavior.

 

In 2005 the Florida Legislature fundamentally changed the analysis used by juries to assign blame in these cases. When the legislature passed the Stand Your Ground law it changed the rules of engagement. It eliminated the duty to avoid the danger and it eliminated any duty to retreat.

 

If the Trayvon Martin killing was tried prior to the Stand Your Ground law being passed, the jury would have been told that self-defense was not available to Zimmerman unless he had used every reasonable means to avoid the danger. The jury would have been told that even if they believed Zimmerman had been attacked wrongfully by Trayvon, he could not use deadly force if he could have safely retreated or run away.

 

Here is the actual jury instruction read to Florida juries prior to the legislature’s enactment of Stand Your Ground.

 

“The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.

The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force. “

 

In this case, did Zimmerman use “every reasonable means within his power…to avoid the danger” or did he follow Trayvon despite admonitions that he did not need to?

 

Notwithstanding the forensics that Zimmerman suffered injury, could he have safely run away, or retreated from an unarmed teenager?

 

The jury did not get to analyze the case in these terms because the law of Florida after Stand Your Ground eliminated the duty to avoid the danger and the duty to retreat.

 

Here is the actual instruction that was read to the Zimmerman Jury:

 

“If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.”

 

While in the Florida legislature I strongly opposed the Stand Your Ground law because I believed it would provide defenses to people who had created the scenarios they sought protection from.  Or it would leave juries without the proper rules of engagement that ought govern predictable human interactions.

 

By taking away from the jury the simple notion that people have an obligation to “avoid the danger” or retreat if they could do so safely, they were, essentially, authorizing stupid, venal and, as in this case, often tragic behavior.

 

The case was not an easy one and, frankly, made harder because the prosecution failed to present a cohesive narrative choosing instead to offer alternative and inconsistent theories. But their job was unquestionably made much more difficult by the decision of the Florida legislature to fundamentally change the behavior we will tolerate from citizens who recklessly decide to take the life of another.

 

 

 

 




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Well written and clearly shows the huge shift the legislature created with this law. Trayvon never had a chance



While I have been emotionally attached to this incident, I have been reasonably detached. As a law student and a paralegal of 20 years, I reasonably believed manslaughter would have been the least path and hoped for a hung jury; but, as disappointed as I am with the verdict, the legal system yet again worked and the jurors did their jobs. It is time for the black community to write the wrongs and put the power of their votes into the hands of those who will attempt to at least, act on behalf of parents with some degree of success to take away the rights of those who would take our children and loved ones from us. I am reminded of how racially segregated this state is let alone our country. GZ may not have been found guilty of the crime, but make no mistake, he is not a free man. When Karma comes to collect, she is no kind lady. It proves that we, all Floridians who crave justice, must work diligently to repeal injurious laws that affects and impacts us all. It is time to turn Stand Your Ground on its head and introduce the Trayvon Martin Welfare Act . Thanks for the points of clarity and thanks for engaging.



Very good summary Dan. So how come Marissa Alexander wasn't aloud to use justifiable force in firing warning shots at her husband in her own home? I don't understand why stand your ground does not apply in her situation- wasn't she in danger of her life? How come she some had a duty to retreat, but Zimmerman did not?



I disagree. Dan writes"In this case, did Zimmerman use every reasonable means within his powerto avoid the danger or did he follow Trayvon despite admonitions that he did not need to? The problem before stand your ground is that prosecutors could contrive a list of "reasonable means" to get away and the defendant is guilty of murder if ANY of them stick. Maybe the person, under stress, didn't see a reasonable way out or couldn't think of it at the time. The new law changed the burden to make EVERY person involved in an altercation responsible. Stand up to leave the fight and someone shoots you as you walk away? Murder Punch someone once and start to walk away and get shot? Murder Punch someone and then get on top of them MMA style on the concrete and get shot? Not guilty. Both parties should take the opportunity to leave when available. According to Dan, just the act of following him was the reasonable way out. Ridiculous. A reasonable person wouldn't know that someone was going to punch you and jump on you if you followed him (which is what the jury believed). Why not go back further than following him? Since Dan obviously believes a reasonable person knew there was going to be a fight if he followed, a reasonable person should have kept the gun in the car, right? Under the old law, prosecutors could have argued that. This law puts the responsibility on both parties. Trayvon could have just laughed at George and said I'm just going home and i'm not bothering anyone, but you are welcome to follow me. He could have ran away, as is his right if he wasn't doing anything wrong. Heck, he could have even called 911 and got the police out there if he was in fear. But instead he got combative and this resulted. This is sad, no doubt. But the lesson is not to resort to violent behavior in the first place.



