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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


This appears to state that if use of force is justified, a firearm user is immune to civil action. That is the exact opposite of what I understood as I would expect a family member with a hungry attorney, to come after the defender, esspecially if a firearm is used.

Any other interpretation on this?
 

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776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--

This appears to state that if use of force is justified, a firearm user is immune to civil action. That is the exact opposite of what I understood as I would expect a family member with a hungry attorney, to come after the defender, esspecially if a firearm is used.

Any other interpretation on this?


You are 100% correct. If it is a justifiable shoot you are safe from civil prosecution.
 

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This is a good law IMHO. If you are truly in danger and your life is at stake and you use deadly force the last thing you need is the perp's family taking you to court for damages.
 

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That's what's the big deal about the Castle Doctrine and the Stand Your Ground laws.

It grants immunity if it's a good shoot.

The problem is determining what's a good shoot.

AFS
 

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This issue has come up a few times, and I take a slightly different view of it. I want people to understand what the immunity in Fla. Stat. 776.032 actually provides.

Fla. Stat. 776.032 (quoted in relevant part)
...
(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).​

I agree that the statute says "IMMUNE" from civil action, but it's going to apply AFTER the suit is filed. There's no magic immunity filter at the courthouse to block these cases from being filed. You will incur expenses to defend against the suit. Unless your insurer is picking up the tab, you likely will not recover any of these costs despite what the statute says.

Take the seemingly clear-cut example of waking up at 3 AM to the sounds of someone in your home. You walk into your dimly lit living room and realize there's someone there who shouldn't be. You say "freeze." He doesn't, maybe even makes a hostile movement in your direction. You shoot. You turn on the lights to find you've shot a 15 year old who was probably there to lift you're PS3, big screen TV or Wii. He may have been carrying this item in his hands when you shot him. He may have been hopped up on drugs. He may have been armed himself at the time. Whatever. Still, the kid's parents will find a lawyer to take the case.

Two months later someone serves you with papers. You're being sued. What about IMMUNITY, you ask? Guess what? You (probably through an attorney) will file a response in court denying liability and requesting a hearing on the issue of immunity. Most likely, the judge will hold a hearing, will listen to evidence from both sides, and decide whether you're immune and the case can be dismissed without a trial.

Depending on the level of ambiguity in the facts - e.g., the teen's parents claim he was drunk and wandered into the wrong house, the teen survives and says he was sneaking in to visit your daughter, whatever - it's conceivable that it could go all the way to a jury trial and the jury will determine whether you were lawfully exercising your self-defense rights. (If I ever get sued for exercising my right to self-defense, I'm hiring an attorney. It's expensive, but not as costly as screwing something up and losing what should've been a slam dunk case.)

Let's assume the judge decides you're immune. Now you're entitled to recover your costs of defense from - guess who? - the same scumbag who broke into your home. (No, not the lawyer who filed the suit on the scumbag's behalf and not the court.) What are the odds any intruder you shoot at 3 AM is going to have enough $$$ to pay your attorney fees? If he had that kind of coin, he wouldn't be breaking in to steal yours. So the judge will "award" you the costs you paid to defend the suit, and all you'll have to show for it is a nice piece of paper signed by the judge saying the scumbag you shot now owes you money.

Why will an attorney take this case on behalf of an intruder, knowing that immunity will likely bar the suit and that the attorney won't make anything if it does? Because if you've got insurance, there's a chance your insurer will pay out a few grand to keep from paying $5,000 to $15,000 to take it to court. If your insurer doesn't offer a few grand upfront, but decides to take it to the judge for an early ruling on the immunity issue, there's an additional slim chance the judge decides a jury needs to make a finding of facts on the self-defense issues. If that happens, your insurer is likely to increase its offer to the intruder/plaintiff just to avoid paying another $10,000 or so in legal fees.

That's our legal system (and explains a great deal about why I decided to stop practicing law.)

- Str8Shooter
 

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I agree that the statute says "IMMUNE" from civil action, but it's going to apply AFTER the suit is filed. There's no magic immunity filter at the courthouse to block these cases from being filed. You will incur expenses to defend against the suit. Unless your insurer is picking up the tab, you likely will not recover any of these costs despite what the statute says.

- Str8Shooter
I read it as you are immune once the shooting has been ruled justified. If a suit is brought before it has been ruled a good shooting you can recover the costs of your defense.
 

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I read it as you are immune once the shooting has been ruled justified. If a suit is brought before it has been ruled a good shooting you can recover the costs of your defense.
After the JUDGE presiding over the civil suit (which you've already defended) rules it as justified, you will be awarded costs of defense. But recover from whom? If the guy is a penniless thug, you may shell out several grand and not be able to recover. An award of costs is a piece of paper the judge gives you that says you're owed money. After you get the award, then you've got to collect it.

If the plaintiff(s) had money, they wouldn't have filed in the first place. A good plaintiff's attorney would tell them they'd likely lose (because of the immunity statute) and end up owing you money. So odds are good you'll never have a plaintiff in this type of case against whom you can recover, because the only ones who can afford to sue are the ones who don't have anything to recover against. If they're broke, they've got nothing to lose. (Sadly, those are about the only ones a plaintiff attorney will take as well, because an insurer isn't as likely to settle out for a few grand against a plaintiff who has money and assets to satisfy an award of costs once the insurer wins for you.)

