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Stand Your Ground – Why the Civil Immunity Provision is Unconstitutional

Stand Your Ground – Why the Civil Immunity Provision is Unconstitutional

In Florida and other states, a successful defense using the “Stand Your Ground” statute not only bars criminal liability, but deems the justified homicide free from civil liability as well.  Since its inception, I cannot see where there has ever been a challenge to the civil immunity provision in the criminal court system.  It has just been taken for granted as law.  It’s unquestionably unconstitutional.

The Stand Your Ground Civil Immunity Provision states:

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 (1).

Florida tort (that’s the funny name for civil liability) law is based on comparative negligence.  Even in a situation where liability seems clear, such as a rear-end collision, the law allows the jury to determine how much each party contributed to the overall fault of the situation.  It states:

768.81 Comparative fault.—

(2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.
(3) APPORTIONMENT OF DAMAGES.—In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.
Stand Your Ground was founded on immunity for what a jury might deem a negligent act- a man shot and killed a FEMA worker checking on him and his trailer.  It was a mistake.  Zimmerman surely negligently contributed to the peril that resulted in Trayvon’s death.  The Home Owners Association even acknowledged it with a reported seven-figure civil settlement.  In Jordan Davis’ case, Michael Dunn has essentially admitted a case of negligence through his lawyers.  Taking him at his word (I won’t) that he was simply firing warning shots and never meant to kill anyone, even if he was standing his ground (he wasn’t), the terror that he inflicted on the surviving passengers with not one, not two, but a series of ten bullets is actionable.  His defense of a “negligent homicide” is a basis for a civil suit.  Why should the living victims never be allowed to be heard in a civil court? Why should Jordan’s estate never be able to recover funeral expenses when the whole body of tort law says he is entitled?  How can a criminal court judge be so powerful as to take away the victim’s rights usually left up to a jury?  Because Marion Hammer, the NRA and their Stand Your Ground provision set up an unconstitutional system to forbid victims from ever being heard on the matter.

The State is the only one who gets to be heard in front of the Court on Stand Your Ground issues.  The State does not truly represent victims.  The victims have no true voice.  The victims could possibly file a writ of prohibition, seeking to preempt a ruling on civil immunity and preserving appellate argument on the unconstitutionality of the issue, but it would delay the criminal trial and, with that, delay justice to the killer.

Even Eric Friday, attorney for Florida’s Open Carry advocacy group, told me he sees my point. I don’t think it has ever been brought up.  The State can’t bring it up- they won’t delay their own case, they don’t want to acknowledge lessened liability to the killers, they don’t want to create a backlog.  Public defenders and private defense counsel won’t ever mention it because they like their clients to be immune.  Stand Your Ground’s civil immunity provision is a Victims Right’s issue as a criminal court judge is extinguishing civil court rights without allowing the victims be heard.  We seek to fight it.

Why the Civil Immunity Provision is Unconstitutional:

I. Stand Your Ground provides civil immunity- the battered or killed victims can never seek true justice on his/her own.  Florida civil tort law is entirely based upon comparative fault. To impose civil immunity conflicts and eliminates that entire body of law. Negligence is the failure to use reasonable care.  Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.  So, someone could have not used reasonable care, been reasonably careful and simply “Stood Their Ground” negligently, but the victim’s rights would still be taken away completely.  An unreasonable person could do something unreasonably, kill someone and be given immunity from liability.  It is contrary to the foundation of Florida’s civil justice system.  Victims have no rights.

II. Victims are not allowed to be adequately represented, conduct discovery & have their lawyers heard in Stand Your Ground hearings.  The State does NOT represent victims. The ONLY place a victim has ANY real voice is in a civil case.  The victim can’t call witnesses, can’t pick the jury, can’t make closing arguments, can’t even hire an attorney to help prosecute the criminal case.  He or she has ZERO voice.  The State represents the People of Florida, not each victim.  Assistant State Attorneys carry large case loads and many use the position for training to go into private practice.  They want to get justice for the people of the State, and do not have to get victim consent to plea bargain or prosecute.  They leave financial restitution up to the civil courts in many instances.  To have them SOLELY representing the victims isn’t fair, as they are too overworked and have a different job to do for the citizens at large.  Victims have no voice.

III. The criminal discovery process, criminal court judge & criminal burden entirely different than civil process.  Yet the criminal usurps the civil system?  The criminal burden is “beyond a reasonable doubt.”  The civil burden is the “greater weight of the evidence.”  The State has a difficult burden and is often trying to prove the killer had intent or acted maliciously beyond that reasonable doubt.  The State “loses” if they simply prove the killer acted negligently or carelessly and the killer walks.  So, the State may not conduct certain discovery or ask certain questions for fear it’d be adverse to their case.  In civil court, the negligent or careless standard is enough, and they only have to prove it was more likely than not, so the civil lawyers tend to focus on areas the criminal lawyers do not.  The system has too much gray area in between.  The victims can’t be heard, have favorable testimony introduced or otherwise make a case as to why there may be civil liability despite the State not being able to prove their case.  The victims burden is less but they can’t be heard.

IV. There are bona fide US & State Constitutional Rights taken away when the criminal courts interfere with civil rights. It is why there are two separate systems and two separate standards.  Why should a criminal court be able to extinguish those civil rights usually left up to a civil court judge?  It’s why we filed the civil suit, so we have our own judge to potentially address those issues.  The victim’s Constitutional Rights cannot be ignored.

V. Immunity, if granted, cannot be appealed by the civil litigants. They have no standing in the criminal suit, it denies their access to courts and the ability to freely chose their own lawyers, present their own case and tip the scales with a far lessened burden.   The victim’s appellate rights cannot be ignored.

VI. And the Statute even gives the killer attorneys’ fees and costs for even trying to seek the protection the laws of Florida and the US Constitution allow.  The victim gets victimized for even challenging the unconstitutional law.

VII. Absolute immunity somewhat unprecedented, especially without a peer determination. Even sovereign immunity is not absolute.  Even the government must answer to the citizens of this country- to the victims’ peers.  So how come someone unreasonable can get away with killing if even the government cannot?  The NRA is more powerful than the government?  Let’s hope not.


We invite any lawyers seeing cases of this to consult with us.  We will do the writ and/or appeal for FREE in exchange for the chance to bring a viable civil suit.  Civil law judges people based upon “reasonable.”  We can’t let an unreasonable law empowering sometimes unreasonable people to unreasonably take away the voice of victims.