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Old March 26, 2012, 12:17 AM   #51
Frank Ettin
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Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,538
Quote:
Originally Posted by Aguila Blanca
...Maybe I'm reading the law wrong, but isn't the basic premise still that killing another person is unlawful, and that self-defense (with or without a duty to retreat) is an exception that must be claimed ...
There is a unique wrinkle in Florida law, however.

As the laws of a number of States now do, Florida law provides for immunity from criminal prosecution and from civil suit for someone who uses force in justified self defense. See 776.032:
Quote:
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
The difficulty is that there will always be some threshold questions to be decided before it can be determined whether or not immunity applies. Immunity only applies when the use of force meets all the legal requirements for justification.

In Florida, as provided under 776.032, that would mean that the defendant's use of force was, "...as permitted in s. 776.012, s. 776.013, or s. 776.031..."; and each of those statutes has conditions that must be satisfied for there to be a finding of justification. If the DA agrees that someone's use of force was justified, that would resolve at least the criminal side of things.

Issues, however, arise when the DA thinks someone's use of force was not justified. If there is that fundamental disagreement, there needs to be a way to resolve it. Ordinarily, that would be done at a trial, as described above, in post 16, under "I. How Pleading Self Defense Works." Florida has established a slightly different procedure.

In Dennis v. State, 51 So.3d 456 (Fla., 2010), the Supreme Court of Florida ruled:
Quote:
We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. ... and [we] approve the reasoning of Peterson on that issue.
And in Peterson v. State, 983 So.2d 27 (Fla. App., 2008), referred to by the Florida Supreme Court, the appellate court ruled:
Quote:
Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution...
Based on these seminal Florida court decisions, if a defendant is charged with a crime (or, it would appear, sued) based on a use of force, and if the defendant claims justification as his defense, instead of raising self defense as an affirmative defense at trial --
  1. The defendant would raise his defense in a motion to dismiss based on the immunity provided under 776.032; and

  2. The court would hold an evidentiary hearing on the motion; and

  3. The defendant at that hearing would need to prove by a preponderance of the evidence that each element required for legal justification has been satisfied.

  4. Should the court deny the motion, it appears from certain language in Peterson that he would still be able to raise self defense as an affirmative defense at trial.

Quote:
Originally Posted by ScottRiqui
...in Virginia. Any killing is automatically second-degree murder, and the state doesn't even have to present a case in order to get a conviction...
I think you must have misunderstood something. I'd very much like to know where your belief in that regard comes from. A citation would be welcome.

Were that the case, there would be some major problems under Due Process and it would be completely inconsistent with the Presumption of Innocence so firmly embedded in our criminal law.
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