Check your facts, the Stand Your Ground defense was not used in this case.



"Stand Your Ground" was used by Zimmerman, but not by his defense team.



Dan, Thank you for this clear, concise explanation of the law and how the change made this jury's job so difficult.



we need to urgently change back the law !!



"Check your facts, the Stand Your Ground defense was not used in this case." Maybe you should check your facts. Although the stand your ground law was not used as a specific defense these were indeed the instructions the judge read to the jury. I heard them with my own two ears.



A boy? how about a complete description of Martin and Martin's weapon of choice was his hands, his body weight and the concrete sidewalk. People did from head injuries everyday, Martin struck Zimmerman first and that is where he made the mistake that ended his life. RACE BAITING



Absolutely right. We need more legislators like you and Nan Rich.



By their verdict the jury says that it agrees with Zimmerman's defense attorneys' claims that Zimmerman had the right to use deadly force in fear of his life, against unarmed teenager Trayvon Martin.Likewise, by their verdict the jury also says that Trayvon Martin, the unarmed teen doing nothing more than walking home from the store, did not have that same right to use deadly force, or any force, against the armed man who profiled and stalked him for no legitimate reason.



I question why the victim in this case is not also protected by the same law. When being followed on your way home and fearing your stalker, it seems the law should allow fighting back to protect yourself . That is truly standing your ground! The evidence clearly showed the victim was being followed. The protection of the law was applied to the stalker! Clear miscarriage of justice and left to stand as a legal.precedent will have tragic repercussions



Is the previous poster serious?? "Maybe the person, under stress, didn't see a reasonable way out or couldn't think of it at the time."Are you kidding me? The reasonable way out was to not get into your car and follow the kid in the first place!"Both parties should take the opportunity to leave when available. According to Dan, just the act of following him was the reasonable way out. Ridiculous. A reasonable person wouldn't know that someone was going to punch you and jump on you if you followed him "I can't even believe what people are saying about this case. Really? When Zmmerman got into his car with his gun and followed the kid, he had no reasonable duty to retreat- even when a dispatcher is telling him to do so- because the kid might punch you and jump on you? He was the adult in the situation. I certainly hope your kid isn't ever put into the same situation- because clearly he would have no chance and that seems to be just fine with you.It is absolutely insane to say it's okay to follow someone at any time you deem them to be a threat and then when they attack you to say you were defending yourself- after you instigated and elevated the situation. What should the kid have done when Zimmerman approached him a pulled out a gun? Did he have no right to defend himself? Maybe he did punch Zimmerman and maybe he did feel threatened at that moment- but to say that he had no moral obligation to retreat in the first place is what is ridiculous.The truth is the only people who really know the details of who was defending themselves are Zimmerman and Martin. But the fact that the law in Florida makes it okay to follow someone with a gun that you think may be a threat and them claim self-defense when YOU kill them- is deplorable. I fear we will see a lot more of these circumstances if the laws are not changed.



Another commenter responded " A reasonable person wouldn't know that someone was going to punch you and jump on you if you followed him" and "Maybe the person, under stress, didn't see a reasonable way out or couldn't think of it at the time." I'm pretty sure that most reasonable people would agree that following, approaching, and initiating conflict with a "suspected criminal" could possibly result in danger. Zimmerman believed it too, otherwise, why bring the gun? And if Zimmerman couldn't handle the stress of being engaged in a fistfight that he provoked, then perhaps duties of neighborhood watchman should have been restricted to just that....watching. The legal system did not work. Yes, perhaps one segment, the jurors, did their job as instructed, but a poorly written law, a lackluster prosecution, and failure of law enforcement to conduct a proper investigation in a timely manner all contributed to the failure of justice in this case.



