Written by Ira H. Leesfield – Article Published in the Daily Business Review
Florida’s “STAND YOUR GROUND” law not only distorts criminal justice for the victims of this special interest statute, it essentially eliminates civil liability for acts of aggression which would otherwise be compensable in the civil justice system. With the unnecessary death of Trayvon Martin last month in Sanford, the State of Florida is once again at the forefront of national and world attention. This time, it is not ‘hanging chads” which have made Florida the most curious state in the country. Now it is the “kill at will and with impunity” law that has erupted in international skepticism.
The law, Florida Statute Section 776.012, allows individuals to use deadly force if they reasonably believe it is necessary to prevent death or great bodily harm. It embraces a subjective standard, often with no witness or victim testimony. Such force was once only permitted inside one’s home (“castle”). But Florida’s legislature, lobbied relentlessly by the National Rifle Association and other “law and order” groups, in 2005, changed the law. Now, individuals no longer have a duty to retreat from danger but instead have a license to kill when they feel threatened with serious injury.
There is no question that the law has created unintended consequences over the years as perpetrators have been encouraged to escalate dangerous confrontations and take the law into their own hands. According to the Florida Department of Law Enforcement, the number of “justifiable homicides” in Florida has nearly tripled since the law passed. The Trayvon Martin case is one in a long line of cases where the “Stand Your Ground” defense could immunize a suspect for a highly questionable homicide.
The media frenzy surrounding “Stand Your Ground” has focused on criminal prosecution. But the law has a substantial and detrimental impact on civil claims for wrongful death and personal injury as well. One only need to recall the O. J. Simpson criminal acquittal followed by the guilty verdict in the civil case. Generally, an action for civil damages does not depend on the defendant being convicted in criminal court because civil cases have a different burden of proof. However, under “Stand Your Ground,” there can be both criminal and civil immunity, and therefore, insult is added to injury with no accountability for civil damages. What does this mean for the families of Trayvon Martin and others who were gunned down under unwitnessed suspicious circumstances? Must the “Stand Your Ground” defense fail in criminal court before a civil action may be pursued? Does the finding of immunity in criminal court bind the civil court?
Florida law complicates the issue, and there are currently no reported court opinions applying civil immunity in “Stand Your Ground” cases. However, civil court judges may be implored to apply a criminal court’s finding of immunity.
In 2010, the Florida Supreme Court held that in criminal cases, a judge, not a jury, should determine whether the defendant’s conduct was justified under “Stand Your Ground,” and the defendant has the burden of proving his entitlement to immunity by a preponderance of the evidence. In doing so, the Supreme Court removed perhaps the most crucial factual inquiry from the civil jury: whether the defendant’s conduct was “reasonable.” If the criminal judge finds that the defendant is immune from prosecution at an evidentiary hearing, the civil judge in a subsequent case for damages might feel compelled to consider the immunity issue previously adjudicated closing the door on the civil case. Unfortunately, the criminal judge who made the initial finding of immunity might not have known that he was also preventing a civil remedy for the surviving family in a subsequent wrongful death action. Even worse, §776.032, Fla. Stat., includes harsh provisions requiring the civil plaintiff to pay attorneys fees and costs incurred by a defendant who is found to be immune. This deters injured parties from even testing the legal theory.