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When to Go to the Gun (or Bat or Club)
- Thread starter OldMarksman
- Start date
No one cn know whether the act was lawful until there has been an immunity hearing or trial. Of course, the charging authority may choose to not prosecute a criminal case.
Yes. If during the pre-trial immunity hearing, the trial, or at any time the use of force is deemed lawful self defense...you are granted immunity from prosecution in both civil and criminal court.
If the prosecution chooses not to charge you are still immune from civil and criminal prosecution. At the pre-trial immunity hearing, the prosecution declines to charge...the judge will then deem lawful self defense. That is the whole point of the pre-trial immunity hearing. The prosecution choosing not charge means they do have evidence that meets statutory requirements.
In an immunity hearing, the burden of proof for a criminal defendant in Florida is much higher than at trial--it is something less than "clear and convincing evidence", which is whatever the judge says it is.
That is the way it USED to be in that the DEFENDENT had to prove a higher level than the state. That resulted in immunity almost never being granted by the court.
Florida Supreme Court has reversed such that the STATE has to prove at a higher evidentiary level than the defendant.
Ultimately, the Florida Supreme Court decided that self-defense immunity could be sought pre-trial, and that the burden of persuasion on immunity fell upon the party seeking immunity, and by a preponderance of the evidence. As a practical matter, however, Florida courts began granting immunity almost never. The view of many defense attorneys in Florida began to be that there was no point in seeking immunity because it was hardly ever granted, and thus the effort was not worth the damage of having to argue the defense’ case in front of the prosecution before a trial proper had begun.
The effect was that the state’s self-defense immunity law was left gutted and toothless. Proponents for self-defense immunity sought an important change in the law, initially demanding that the burden fall on the prosecution to disprove self-defense beyond a reasonable doubt in order to deny immunity. This is, in fact, the burden that the prosecution must meet in defeating a claim of self-defense at trial.
The standard of beyond a reasonable doubt was deemed too high, ultimately, and the legislature finally agreed that the burden of persuasion on self-defense immunity ought to fall on the State, to disprove self-defense, but only to the legal standard of clear and convincing evidence. Clear and convincing evidence can be thought of as more than a preponderance of the evidence, but less than beyond a reasonable doubt.
https://legalinsurrection.com/2017/06/florida-changes-burden-of-proof-of-self-defense-immunity/
In Florida, the state has to prove by clear and convincing evidence you did not use lawful self defense.
ghbucky says:
It is worth pointing out that George Zimmerman exercised enormous restraint before resorting to deadly force to defend himself and still was demonized and financially ruined by the legal process-- in Florida.
Zimmerman was not destroyed by the State of Florida.
He was destroyed by people who deemed him guilty by emotion without ever having examined the facts.
Sad state of affairs that is the result of emotion instead of fact and reason driving the narrative. It is the same dynamic you will find in places like North Korea, The Killing Fields of Cambodia, and the reason why 100 million have died under socialism.
OldMarksman
Staff
Not unless immunity is granted by the court.If the prosecution chooses not to charge you are still immune from civil and criminal prosecution.
Yeah.Florida Supreme Court has reversed such that the STATE has to prove at a higher evidentiary level than the defendant.
What I said was, at a criminal immunity hearing, the burden of proof for a criminal defendant in Florida is much higher than at trial.
Not unless immunity is granted by the court.
Immunity is already granted by the law.
776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—
(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action
You are looking for a paradox. Randomly shooting people is illegal. It will result in criminal charges. Self defense is lawful. No charges to be filed and we do not charge people for obeying the law.
A judge does not follow you around making a decree every time you obey the law. You don't get a printout from the state on how many traffic lights you stopped at or how many miles you have driven while obeying the speed limit.
The only time you will get a judgement of "Self Defense" is if the state charges you. If they do not have the evidence then there is no charges then they will conclude it was self defense. That does not mean you are charged with anything. That means it was lawful and you are immune.
It's not a snake eating its tail where you have to be charged and then deemed lawful.
What I said was, at a criminal immunity hearing, the burden of proof for a criminal defendant in Florida is much higher than at trial.
Which is wrong. The burden of proof FOR THE STATE is higher; not the defendant.
