Author Topic: 776.032 - When is it invalidated?  (Read 7832 times)

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Offline TalkLeft

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Re: 776.032 - When is it invalidated?
« Reply #15 on: July 04, 2012, 03:53:58 PM »
CBoldt, I think you are missing an important distinction. Stand your Ground is an immunity statute. By saying the defendant can plead immunity to the jury, what Judge Hirsch is saying in Wyche is that he can plead either stand your ground immunity or the affirmative defense of self defense.

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The "Stand Your Ground" law, however, does not speak the language of justification; it purports to speak the language of immunity. It does not provide a defense to criminal charges; it purports to provide immunity from criminal charges. It does not provide a defense at trial; it purports to provide a bar to trial, indeed even to arrest. This is the diacritical feature of the statutory scheme.

 Stand Your Ground is an immunity statute, self defense is an affirmative defense. Under stand your ground, no crime was committed, his conduct was lawful.  It is rendered immune from prosecution by the immunity statute. Under self-defense, his conduct is a crime unless he has a valid defense. Then the homicide is justified.  Theoretically, a defendant shouldn't be arrested or charged if STG applies. But they are, and then the immunity is decided later, in the form of either a pre-trial motion to dismiss  under SYG or via a jury instruction at trial.

A defendant  can plead stand your ground (immunity) even if the judge has rejected it at a pre-trial hearing. In arguing stand your ground, the defendant is arguing immunity from prosecution because his conduct is not a crime Ė it is immune from prosecution under the law. In arguing self-defense, he admits the killing but says he was justified in doing it.

Judge Hirsch, I believe, is correct when he says, as I summarized his statement in Wyche:

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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.

See this summary of his quotes from Wyche.

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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, whether pursuant to the "law of the case" doctrine, the issue preclusion doctrine (i.e., collateral estoppel), or any other doctrine. 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. To earn an acquittal, the defendant need do no more than show reasonable doubt - a quantum of evidence considerably less than a preponderance. And any attempt to bar a defendant from asserting a lawful defense based on the trial court's ruling that the defendant had not sufficientlv established that defense at a pretrial hearing would no doubt run afoul of the defendant's constitutional entitlement to a fair jury trial, see U.S. Const. amend VI; Art. I Sec16, Fla. Const.

The immunity in this context has nothing to do with a civil action. Here is a typical Stand Your Ground motion.

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #16 on: July 04, 2012, 08:51:11 PM »
Show me the two separate jury instructions, one for 776.032 immunity, and one for self defense.

I think Hirsch is substituting "may argue immunity" for "may argue self defense," because in the end, the same elements pertain to justify defendant's action.

As far as I know, you are the only prominent blogger/lawyer who has looked at 776.032 and concluded that some form of trial immunity can attach via jury decision.  Although a grant of immunity from trial at the conclusion of the trial is all a bit of nonsense anyway, as the immunity against arrest didn't work (he was arrested), immunity from detention didn't work (he has been detained), immunity from being charged didn't work (he is charged), and immunity from from trial didn't work (by the time the case gets to the jury, the trial has been conducted).  If the only immunity is against a guilty verdict, a self defense instruction gets there.

I also don't understand your remark that arguing for (and obtaining) 776.032 immunity at the criminal trial has nothing to do with immunity from civil suit.  If all you are saying is that the criminal trial reaches its own conclusion, I understand that.  But one of the points of 776.032 (besides serving to stifle an exuberant prosecutor) is to spare a person who used force in self defense from being sued for money damages.  Are saying that if the criminal jury somehow grants immunity, that grant stops at the criminal trial, and provides zero benefit in the civil case?

Offline TalkLeft

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Re: 776.032 - When is it invalidated?
« Reply #17 on: July 04, 2012, 11:45:20 PM »
Maybe it's a terminology issue. Stand Your Ground provides immunity. It can be raised at a  jury trial just like traditional self defense, even after a judge denies a pre-trial motion to dismiss the case.  But it is still an immunity statute while self-defense is merely an affirmative defense.  It's really not worth debating since the effect is the same: A jury instructed on SYG is told if SYG applies, the defendant must be found not guilty. A jury instructed on self-defense is told if  the state hasn't disproved self-defense, the jury must find the defendant not guilty. Every case I've seen and the legislature itself  refers to SYG as an immunity statute, not an affirmative defense. If SYG applies, the defendant did not commit a crime (because his acts were immune from prosecution) and he is not guilty. If self-defense applies, the defendant is not guilty because his conduct was justifiable. The result in either case is a verdict of not guilty. It's a distinction without much difference when it gets to a jury. But it doesn't change the character of SYG which is that it is an immunity statute.