The most telling fact to me is that "Zimmerman Says He Doesn't Regret Actions in Shooting" Let us for one moment imagine that Trayvon Martin was actually threatening Zimerman, and that's why Zimmerman shot him to protect himself. But then for Zimerman not to feel any regret that he just killed a fellow human being? No regrets at all? http://www.nytimes.com/2012/07/19/us/zimmerman-says-no-regret-for-actions-in-trayvon-martin-shooting.html?_r=0



Stand your ground Is about not running away, We are animals and just like them we prey upon and are preyed upon. Running is a signal of fear and that signal sends a message to the predator that you can be taken down. You run you will likely be overtaken and consumed. Your choice is limited if you have a duty to retreat and wait for the police who have no duty to protect you as several SCOTUS opinions have stated. You and only you are responsable for you.



Dann, I feel that Zimmerman following Trayvon was "unlawful". I don't know law, but does someone have the right to follow someone who they don't know, and who does not know them? So I still don't see how the jurors didn't find him guilty. The only way that is legal is if a mime is following you and imitating you in broad daylight.



Thank you for putting this message out, Dan. This is, yet another demonstration that our elected officials effect so much of our lives and we have to be SO careful that we're conscious of who they are. When are you running for office, again? I would love to work on another of your campaigns!



Dan, the prosecution's case seemed amateurish, at best; almost as if they were colluding with the defense. The evidence presented was weak and the cross-examinations were even weaker. They were so incredibly useless that the Not Guilty verdict was the only right conclusion by the jury.Even the charges were questionable. I believe the prosecutors were trying to be historically significant rather than to be legally accurate. With what we know, involuntary manslaughter was the best they could have hoped for. I don't believe that Zimmerman intended to kill Martin, but his actions certainly led up to the ensuing events. He's Not Guilty of second degree murder, but he is far from innocent as O'Meara is trying to get everyone to believe.We blew this one big time as a nation by allowing the circus to divide us in the ways that it has. Thanks for providing some clarity for us.



So basically, "stand your ground" applies even after you've purposely pursued the person to the point of confrontation? Ridiculous.



The defendant was overcharged. The jury didn't find that "no crime" was committed. they found that the elements of 2nd degree murder were not proven beyond a reasonable doubt.. If the defendant had been charged correctly, with criminal negligence or manslaughter the verdict may very well have been different. I don't know Dan. I assume he is not trained in the law as only a layman would not understand this distinction and thus a layman should not be commenting on the law.



As a Canadian I have to say that's it's highly doubtful that I'll ever visit Florida again now that I know any American can shoot me dead and never spend a day in jail for my murder.



HI DAN, HOPE YOU ARE WELL. REGARDING THE MARTIN CASE IF THE STATE DIDN'T HAVE A 100% SOLID CASE, AND THE JURORS HAD SOME DOUBT, YOU HAVE TO FIND THE DEFENDANT NOT GUILTY.IN MY OPINION, I HAD SOME DOUBT. THE STATE DIDN'T DO A GOOD JOB.FROM WORKING IN COURT FOR SO MANY YEARS WITH JUDGE DEEHL MAY HE REST IN PEACE, I LEARNED A LOT.IF THERE IS A SLIGHT DOUBT, YOU MUST ACQUIT. I KNEW THERE WOULD BE RIOTS AS IN THE OLD DAYS, THE 1980'S AND I TOLD MY NURSES THAT YESTERDAY IT WOULD EITHER BE ACQUITTED OR HUNG JURY.



Thank you.



Thank you, Dan, for being a voice of reason.



I like the change. Not sure why I would have the duty to retreat from a place I have a right to be.



well said,Darrin



Thanks Dan. Stand your ground has got to go.



I think we need to do all we can to avoid such a travesty of justice as in this case. I support Dan Gelber's position. The context of Florida's current social relations, security concerns, and gun control controversy have contributed to a terrible outcome.



