Author Topic: 776.032 - When is it invalidated?  (Read 11661 times)

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Offline AJ

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776.032 - When is it invalidated?
« on: July 04, 2012, 07:36:09 AM »
This is a question that I've had for a few weeks now and I thought I'd give it a shot here to see what people think. I think the only way I can get exactly what I'm looking for is by use of a hypothetical, so here it is:

Lets say Judge Lester throws out the case (with or without prejudice) for a reasons that have nothing to do with a Stand Your Ground/Immunity hearing - let it be any reason you want. Since Mr. Zimmerman was arrested and charged, could he then be found facing civil filings, or do the criminal charges have to go all the way through trial to include a verdict (no matter the outcome)? Would Mr. Zimmerman first have to have an immunity hearing before such filings could happen even if the criminal charges are tossed, or would such a hearing be made in the process of the civil trial?

The way I understand it is that if charges are thrown out it is as if the charges were never brought to begin with, so I would assume he would still be protected from civil actions based on 776.032.

Thoughts?

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #1 on: July 04, 2012, 08:46:30 AM »
The criminal charge has to be disposed of, somehow.  I can envision the state's murder charge being ruled invalid, but the state would probably substitute manslaughter for murder II, leaving a criminal charge standing.

Zimmerman's self defense claim can prevail in one of two ways.  Either as a finding by a judge, or by a jury.  If the finding is by a judge (before, or even after trial), then he will have obtained statutory immunity.  If Zimmerman prevails by a jury finding that the state did not disprove self defense, beyond a reasonable doubt, then Zimmerman is subject to a lawsuit for civil liability.

The logic is fairly simple.  The standard of proof for a finding of self defense by a judge is the same as the standard of proof in a civil trial.  If the court finds it more likely than not that Zimmerman acted in self defense, then the court won;t allow a separate finding in the opposite direction.  There is also the legislative intent to spare a person who is justified in protecting himself from the ordeal of trial, and being subjected to money damages for a legally justified act.

There is of course the outcome in the other direction, a jury finds Zimmerman not justified in his use of force.  He would face civil liability as well.

Offline Jozz

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Re: 776.032 - When is it invalidated?
« Reply #2 on: July 04, 2012, 09:25:42 AM »
This is a question that I've had for a few weeks now and I thought I'd give it a shot here to see what people think. I think the only way I can get exactly what I'm looking for is by use of a hypothetical, so here it is:

Lets say Judge Lester throws out the case (with or without prejudice) for a reasons that have nothing to do with a Stand Your Ground/Immunity hearing - let it be any reason you want. Since Mr. Zimmerman was arrested and charged, could he then be found facing civil filings, or do the criminal charges have to go all the way through trial to include a verdict (no matter the outcome)? Would Mr. Zimmerman first have to have an immunity hearing before such filings could happen even if the criminal charges are tossed, or would such a hearing be made in the process of the civil trial?

The way I understand it is that if charges are thrown out it is as if the charges were never brought to begin with, so I would assume he would still be protected from civil actions based on 776.032.

Thoughts?

Unless George is granted immunity under SYG. He may be taken to Civil court with any other outcome, though I'm not sure of the time frame of which the Martin's could file a civil suit. Crump knows the answer to that question and he's salivating thinking about it.

Offline friendofinnocence

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Re: 776.032 - When is it invalidated?
« Reply #3 on: July 04, 2012, 09:51:23 AM »
Cboldt, are you sure this is correct?

"If Zimmerman prevails by a jury finding that the state did not disprove self defense, beyond a reasonable doubt, then Zimmerman is subject to a lawsuit for civil liability."

Offline Jozz

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Re: 776.032 - When is it invalidated?
« Reply #4 on: July 04, 2012, 09:55:11 AM »
Cboldt, are you sure this is correct?

"If Zimmerman prevails by a jury finding that the state did not disprove self defense, beyond a reasonable doubt, then Zimmerman is subject to a lawsuit for civil liability."

If they don't grant him immunity in a SYG hearing then he is subject to civil charges. OJ Simpson was found innocent in criminal court, but lost in civil court. That's been played out many times before. That's the reason why immunity from civil charges was built into the SYG statutes.

Offline unitron

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Re: 776.032 - When is it invalidated?
« Reply #5 on: July 04, 2012, 10:08:41 AM »
If they don't grant him immunity in a SYG hearing then he is subject to civil charges. OJ Simpson was found innocent in criminal court, but lost in civil court. That's been played out many times before. That's the reason why immunity from civil charges was built into the SYG statutes.

So ALEC and the NRA would have been on OJ's side if he'd only used a gun instead? ;)

Offline friendofinnocence

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Re: 776.032 - When is it invalidated?
« Reply #6 on: July 04, 2012, 10:13:49 AM »
If they don't grant him immunity in a SYG hearing then he is subject to civil charges. OJ Simpson was found innocent in criminal court, but lost in civil court. That's been played out many times before. That's the reason why immunity from civil charges was built into the SYG statutes.

Jazz, Jeralyn has said the opposite on several occasions.  Zimmerman need only show some evidence of self defense at a full trial to get an immunity instruction to the jury.  I think cboldt simply had a typo in the sentence I questioned above.

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #7 on: July 04, 2012, 10:14:19 AM »
Cboldt, are you sure this is correct?

"If Zimmerman prevails by a jury finding that the state did not disprove self defense, beyond a reasonable doubt, then Zimmerman is subject to a lawsuit for civil liability."

I'm sure it is generally true, although O'Mara can appeal even a jury finding, and obtain immunity on appeal.  He does this by moving for a directed verdict on the basis that the state did not produce evidence to rebut the claim of self defense.

