STAND YOUR GROUND IMMUNITY: GOODBYE TWO BIRDS, ONE STONE
Appellate Practice Section
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Stand Your Ground
litigants should beware:
criminal immunity does
not inevitably confer
civil immunity.
T
hanks to Florida’s Stand
Your Ground law, 1 your
client has managed to
escape criminal liability
for injuries he caused when some
well-intentioned, college-football-
related bar banter suddenly erupted
into wild fisticuffs. Congratulations.
But now what? Should your client
just relax and enjoy his criminal
immunity as yet another
serendipitous benefit of Florida
living? Or should he start prepping
a war chest for civil litigation? The
Florida Supreme Court’s decision
in Kumar v. Patel has the answer. 2
Kumar held a Stand Your
Ground determination, that renders
a criminal defendant immune from
prosecution, does not automatically
confer civil immunity. 3 That is,
Kumar ruled one stone (Stand
Your Ground determination in
a criminal case) cannot kill two
birds (criminal and civil liability).
Importantly, it also encouraged
the Legislature to fix the law,
albeit indirectly. Understanding
why requires some context.
Florida’s Stand Your Ground
law essentially jettisons the
common-law duty to retreat before
using violent force in self-defense.
Specifically, it allows a person
to threaten or use force if he
“reasonably believes that such
conduct is necessary to defend”
against another’s “imminent use
of unlawful force.” 4 Sometimes,
::
it even permits deadly force when
“necessary to prevent imminent
death or great bodily harm.” 5
The Stand Your Ground law
effectuates these rights by providing
both criminal and civil immunity
to those who lawfully defend
themselves. 6 But as Kumar observes,
the Legislature never established
“procedural mechanisms for
invoking and determining Stand
Your Ground immunity.” 7 Hence,
the judiciary has had to develop
those procedures, which now
include an evidentiary hearing in
both criminal and civil actions.
This lack of statutory guidance
led the Second DCA in Kumar
to conclude that since the Stand
Your Ground law unequivocally
grants both criminal and civil
immunity, “the Legislature must
have intended a procedure with
one immunity determination and,
therefore, unambiguously modified
the” common-law collateral
estoppel doctrine to effect that
single determination. 8 The Florida
Supreme Court disagreed,
explaining that the collateral
estoppel doctrine, which requires
mutuality of parties, does not allow
a criminal immunity determination
to “bind a potential civil plaintiff
who is not a party to the criminal
proceeding.” 9 Accordingly, it
reasoned that the Legislature’s
decision not to expressly modify
the collateral estoppel doctrine
signaled intent to require separate
immunity determinations.
Additionally, Kumar criticized
the Legislature for enacting a
statute that “purports to grant a
substantive immunity that cannot,
in practice, be accomplished by
any procedure.” 10 Considering the
Legislature has neither abrogated
Kumar nor established new
implementation procedures, this
critique appears to have fallen
on deaf ears. Thus, Stand Your
Ground litigants (and college
football fans) should beware:
criminal immunity does not
inevitably confer civil immunity.
1
See § 776.012, Fla. Stat. (2017).
Kumar v. Patel, 227 So. 3d 557
(Fla. 2017). The author of this article
works for Thomas A. Burns, the
board-certified appellate attorney who
developed the petitioner’s appellate
strategy in Kumar.
3 Id. at 561.
4 § 776.012(1), Fla. Stat.
5 § 776.012(2), Fla. Stat.
6 § 776.032(1), (3), Fla. Stat. (2017).
7 Kumar, 227
So. 3d at 559.
8 Id. at 560.
9 Id.
10 Id. (emphasis
in original).
2
Author:
Arda Goker -
Burns, P.A.
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