Dan...Your analysis is much appreciated. I recall you were only 1 of 20 Florida lawmakers to vote Nay on Stand Your Ground.Quite a few Democratic members of the House and the entire Democratic caucus in the Senate voted Yea. Where was the political breakdown that session?



Thank you for giving clarity to the subject. The issue is not the verdict or the jurors, it is everything that led up to the trial.



Trayvon was an innocent boy on his way home with no fear of harm in his own community. GZ was so inflated with his own self importance as a part of the community security force. After identifying Travon as someone suspicious, he didn't hesitate to follow him, even after he was told to stay in his car by the police, because he had the sence of superiority with a gun in his waistband. He wanted to play the hero and capture "the bad guy". And then when everything went wrong he cries self defense. Self defense from what? A bag of candy and a drink? This trial was a tragidy and Trayvon, unfortunately, paid the price.



If you are saying that Zimmerman was reckless, I can only say that laying there and getting pounded (possibly until death) would not have been a wise option. If he was wearing a gun and was laying unconscious, perhaps he could also have been the one who ended up shot. Let's face it - if Mr. Zimmerman had shot a white man who had a record of possible theft, drugs and tagging at his neighborhood school, I don't think the Governor's office or the DOJ would be getting involved. Had this case not been so politicized, the DA might have taken more time in gathering evidence and there might have been a different outcome. We will never know. I am glad we have Stand Your Ground. You are comparing apples and oranges here. It was a circus.



Even without the Stand Your Ground law, how could George have retreated if Trayvon punched and knocked him down and then held him down while battering him? Nice try at inflaming liberal democrats with your article, but an intellignet reader will not be moved.



As usual, you succinctly, accurately and with great reason



Well said!



Perhaps you could explain how Zimmerman is supposed to run away with a 17 year old athletic experienced fighter on top of him. According to Zimmerman, Martin appeared four minutes after he disappeared and punched him in the nose, knocking him to the ground. If Zimmerman had been able to get away, the shooting probably would not have been necessary.



Zimmerman was on his back with Martin on top. How could he retreat?



What do you suppose would have happened if Martin had succeeded in beating Zimmerman's head into the ground? Or if that had resulted in Zimmerman's permanent disability or even death? Do you think Martin would have been acquitted? I don't know the answers, and obviously we never will....



George Zimmerman must be prosecuted by the DOJ for his criminal murder of a child.He was turned down when he applied to be policeman as he failed the psych part of the application. He had a gun and he was going to use it after illegally profiling Trayvon. At this point the trial has set a poor example and this must be rectified. Stand Your Ground, must be repealed or else more such tragedies will occur.



I thought the Stand Your Ground law did not apply to this case. I recall that decision being made early on in this case.



Thank you for your informed opinion. We really need to get rid of that law.Also, I will vote for you next time you run for state office. Please do run.



Dan,What a GREAT summary - I remember when Jeb and the Repulbicans signed that into law and I remember thinking it was the start of the wild west all over again - and here we are...We need to repeal this stupid law and make people accountable for their actions - he should have had a duty to retreat - to wait for the Police and Trayvon would be alive today.



A child is dead and the Florida legal system approved. It's okay to kill children in Florida.



WHO IS INTERPRETING THESE INSTRUCTIONS?ZIMMERMAN WAS WRONG FROM THE VERY (1ST.) FIRST INSTRUCTION! BY HIS CALL TO THE AUTHORITIES, WHO KNEW WHAT HIS NEIGHBORHOOD-WATCH ENTAILED, HE WAS "INSTRUCTED" NOT-TO-LEAVE-HIS-CAR, WITH A GUN! THAT IS HOW THIS ESCALLATED FROM, A KID WITH SOME CANDY, HEADING HOME, IN THE DARK, WITH PEOPLE (witnesses hmmmmm!) WHO "MAGICALLY" GOT-PERFECT-NIGHT-VISION" , and saw POOR GEORGE, GET BEAT-DOWN-AND-THANK-GOODNESS-HE-HAD-HIS-GUN! WHAT A TRAVESTY TO JUSTICE! WHAT A DISCRACE, and actually, the law was perfectly clear, when it came to "NEIGHBORHOOD-WATCH-INSTRUCTIONS! ZIMMERMAN WAS/IS/AND SHALL REMAIN "GUILTY!" IT WON'T BRING TRAVON BACK, BUT IT ALSO IS;***"JUST- ANOTHER SLAP-IN-THE-FACE-TO-JUSTICE!"***Thanks, Nancy Woodward