OldMarksman
Staff
If the court decides that the act was lawful (under s. 776.012, s. 776.013, or s. 776.031, .in FL).Immunity is already granted by the law.
The charging authority may choose not to charge, but that does not confer immunity; they can charge as long as immunity has not been granted by the courts, or any statutory limitations have run out
Yes...but what the actor considers self defense may not be considered self defense in the criminal justice system. That's why we have courts.Self defense is lawful.
What?.... If they do not have the evidence then there is no charges... That does not mean you are charged with anything.
In a criminal case, the burden of proof is a lot higher for the state, and in Florida, it is somewhat higher for the state at an immunity hearing.Which is wrong. The burden of proof FOR THE STATE is higher; not the defendant.
For the third time, the burden of proof for a criminal defendant is a lot lower at trial than it is in an immunity hearing.
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If the court decides that the act was lawful (under s. 776.012, s. 776.013, or s. 776.031, .in FL).
It does not have to reach the court. An investigation can occur that determines no charges are warranted therefore none are brought before the court.
No court required. Now that is using the legal definition of court synonymous with Judge or judges as in a Judicial Tribunal established to administer justice.
Last time I dealt in the Criminal Court System...judges do not bring charges, prosecutors do. If the investigation concludes there is not enough evidence for the prosecution to bring before a Grand Jury then we have no charges.
OldMarksman says:
For the third time, the burden of proof for a criminal defendant is a lot lower at trial than it is in an immunity hearing.
I do not know if the evidentiary standard changes at trial. The statute does not say that.
It does say the burden of proof FOR THE STATE is higher at the pre-trial immunity hearing.
In order to charge someone and not declare the use of force lawful, the state has to prove that it was not lawful self defense to a higher standard than the person claiming self defense.
I do not know how else to state it.
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OldMarksman
Staff
Are you under the impression that that would provide immunity against either prosecution or civil liability? Who would conduct such an investigation, and with what authority?It does not have to reach the court. An investigation can occur that determines no charges are warranted therefore none are brought before the court.
Still true.Last time I dealt in the Criminal Court System...judges do not bring charges, prosecutors do. If the investigation concludes there is not enough evidence for the prosecution to bring before a Grand Jury then we have no charges.
I haven't said otherwise . Iit is true in Florida. But in some states, a preponderance of the evidence decides the case for either side--equal burden.The burden of proof FOR THE STATE is higher at the pre-trial immunity hearing; not the defendant
In Florida, yes.In order to charge someone and not declare the use of force lawful, the state has to prove that it was not lawful self defense to a higher standard than the person claiming self defense.
At trial, in all states, criminal conviction requires proving guilt beyond a reasonable doubt--meaning that the burden of proof for the defendant is low. In a tort case, a preponderance of the evidence wins it for either side.
I have been saying that since the beginning. Do you somehow believe it not to be true?
I edit'd my reply in order to clarify. You replied just as I finished. Talking about trial vs pre-trial just confuses things and the statute says nothing about evidence levels at trial.
My impression is that the law literally states in black and white you have immunity from both civil and criminal liability for lawful use of force.
The Police would conduct the investigation as they would conduct any criminal investigation. If they find enough evidence then a DA will bring it before a Grand Jury. If they do not find enough evidence, then it is a lawful use of force.
Everything else can come down to the fact it was clearly stated the statute applies to Florida and Florida only. You need to check your state laws and abide by them. No need to morph the discussion into something that was never said.
Are you under the impression that that would provide immunity against either prosecution or civil liability? Who would conduct such an investigation, and with what authority?
My impression is that the law literally states in black and white you have immunity from both civil and criminal liability for lawful use of force.
The Police would conduct the investigation as they would conduct any criminal investigation. If they find enough evidence then a DA will bring it before a Grand Jury. If they do not find enough evidence, then it is a lawful use of force.
Everything else can come down to the fact it was clearly stated the statute applies to Florida and Florida only. You need to check your state laws and abide by them. No need to morph the discussion into something that was never said.
OldMarksman
Staff
It does; whether the use of force was lawful is decided in an immunity hearing by a judge.My impression is that the law literally states in black and white you have immunity from both civil and criminal liability for lawful use of force.
