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Question About Florida Civil Immunity

Here’s an interesting question about Florida’s civil immunity law. When does it kick in? Florida, like many states, provides civil immunity to anyone who is involved in legitimate and lawful self-defense situation. But how do you define that? Does it only require the authorities not to bring charges? Does it require you be no billed by a Grand Jury? Do you have to go to trial and be acquitted?

If that answer is up in the air, I think we’ll find out what the answer is in this Zimmerman case.

9 Responses to “Question About Florida Civil Immunity”

  1. terraformer says:

    Just like for OJ, the civil and criminal cases are separate. Lack of a criminal charge will not preclude the civil case (though makes it significantly harder), but the law makes the bar lawful SD which the civil trial court should instruct the jury to find on preponderance of the evidence (barring any FL specific tort peculiarities). The burden to prove no SD should be on the plaintiff IIRC but again, on preponderance.

    The interesting question will be if SD will be considered an affirmative defense and if so, does the court get to shift the burden onto the defense to prove self defense and/or disprove negligence. I do not know what would happen in FL on this point. That he appears to have readily admitted to intentionally pulling the trigger, negligence becomes harder to prove and so you may expect the plaintiff to say his pursuit of the deceased was the act of negligence.

    This will be interesting court watching regardless.

  2. Jason says:

    Many states dgu laws specifically exempt protection Fromm actions done while committing a crime, if he inn any way accosted, touched, prevented from leaving the victim, I would think you would have assault, unlawful arrest, and possible kidnapping as theoretical crimes to strip the dgu protection.

    I think sd is gonna be real difficult to prove when he was told to leave it alone, followed an unarmed kid to within 100 ft of kids home, and shot him.

    If anything the kid had a sd defense against the guy to beat his ass (which is my personal guess at what happened, and which ended poorly for him)

    • Patrick says:

      I agree with what might have happened, but FL law means that Zimmermann is going to walk, absent a real and credible set of evidence he intentionally precipitated the event.

      There is a section of law that allows him to be prosecuted, but getting a real conviction from a theoretical conviction is going to be damn hard. It all hinges on whether Zimmerman was in a “place he has a right to be” and whether Martin was doing the same. If they were both trespassing, then Zimmerman could theoretically be prosecuted. If Zimmermann chased Martin onto property that Martin had permission to cross and Zimmerman did not…then Zimmerman is the attacker under the law.

      Again, probably won’t apply to this case.

  3. Patrick says:

    Florida law is specific on this point. Immunity is immediate and real.

    You need to look at two statutes to get the whole sense:

    776.013(3) A person who is not engaged in an unlawful activity, and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

    And directly to immunity:

    776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
    (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
    (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
    (3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

    Florida law gives true immunity and not just an affirmative defense. It actually criminalizes the arrest of someone who claims self-defense unless there is probable cause he broke the law. That is a high standard considering this is just for an arrest – most jurisdictions would arrest and let the ADA sort it all out. The law also means indictments are harder to get and easier to get out of.

    Some of this stuff can be abused, and some signs are that some people are abusing it in limited circumstances. But all anti-defense people need are a few real obvious cases and the public view of the policy could turn enough to prevent these types of immunities from taking root elsewhere.

    • Jason says:

      Dont forget this section, which possibly completely invalidates the earlier sections.

      776.041 Use of force by aggressor.–The justification described in the preceding sections of this chapter is not available to a person who:

      (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
      (2) Initially provokes the use of force against himself or herself, unless:

      (a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
      (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

      • Patrick says:

        Didn’t forget it, just pointing out the sections that are likely to be used by the defendant (shooter) and that are probably going to let him walk.

        The more I learn about this case, the more I am thinking Zimmerman would be the perfect test case to send someone to jail. It looks like he chased a kid down a street looking to play mall-cop. The kid did nothing wrong and (probably) had no less right to be where he was than Zimmerman did. People just should not be accosted for walking around in the rain with a hoody up.

        The facts are muddy, which is why I think we’re all so hesitant on outcomes. But the fact is that if Zimmerman can paint any scenario that says self-defense was reasonable, then he is probably getting off.

        The idea of me getting chased and shot for taking a short-cut in the rain by walking between some buildings is not appealing. The wife and I just talked about the known details, and she agrees it sounds fishy. We’re of the opinion that if Zimmerman chased the kid looking for a fight, he is responsible for the outcome. It ain’t Martin’s fault Zimmerman write a check his ass could not cash. And frankly, I can see a case where Martin was the victim. But we’ll never know.

  4. Terraformer says:

    Why is trespass the unlawful act we are discussing? The boy lived in the area and my understanding (which may be wrong) is that the fatal event occurred on or near a street. I don’t know about in FL but detainment by citizens is typically limited to witnessed felonies and a handful of other exemptions. A neighborhood watch program participant has neither police powers nor shopkeepers privilege. Unlawful detainment may be the underlying illegal act here and what I have been assuming this case will turn on mr mall ninja if it does go sour.

  5. Terraformer says:

    I should be more clear with the “dismissal” of trespass. I am not suggesting it is irrelevant, but as Patrick (btw very informative posts on FL law) notes, trespass may not absolve Zimmerman if he was also trespassing. And even if one tries to claim that Zimmerman had reasonable suspicion that the kid was a burglar who was going to destroy property, the mere trespass is likely not enough to be sufficient probable cause for this. Had the kid been holding “burglarious tools” or looking into windows, or some other articulatable actions to support the trespass was anything more than trespass Zimmerman may be safe. But if he tried to detain the kid for mere trespass then it may be that detainment which serves as the underlying unlawful act.

    Just food for thought. A lot of this relies on what his statements were to police. My experience with these mall ninja types is he likely was very proud and verbose about his actions and motives. If he was in the wrong, they will likely have enough on him to get an indictment.

    • Patrick says:

      I’m with you.

      Not even sure tools would be enough. You’d have to actually see someone trying to enter a building. Florida law presumes that forced entry into any residential structure is a violent act. It’s pretty lenient, but not so much that tools in a pocket/bag proves violent intent. You gotta actually be doing something. That doesn’t play in this case either way, from the sound of it.

      If we find that Zimmerman was on private property without permission, then he was “not where he had a right to be”. As far as I can tell, that means any immunity from prosecution he thinks he has is lost. If he started the whole mess, I hope he gets busted.

      Hopefully the ninja talked. But my guess is he knows the creed: every bullet has a lawyer attached; if you shoot, shut up.

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