See, Reagan v. Mallory, 429 Fed. Appx. 918, 920-921 (11th Cir. Fla. 2011):

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By defining "criminal prosecution" to include the arrest, detention, charging, or prosecution of the defendant, the statute allows for an immunity determination at any stage of the proceeding. Created to eliminate the need to retreat under specified circumstances, the statute authorized the immunity determination to be made by law enforcement officers, prosecutors, judges, and juries. In enacting the statute, however, the legislature did not restrict the time frame for determining immunity, but rather provided a time continuum stretching across the entire criminal process."

See State v. Horn:

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Section 776.032(1) authorizes a person to use force in defense in certain situations. The justifiable use of that force is declared "immune from criminal prosecution." Id. In turn, the legislature broadly defined the term "criminal prosecution" to include "arresting, detaining in custody, and charging or prosecuting the defendant."

State v. Peterson;

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The wording selected by our Legislature makes clear that [it] intended to establish a true immunity and not merely an affirmative defense. In particular, in the preamble to the substantive legislation, the session law notes, "[T]he Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others." Ch. 2005-27, at 200, Laws of Fla.

Also see the Yaquibe case: the court on a SYG motion can only decide the facts. It can't determine intent for purposes of second-degree murder if intent is disputed.  But if a jury finds SYG applies, the defendant would be not guilty  of second degree murder.  If intent is an issue, the judge has to leave it for the jury. So again, SYG could go to the jury.

The jury instruction for self-defense (justifiable use of force) is 3.6, available  here. The jury instruction for SYG reads:

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No duty to retreat. ß 776.013(3), Fla. Stat. See Novak v. State 974 So. 2d 520 [*644] (Fla. 4th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.

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

Define applicable forcible felony from list in ß776.08, Fla. Stat. that defendant alleges victim was about to commit.

All Judge Hirsch is saying is that if he denies a defendant's motion for stand your ground immunity before trial, the defendant can still raise it at trial if he produces some evidence to support it, and the jury will decide if it applies. The jury won't be told the judge ruled differently on his motion before trial.

I'm not saying anything different than anything else I've read elsewhere. I think it's just a terminology issue we are disagreeing on, but the effect is the same: The defendant can raise and the jury can determine Stand Your Ground just like it can traditional self defense. One is an immunity statute and one is an affirmative defense.  In both cases, the jury is told to acquit if the factors for either are met.

On the civil case immunity issue, I said it's not relevant in the context of the discussion of the criminal rules an case we were having. The issue of civil immunity is unlikely to come up in the criminal case, and I'm only discussing the criminal case. To me, the civil issues are a distraction, sorry.

On a related note, a few weeks ago a new decision came down that I just found that says a defendant can appeal a pre-trial denial of STG immunity through a writ of prohibition. If the writ is denied , then the issue is res judicata if he loses at trial and appeals. Rice v. State, 2012 Fla. App. LEXIS 10033.

A more productive conversation might be whether O"mara would appeal a denial of STG before trial and seek a writ of prohibition. I think the bond decision may be important there. O"Mara is unlikely to make George sit in jail another year for an appeal before trial, but if he's on bond, why not?

Iím done with this for now. I donít understand your point, and I gather you donít get mine.
« Last Edit: July 05, 2012, 04:46:12 PM by TalkLeft »

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #18 on: July 05, 2012, 03:34:55 AM »
Here's the outcome difference, so you see it's not just a terminology issue:

What other lawyers say is that if the case goes to [criminal] trial, and there is never a finding by a judge that 776.032 immunity attaches, then Zimmerman is subject to civil suit.

What readers interpret you as saying, is that the jury can grant 776.032 immunity, so even though Zimmerman will have undergone a criminal prosecution, he would be immune from a civil suit if he argues immunity to the jury.

I agree that 776.032 is an immunity statute; and in most of your cites, 776.032 is decided via motion, not via charging the jury.  Wyche is the only cite that says the defendant can argue [implied 776.032] immunity to the jury.

Anyway, that's the difference, and while you don't have any concern about whether or not civil immunity attaches (or not) depending on how the criminal case is resolved, a good number of your readers are interested in that point, and are quite confused on it.

You haven't persuaded me that the jury can grant civil immunity.  I know the court can grant it via motion.  But you and I differ as my position is that ONLY the court can grant it - that if Lester denies immunity (and it is upheld on appeal), then Zimmerman is subject to civil suit.

Offline TalkLeft

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Re: 776.032 - When is it invalidated?
« Reply #19 on: July 05, 2012, 01:30:19 PM »
I've never said a success at SYG at trial would bar a civil suit. I've never even thought about it. I'm only discussing the criminal case.

In the  Rice case I referred to last night, decided two weeks ago, the judge denied SYG and the jury considered and rejected it at trial. I don't know why you think it's a rarity.