True--but that only affects the criminal case.The Police would conduct the investigation as they would conduct any criminal investigation. If they find enough evidence then a DA will bring it before a Grand Jury.
fFrst, the DA may decline to prosecute for political reasons. Second, they may do so because they think it unlikely that they would prevail in proving guilt beyond a reasonable doubt.If they do not find enough evidence, then it is a lawful use of force.
Legally, nether would establish the use of force to have been lawful, and either can be reversed.
And absent a court judgment granting immunity, civii plaintiffs are free to proceed, regardless of what the DA decides.
Got it?
It does; whether the use of force was lawful is decided in an immunity hearing by a judge.
There is nothing in Florida statute that directs a pre-trial immunity hearing. If no charges are filed as the initial investigation has no probable cause concluding lawful use of force there will be no trial and no pre-trial hearing.
Lawful use of force is immune to both civil and criminal prosecution in Florida.
Got it?
A defendant has the right to request a pre-trial immunity hearing.
OldMarksman
Staff
hTat is obvious; it is true in all US jurisdictions; it does not impact divil liability; and it has absolutely nothing all to do with immunity from prosecution under the law.If no charges are filed as the initial investigation has no probable cause concluding lawful use of force there will be no trial and no pre-trial hearing.
Immunity from criminal prosecution and civl liability is provided in the laws of a number of states, and in all of them, it only exists when it is established by a judge in an immunity hearing.Lawful use of force is immune to both civil and criminal prosecution in Florida
We have gone around and around on this. We cannot tell whether you remain badly confused or you are deliberately being argumentative.
Do not raise this issue again.
it does not impact divil liability; and it has absolutely nothing all to do with immunity from prosecution under the law.
It does when the law states you have immunity.
it only exists when it is established by a judge in an immunity hearing.
We cannot tell whether you remain badly confused or you are deliberately being argumentative.
You keep stating a fiction that factually the courts have not sorted out completely. That you would blame me for disagreeing with you based my experience in the state combined with the fact this is unsorted in the judiciary is baffling.
Right now, the law in Florida is you do not need an immunity hearing if you are not charged. The law grants you immunity by that simple fact.
Until clarified by the Supreme Court. AFAIK, the only clarification the Florida Supreme Court has given on this issue the fact the statute as intended by the Legislation favors the defendant.
Here is a case that shows just how much the courts wrangle with this....
Robert Bouie shot Jeno Favors in a South Tampa parking lot
and was charged with attempted second-degree murder, aggravated battery, and - 2 - shooting at a vehicle.
Mr. Bouie says he was defending his brother, Jermaine McGee,
and filed a motion to dismiss asserting that he is immune from prosecution under the stand-your-ground law.
Charges trigger the Immunity Hearing.
In the case of No charges = No Requirement for immunity hearing = Immunity Protection under the law.
Could someone file a civil case? Sure. That filing would trigger the Immunity hearing which would be granted. That filing in civil court would be a waste of time; which is what most attorney's will tell you.
One can reasonably look at the facts of this case and say that it is not one in which the defendant deserves in a moral or public policy sense to be immune from a criminal prosecution. Whether the defendant deserves immunity in a moral or public policy sense, however, is not the question that the stand-your-ground law requires us to answer. The legislature has directed that a defendant who files a sufficient motion to dismiss on grounds of immunity is entitled to it unless the State clearly and convincingly
establishes that he is not. Here, the State failed to do so both because the initial provocation exception does not apply on these facts and because the evidence did not otherwise meet the State's burden of proof. Accordingly, we grant Mr. Bouie's petition for a writ of prohibition.
Petition granted.
https://www.courthousenews.com/wp-content/uploads/2020/02/Stand-Your-Ground.pdf
I certainly agree this topic is dead and I have no desire to further discuss it.
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Two things:
Your permit is not a Batman badge. Too many people have ideas of intervening in others' personal conflicts or being a hero and stopping an armed robbery of another. Don't.
If you shoot someone, and everything is perfect, and you are not even charged, it will still cost you ten grand, minimum, for most any civil suit.
Good luck.
Your permit is not a Batman badge. Too many people have ideas of intervening in others' personal conflicts or being a hero and stopping an armed robbery of another. Don't.
If you shoot someone, and everything is perfect, and you are not even charged, it will still cost you ten grand, minimum, for most any civil suit.
Good luck.