But, assuming the court below follows the law (and that is not a good assumption), Lester rejecting a claim of self defense under a motion for 776.032 immunity is conclusive.  The trial usually follows this, as the point of immunity is to avoid the trial in the first place, so moving for immunity usually precedes trial.  Defendant isn't limited to one such motion, the same issue (defendant is entitled to immunity) can be raised after trial, after both sides have presented all of their evidence, and even after the jury has considered the case.

State v. Jarkas Grant of 776.032 Immunity (Dec 5, 2011)

This is a post trial grant of immunity.  Decision went to defendant due to absence of other eyewitness, and discounting of the state's circumstantial evidence.

But, if the judge rejects a motion for immunity, and the jury acquits, there is no 776.032 immunity.  The fact that the evidence is insufficient to find criminal culpability does not mean the evidence is insufficient to find civil liability.

Offline Jozz

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Re: 776.032 - When is it invalidated?
« Reply #8 on: July 04, 2012, 10:17:51 AM »
So ALEC and the NRA would have been on OJ's side if he'd only used a gun instead? ;)

No, but that's not the point. The point is that someone cleared of criminal charges can be found guilty of civil charges for the same issue.

 ;)

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #9 on: July 04, 2012, 10:18:30 AM »
Jazz, Jeralyn has said the opposite on several occasions.  Zimmerman need only show some evidence of self defense at a full trial to get an immunity instruction to the jury.  I think cboldt simply had a typo in the sentence I questioned above.

What Jeralyn has said, and she is correct, is that Zimmerman only need show a scintilla of evidence in order to get a self defense instruction.  If the jury then finds that the state has not disproven self defense, beyond a reasonable doubt, then the jury must acquit.

There is a difference between acquittal after trial, and immunity from trial in the first place; although both outcomes are supported by finding the use of force was justified in self defense.  In a trial, a little bit of self defense evidence is enough - if you have a little bit of doubt about the state's theory, you have to acquit.  But for immunity, the defendant has to show the force was more likely justified, and less likely unjustified.

Offline friendofinnocence

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Re: 776.032 - When is it invalidated?
« Reply #10 on: July 04, 2012, 10:24:40 AM »
From TalkLeft on another thread:

If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's  ruling has no preclusive effect....

Such a defendant would still be free at trial to plead his claim of immunity to the jury. At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt.

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #11 on: July 04, 2012, 10:33:20 AM »
From TalkLeft on another thread:

If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's  ruling has no preclusive effect....

Such a defendant would still be free at trial to plead his claim of immunity to the jury. At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt.

I think Jeralyn has mispoken there.  Defendant doesn't get an "immunity instruction" and doesn't plead "immunity" to the jury.  Defendant asserts the action was a justified use of self defense, gets a self defense instruction, and the jury either finds the state has disproven the self defense claim beyond a reasonable doubt, or rejects the self defense claim because the state has proven, beyond a reasonable doubt,  the action was not a reasonable use of force under the circumstances.

If you look at all of Jeralyn's posts on the subject, you'll find she says this; and that a jury does not have the power to grant immunity from trial.  The immunity statute says it too, at 776.032(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)"

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #12 on: July 04, 2012, 10:56:04 AM »
From TalkLeft on another thread:

If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's  ruling has no preclusive effect....

Such a defendant would still be free at trial to plead his claim of immunity to the jury. At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt.

Looking at where that originated, I see it is from an opinion by Judge Hirsch in the Wyche case.  So, I'll rephrase to say that Judge Hirsch misspoke, and I think Jeralyn riffed off that for awhile (maybe she still holds this opinion) that a defendant can argue both to the jury, self defense, and separately, immunity on account of self defense.  I have no clue how to differentiate those two (self defense, and immunity on account of self defense), and I know of no jury instruction that concludes in a jury finding immunity.

I can see the source of your belief, FWIW.  And too, I understand if you don't find my presentation to be persuasive in light of Jeralyn and Judge Hirsch both saying the defendant can "plead immunity" to the jury.  I can't clarify their remarks for them.

Offline IrishGerard

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Re: 776.032 - When is it invalidated?
« Reply #13 on: July 04, 2012, 01:03:50 PM »
From TalkLeft on another thread:

If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's  ruling has no preclusive effect....

Such a defendant would still be free at trial to plead his claim of immunity to the jury. At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt.

Prior to reading this thread I assumed that acquittal and immunity would be synonymous.
After all, if the jury believes that zimmerman acted in self-defense (776.012) then immunity from civil action (776.032) would automatically apply. But a jury acquittal of murder or manslaughter is just that; right? It makes sense that the immunity applies only to a pre-trial finding.

If the previous decision not to file charges, as a result of the initial investigation, was upheld and zimmerman had never been arrested, would immunity from civil action automatically apply? I know it was his decision not to file, but I dont recall seeing an official finding from Wolfinger in regards to 776.012 & 776.032  :-\
 

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #14 on: July 04, 2012, 01:20:10 PM »
Immunity from civil action is an "odd duck."  There is no way to prevent somebody from filing a civil action, they have a right to file one.  776.032 says that if a person files a civil action, and the court finds immunity, then the person filing the civil action will be subjected to a judgment for costs.  In other words, the immunity from civil action is in the form of a financial disincentive.

I assume that a finding of immunity in a criminal case is useful to the civil case.  Zimmerman could produce the criminal court finding of immunity, to the attention of the judge presiding over the civil case, pretrial.  I suspect that the civil court would find that evidence to be conclusive and final, and would not conduct an independent hearing.

An alternative would be a prosecutor's decision to not charge, so there would be no finding of immunity by a criminal court.  I would expect a civil court hearing, with the risk of judgment against the plaintiff if the civil court took notice of the decision to not file charges (e.g., see Chief Lee's public statement that arrest was precluded by 776.032), or if the civil court conducted an independent hearing.

 

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