In any event, I have said nothing about the effect of a finding of SYG immunity by a jury at trial in the criminal case on a civil case. I have only pointed out that SYG is an immunity statute, not an affirmative defense, that in criminal law the two are different, and SYG can be raised at trial even after a judge rejects it pre-trial.  You keep writing that is not correct, and it is correct.  So let's drop it because we are either talking about two different things or I am of the opinion you are not correctly stating the law as to the criminal case. 

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #20 on: July 05, 2012, 01:48:20 PM »
I've never said a success at SYG at trial would bar a civil suit.

At least one of your readers (not me) thinks you have said that.  They get there by defining the word "immunity" to include immunity from civil suit, which is included in the 776.032 scope of "immunity."  And if a defendant can argue immunity to the jury, your readers think you mean they can get 776.032 immunity from a jury, after a judge rejects a motion for 776.032 immunity.  And if defendant gets 776.032 immunity, then a civil suit is barred.

Yes, we are talking past each other, but the term "SYG" invites confusion because it covers several legal inquiries, including absence of duty to retreat and immunity from prosecution.  You've very well cleared up the scope of your position in my mind, and I think we see the law exactly the same way.  I don't think a grant of immunity is a rarity, I know for a fact it is not.  My very narrow point all along has been only that any immunity from trial is granted by a judge, not by a jury.

Hopefully your readers' confusion is dispelled, too.

I consider it dropped.

Offline AJ

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Re: 776.032 - When is it invalidated?
« Reply #21 on: July 05, 2012, 01:55:22 PM »
I should apologize to the two of you (Jeralyn and cboldt) - it kind of got off topic and I should've mentioned it. All I wanted to know is: if the case is tossed out by the judge for any reason other than SYG/Immunity, could a civil suit ensue. I'm still a bit confused but from the sounds of it a civil suit could still take place (which makes me wonder why one couldn't have happened before the arrest) - I'll keep doing my own search into it and see what I can find out. Thanks!

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #22 on: July 05, 2012, 06:05:42 PM »
I should apologize to the two of you (Jeralyn and cboldt) - it kind of got off topic and I should've mentioned it. All I wanted to know is: if the case is tossed out by the judge for any reason other than SYG/Immunity, could a civil suit ensue. I'm still a bit confused but from the sounds of it a civil suit could still take place (which makes me wonder why one couldn't have happened before the arrest) - I'll keep doing my own search into it and see what I can find out. Thanks!

Not directly to your inquiry, Jeralyn posted what she refers to as the SYG instruction, over on the main board, in the million dollar bail thread.  My read of the Florida Supreme Court order she linked to is that it sets for the standard set of jury instructions for justified use of force, also known as self defense.  The standard jury instructions for self defense now refer to Chapter 776, the Florida statutes for justified use of force.  None of the instructions provide the jury an opportunity to say anything about 776.032 immunity.

I don't think there is a choice between a "self defense" instruction and a "SYG" instruction.  I think they are one in the same.

To your question of a civil suit before arrest, or even now, the law puts the plaintiff at risk of paying defendant's costs, including lost wages, if a court does find immunity.

Offline cardinal

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Re: 776.032 - When is it invalidated?
« Reply #23 on: July 06, 2012, 06:44:44 AM »
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.
I agree that a finding of immunity in the criminal case would be useful to the defendant in a civil case, but I'm not following why the judge in the civil case would find it to be conclusive and not conduct an independent hearing.  Isn't the general rule on issue preclusion that the party against whom it is being used must have been a party to the first case?  Since the plaintiff in the civil case wasn't a party to the criminal case, wouldn't that rule prevent the defendant from using it as a conclusive finding?

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #24 on: July 06, 2012, 07:28:20 AM »
I agree that a finding of immunity in the criminal case would be useful to the defendant in a civil case, but I'm not following why the judge in the civil case would find it to be conclusive and not conduct an independent hearing.  Isn't the general rule on issue preclusion that the party against whom it is being used must have been a party to the first case?  Since the plaintiff in the civil case wasn't a party to the criminal case, wouldn't that rule prevent the defendant from using it as a conclusive finding?

An order finding 776.032 immunity is an official conclusion.  It's an order of the court.  I don't see the question as one of issue preclusion.  Once a court grants Zimmerman immunity, he has a grant of immunity.   Sort of like having a drivers license.  I don't think a civil court can take a grant of 776.032 immunity away, or dissolve a criminal court order granting 776.032 immunity. I think a civil court is as bound to follow the statute just the same as the police, prosecutor, and criminal court are.

