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Andrew

It all depends on how you see provocation, though. After all, Zimmerman was a legal resident of the complex, too, and simply following someone and asking them questions, while probably irritating, is not a crime or a provocation. And as for disproportionate force, here's a case in which self-defense was allowed when the person being attacked rammed a knife into the attacker's throat without warning, nearly killing him:

http://www.spiegel.de/panorama/justiz/streitfall-notwehr-ich-habe-noch-nie-so-viel-angst-gehabt-a-659320.html

Kristian Köhntopp

1. http://de.wikipedia.org/wiki/Notwehr#Notwehrprovokation

This basically nullifies Notwehr in this particular case (Situation was provokes, 'Recht muß Unrecht nicht weichen' cannot be applied here, at all.

2. Assuming that wasn't the case, this (armed vs. unarmed) is a classical case of http://de.wikipedia.org/wiki/Notwehr#Notwehrexzess (excessive use of force, far more than was necessary to handle the situation). E.g. use of arms against an unarmed attacker is extremely problematic when claiming Notwehr.

Paul

Hi Andrew,

Just as an addendum:

As I understand the specifics of the case, Martin was lying on top of Zimmerman and pummeling him with blows and Zimmerman said he could not physically stop him from attacking him because Martin was stronger? If that is deemed to be the case in Germany his actions (shooting) could very well be seen as not disproportionate because the courts have long determined, that a defender need only use the (mildere Mittel) lesser defense, when it is guaranteed without doubt to end the attack on his rights fully and immidiately. He does not have to resort to defenses that put himself in danger or which are unclear whether they would help. Thats why I am saying you have to look at wether Zimmerman can be proven beyond reasonable doubt to have provoked the attack or what I indeed forgot in my earlier post that perhaps Martin being underage put him under the duty to retreat. What I hear from this case I have strong doubts that a German court would have found Zimmerman to have acted disproportianately in a situation where somebody stronger was lying on him.

As a last thing a big recommend for you the wonderfull book "Rethinking Criminal Justice" by Columbia Law-Professor George P Fletcher, which helped me immensely understanding American Criminal law from an German perspective. In it he goes through the doctrine of American law constantly comparing to the legal theories of other European and European-influenced systems (including Soviet Union). Although it got to be said that most of the book deals with Germany - USA comparison the other systems are only used when this isn't fruitfull.

Particularily in cases like this that deal with General Principles like self-defence (actually necessary defence in the US) it is very insightfull.

Google-Books has it: http://books.google.de/books?id=lSnomFVuka8C&lpg=PP1&hl=de&pg=PA864#v=onepage&q=self-defense&f=false the comparative treatise on the duty to retreat and its intelectual founding starts at page 864.

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