The Week in Torts – Cases from the Week of September 29, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 39
CASES FROM THE WEEK OF SEPTEMBER 29, 2017
STAND YOUR GROUND LAW DOES NOT CONFER CIVIL LIABILITY IMMUNITY TO A CRIMINAL DEFENDANT.
Kumar v. Patel, 42 Fla. L. Weekly S828 (Fla. September 28, 2017):
A man physically attacked another man without provocation at a bar. In reaction to the attack, the second man struck the attacker in the face with a cocktail glass, which resulted in a permanent loss of sight in the “provoker’s” left eye.
The state filed an information charging the guy wielding the glass with felony battery. The defendant moved to dismiss the information, citing immunity from prosecution under Stand Your Ground law. The circuit court granted the defendant’s motion.
The provoker/injured victim then filed a civil complaint against the defendant for battery and negligence. The defendant again asserted immunity under Stand Your Ground law as an affirmative defense. The Second District had ruled that section 766.032, Florida Statutes, guarantees a single Stand Your Ground immunity determination for both criminal and civil actions. However, the court certified conflict with the Third District on that issue.
The Stand Your Ground law does eliminate the common law duty to retreat before using self-defense. Another statute also provides immunity for a person who lawfully uses force in self-defense, in turn rendering them “immune from criminal prosecution in civil action for the use of such force.”
In both criminal and civil proceedings, the determination of whether the defendant is entitled to Stand Your Ground immunity has been made at pretrial evidentiary hearings, where the defendant must prove that the immunity attaches by a preponderance of the evidence.
However, as the court explained, the Second District concluded that because the Stand Your Ground law clearly states that it is granting immunity from being prosecuted or sued at all, the legislature must have intended a procedure which only requires one immunity determination. The supreme court rejected that analysis.
First, it noted the statute is silent as to the “one” procedure to be used for determining immunity, meaning that the plain language of the statute does not speak to the issue at all. Second, because the statute purports to grant a substantive immunity that cannot in practice be accomplished by any single procedure, the statute cannot be read as implying a mandate for any particular procedure. Third, the statute cannot be construed to modify the common law unless such intent is evident, which it is not.
Fourth, the civil attorney’s fees and costs provision in section 766.032(3) implies recognition by the legislature that civil immunity will be determined separately in a civil proceeding. If the statute had clearly and unambiguously modified common law such that a criminal immunity finding would be binding on potential civil litigants, it would be equally clear and ambiguous.
Finally, the 2017 amendment to the Stand Your Ground law creating different burdens of proof for criminal and civil immunity not only implies an understanding that separate immunity determinations will be made, but also forecloses any argument that the criminal determination could ever be binding in the civil proceeding.
Thus, the court held that the Stand Your Ground law does not confer civil immunity to a criminal defendant, simply because the defendant is determined to be immune from prosecution in the criminal case.