I see that the stand your ground law left only a little room for the jury to convict. "Little room" is right here: ...the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.death or great bodily harm to himself. Are you kidding me? Did anyone see his wounds? They were wounds of a normal fist fight. There was not even a hint of great bodily harm or chance of death. The sidewalk concept was a big farce. Why oh why didn't the prosecution work harder at refuting the defenses claims of bodily injury? Had the jury not found "chance of death or great bodily injury" in this case, then manslaughter was a certainty and perhaps even 2nd degree murder (which needed hatred and ill will.)



"In this case, did Zimmerman use 'every reasonable means within his powerto avoid the danger' or did he follow Trayvon despite admonitions that he did not need to?"So, what are you implying? That Trayvon was a dangerous wild animal like a tiger? And you have to stay away from people like him or you deserve what happens to you? That's not the law, and you know it. The requirement that the victim avoid the danger comes into play only after the victim has become a victim of a crime. The crime triggers the need for a fight-or-flight response, and the old law said you had to take flight if possible.



I don't think that's right as regards this case. There wasn't sufficient evidence to show that Zimmerman had a chance to retreat, because there was nothing to challenge his story that he was on his way back to the car when Trayvon Martin (supposedly) jumped him. And as Eugene Volokh pointed out on the Volokh Conspiracy blog, in every state but Ohio the burden of proof is on the prosecution, whether or not the state has a Stand Your Ground law. If there were better eyewitness testimony this might have made a difference (and your general points about the law seem sound) but in this case I don't think it made much difference.



And what of the woman convicted for 20 years for firing a warning shot? Why doesn't the law apply to her?



Most succinct explanation of the difference. Many thanks.



It may hearten some to realize that, under the same law, any young black person is entitled to fear that GZ will do again what he did before and therefore stand his ground and respond with deadly force. So perhaps, equally, GZ should keep his gun loaded and aimed at all times. Or avoid young black people, by a considerable distance. Is the preemptive strike covered by this law?



Good article explaining Stand Your Ground, but unconvincing. All evidence presented in the case either supports or is agnostic to the proposition that Martin was on top of Zimmerman punching him. If this is the case, it follows that Zimmerman, not Martin, would be the one yelling for help repeatedly, which indicates A) He's no longer interested in fighting and, more importantly, B) He cannot "dutifully retreat" from the fight as he would be expected to in non-stand your ground states. The jury would've come back with the same verdict no matter where this happened.



ARE YOU SERIOUS OR ACTIVELY TRYING TO SOUND STUPID? STAND YOU GROUND LAW HAD ABSOLUTELY NOTHING TO DO WITH ZIMMERMAN CASE. IT WAS A SELF DEFENSE CASE AND STAND YOUR GROUND WAS NEVER AN ISSUE. Furthermore, your ignorance is pathetic, insulting and nauseating. YOUR ARE A DRONE WHO GETS ALL HIS INFORMATION SECOND HAND, LISTENING TO LEFTISTS WITH AN AGENDA. EDUCATE YOURSELF - YOUR IDIOCY IS EMBARRASSING. BLACKS BENEFIT MORE THAN ANY RACE RACE FROM FL. STAND YOUR GROUND LAW http://bit.ly/14piHSf