Offline unitron

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Re: 776.032 - When is it invalidated?
« Reply #25 on: July 06, 2012, 10:30:33 AM »
I should apologize to the two of you (Jeralyn and cboldt) - it kind of got off topic and I should've mentioned it. All I wanted to know is: if the case is tossed out by the judge for any reason other than SYG/Immunity, could a civil suit ensue. I'm still a bit confused but from the sounds of it a civil suit could still take place (which makes me wonder why one couldn't have happened before the arrest) - I'll keep doing my own search into it and see what I can find out. Thanks!

Am I mistaken in remembering something that also prohibited civil action in the chunk of Florida law that they were going by at first that said if they couldn't immediately disprove Zimmerman's self-defense claim that they couldn't charge him?

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #26 on: July 06, 2012, 01:48:12 PM »
Am I mistaken in remembering something that also prohibited civil action in the chunk of Florida law that they were going by at first that said if they couldn't immediately disprove Zimmerman's self-defense claim that they couldn't charge him?

It's all part of the same section of statutory law, 776.032.  The law prohibits the police from arrest (and detention pursuant to arrest), it prohibits the prosecutor from charging, and it prohibits prosecution of the case in any court, criminal or civil.  It's not a question of "immediacy," but rather one of having probable cause.  If it took a week, a month, or (in the case of murder) years to obtain probable cause that the suspect committed a crime, then there is no immunity.

What SPD and the town of Sanford announced to the public was that Zimmerman was not arrested, because the investigators did not have enough evidence to produce probable cause that Zimmerman was not acting in self defense.  The town cited 776.032 as prohibiting arrest under that (lack of probable cause) situation.

If the police arrest without probable cause, or the prosecutor charges without probable cause, there is no remedy to the defendant, other than beating the rap.  I say "no remedy" as shorthand, there may be a separate remedy for malicious or wrongful prosecution, but that won't be based on 776.032 at all.  The statute does provide a remedy for being wrongfully sued in civil court.  That remedy is that the plaintiff (Martin's estate) will be under a court order to pay defendant's costs of defense, and any loses of income due to defending the suit.

Offline unitron

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Re: 776.032 - When is it invalidated?
« Reply #27 on: July 07, 2012, 03:49:46 AM »
It's all part of the same section of statutory law, 776.032.  The law prohibits the police from arrest (and detention pursuant to arrest), it prohibits the prosecutor from charging, and it prohibits prosecution of the case in any court, criminal or civil.  It's not a question of "immediacy," but rather one of having probable cause.  If it took a week, a month, or (in the case of murder) years to obtain probable cause that the suspect committed a crime, then there is no immunity.

What SPD and the town of Sanford announced to the public was that Zimmerman was not arrested, because the investigators did not have enough evidence to produce probable cause that Zimmerman was not acting in self defense.  The town cited 776.032 as prohibiting arrest under that (lack of probable cause) situation.

If the police arrest without probable cause, or the prosecutor charges without probable cause, there is no remedy to the defendant, other than beating the rap.  I say "no remedy" as shorthand, there may be a separate remedy for malicious or wrongful prosecution, but that won't be based on 776.032 at all.  The statute does provide a remedy for being wrongfully sued in civil court.  That remedy is that the plaintiff (Martin's estate) will be under a court order to pay defendant's costs of defense, and any loses of income due to defending the suit.

I should have been more clear and said "...if they couldn't immediately disprove Zimmerman's self-defense claim that they couldn't charge him at that time, nor until such time as they did acquire evidence that casts doubt on self-defense, if they ever did?", although what I was getting at was "wasn't the accompanying immunity from civil action part of that same law?".

Now that the state claims to have evidence overriding that barrier to arrest, could not a civil suit be instituted immediately as well, if someone with standing, like say, the Martins, wished to do so?

Yeah, that's what this case needs, a concurrent civil suit with turf wars over which case gets which witness when. </sarcasm>

Offline cboldt

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Re: 776.032 - When is it invalidated?
« Reply #28 on: July 07, 2012, 07:29:33 AM »
Now that the state claims to have evidence overriding that barrier to arrest, could not a civil suit be instituted immediately as well, if someone with standing, like say, the Martins, wished to do so?

It could, anytime.  But the plaintiff runs the risk of Zimmerman being granted immunity, and if that happens, then plaintiff is on the hook for the defendant's costs.

Offline cardinal

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Re: 776.032 - When is it invalidated?
« Reply #29 on: July 08, 2012, 08:10:43 AM »
It could, anytime.  But the plaintiff runs the risk of Zimmerman being granted immunity, and if that happens, then plaintiff is on the hook for the defendant's costs.
Another factor is that I think the judge in the civil case could stay the civil case until after the criminal proceeding has concluded.  The civil case might get filed (say for statute of limitations purposes), but as a practical matter it might not proceed until the criminal portion is done.  There are many considerations, including 5th Amendment, discovery, and judicial economy reasons why the criminal case is often required to go first.

 

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