Stand your ground had nothing to do with this case, and the defense never invoked stand your ground as a defense. You are completely wrong. The stand your ground instructThe only factual submissions given to the jury were based on the statements made by George Zimmerman to the police, and further bolstered by the introduction of his interview by Sean Hannity. That was to the effect that Trayvon Martin initially assaulted Zimmerman by striking him in the face, whereupon he knocked him down and then proceeded to get on top and straddle him and then strike him repeatedly with his fists, including by forcibly banged Zimmerman's head against the ground and the hard concrete. The only witness who actually saw a portion of the fight, though from a distance, verified that the younger man was on top and beating down on the person on the ground MMA ground and pound style. Obviously, George Zimmerman had every reason in the world to fear death or great bodily injury. And he had no ability to retreat. It was only when he said Trayvon told him that he was going to "die tonight" that he was able to defend himself by firing his weapon at the younger and stronger man who was holding him down and hitting him.Therefore, at no time since the altercation began, and prior to resorting to deadly force, did Zimmerman have any opportunity whatsoever to retreat. He acted in self defense, and the jury obviously accepted his version of events.



I ahev read the comments, but here is one thing that is clear, as a neighborhood watch person the object is to avoid conflict and have law enforcement handle it. GZ could have diffused the situation by 1st identifying who he was, why he was concern and the history of breakins that TM would not be aware of since he did not live in the community and was just visiting. If you are confronted you have the right not to back down, however if you are the initial aggressor you should forfeit that right should you losed the upperhand. Note that TM phone was in the grass and what person drops his/her smartphone unless surprised by an event whether GZ grab him by the arm or got into his personal space. There had to be a series of exchanges prior to the physical altercation. Only GZ and TM knows and one of them is dead. Sounds like the old west like you are innocence unless you shoot him in the back that would clearly indicate retreat of some fashion. My thoughts Dan Mac (not the author)



What you are missing is that Judge Nelson removed the part of the self defense law that deals with the initial aggressor. The prosecution objected, the judge overruled, and the judge stated the defense wants to leave that part out so she was going to leave it out. By removing that part, she handed the not guilty verdict to the jurors on a silver platter, leaving them no option but to find him not guilty. The problem here was with the judge, even if we remove the racist profiling performed. See these articles: http://www.huffingtonpost.com/alafair-burke/george-zimmerman-jury-instructions_b_3596685.html , http://www.huffingtonpost.com/2012/07/16/george-zimmerman_n_1676729.html



If Stand Your Grounds was not the charge of this case; as the charges were 2nd degree murder and lower possible manslaughter, if this is what the Defense also has said and is some opinions voiced in your comment section; then Stand Your Ground should not be a factor in exempting zimmerman from taking the stand in a civil case. You can\'t have it both ways (oh yes, Florida makes it\'s own laws to fit the people). The question is - which people. Until this law affects people personally, it won\'t have an impact on you one way or the other.



Well put, but George knew those laws



"Trayvon never had a chance"Of course he did.1) Run away to his fathers house when he noticed Zimmerman following him.2) Not throw a sucker punch at Zimmerman.3) Not get on top of Zimmerman, pinning him to the ground where Zimmerman could NOT retreat.Sorry everyone but Trayvon was not the angel everyone tries to make him out to be. He was a thief, vandal and drug user. He was as responsible or even more responsible for his own death.Stand your ground does not apply when you cannot escape like someone on top of you pounding your face into the concrete.



Mr. Dan please tell me with this are they saying that its okay to kill someone and you won't go to jail, also people want to say that race do not play a part of this and want to sweep it under the rug. racist is alive I'm worries about this because I'm a mother of 3 boys and a grandmother of 4 grandson also I have no faith in the legal system at all because its not make up for black people and that was show within this case. also just because the jury has spoken do not mean they are right.



Dan,This is a very well written article. I have a similar point. The stand your ground law seems unbelievably flawed as it excludes the totality of the event that leads to the use of deadly force. An example that comes to mind is someone with a concealed firearm that goes to a bar, sports event, or any public venue where they have a right to be and provoke someone into a physical confrontation. Once it is established that they are being physically dominated in a situation of their making the concealed weapon is draw and used. This type of scenario lets someone walk in Florida (and states with similar laws) jury nullification would appear appropriate.John



I agree wholeheartedly




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