You'll never get sued for a self-defense shooting (where 776.032 applies) by someone who has enough money to reimburse you for your costs after you win. It's that simple. The only exception I can see to that is if there's a genuine issue over whether the use of deadly force was justified.

ADDED: The good news is that attorneys are less likely to take personal injury cases arising from a self-defense shooting because of the statute. Plaintiff attorneys get paid a percentage of what they recover for the injured party, usually 35% plus their out-of-pocket costs. They usually won't take a self-defense injury case unless they think they can either win (show the force used in self-defense was excessive) or shake down the insurance company for a few grand that it'd cost to defend against the claim. That's as close as we get to a magic immunity filter at the courthouse.

- Str8Shooter
 

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After the JUDGE presiding over the civil suit (which you've already defended) rules it as justified, you will be awarded costs of defense.

- Str8Shooter
I thought when the DA/police rule it justified you were safe. Subsection 2 refers to law enforcement doing the investigation so I figured it would be somebody from that side of the house making the decision if it was legal or not.

Subsection 1 says you are immune from prosecution. If it was for the judge to decide if it was a legal shooting or not you would have to be tried before you could become immune from prosecution.
 

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Discussion Starter · #10 ·
It is nice to have a lawyer sharing an opinion. It is also rather disheartening.

Someone once told me that the legal system is much like a game with serious consequences, and we play the game without really knowing what the rules are.
 

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I thought when the DA/police rule it justified you were safe. Subsection 2 refers to law enforcement doing the investigation so I figured it would be somebody from that side of the house making the decision if it was legal or not.

Subsection 1 says you are immune from prosecution. If it was for the judge to decide if it was a legal shooting or not you would have to be tried before you could become immune from prosecution.
I can understand how you could interpret it that way.

Link to 776.032

Subsection 1 sets out the circumstances justifying the use of deadly force and states that you are immune from prosecution if you exercise deadly force in that manner. HOWEVER, the police cannot adjudicate whether you exercised it in that manner. They simply investigate it and make a report. Before you can be prosecuted for using deadly force, a whole host of steps happen, most of which are out of the hands of the police. If the circumstances are in doubt, usually someone from the state attorney's office decides whether to pursue charges. Typically, they won't waste their time unless they are convinced something OTHER than self-defense was involved. (i.e., a drug deal gone bad, a murder attempt of a known associate being disguised as a "self-defense" case.) If they think they can prove it wasn't self-defense, then they can proceed with criminal charges. (So in that regard, the police and the DA "clearing" the event certainly seems to trigger immunity from criminal prosecution.)

Subsection 2 simply says the police cannot arrest you while investigating use of deadly force UNLESS the police have probable cause that it was not lawful self-defense. It doesn't give them any power or authority to determine whether immunity applies.

Subsection 3 says "The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant ... if the court finds that the defendant is immune from prosecution as provided in subsection (1)."

The decision made by the prosecuting attorney in the criminal aspect of the investigation is not binding on a judge of a civil court. Even if you are charged criminally and found not guilty, this verdict is NOT binding on a civil court. Further, there is no independent review process before a civil suit is filed (unlike criminal cases which often appear before a grand jury first).

Unless the plaintiff states in his complaint that it was a case of lawful self-defense, the court will need to hear evidence to decide if this was the case. The court also could decide that the facts stated by the plaintiff in the complaint indicate it was justifiable self-defense entitled to immunity and dismisses the case on his/her own. In any other circumstance, you'll have to go to court to defend it. What the DA and the police decided about the criminal case aren't binding and won't even be in evidence for the court to consider until AFTER you make an appearance, dispute the plaintiff's allegations and request a hearing as to whether the suit is barred under 776.032.

- Str8Shooter
 

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OK, with all that legaleeze in mind, what is the real world likelyhood that such a BG's plaintiff suit would actually go forward? Assuming that the shooter is a normal, law-abiding citizen and the shoot is ruled completely righteous by the investigating LEA and State Attorney's Office, I'd be curious to know just how often this sort of civil suit actually makes it to a courtroom.
 

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Well we are finding how difficult it is to search the records to find a real life self defense scenario to study in another thread.

I guess all we can hope for is that the perp shows up with all his kin folk so we can take them all out and leave no one to file a law suit.:ak
 

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So you have to go to court to be immune from going to court.
Sadly, in a civil context, this is probably the case. That's why Subsection 3 offers an award of costs to a defendant after the court finds him immune. Really the immunity isn't from going to court, it's immunity from civil or criminal liability. It's hair splitting, but it's not the same. And since it turns on the factual determination that you were exercising lawful self-defense, a court (criminal or civil) has a right to determine the facts for itself rather than relying on the police report or prosecutor's decision whether to file criminal charges.

In the criminal context, I think the prosecutor is going to be pretty certain he/she can win a conviction before bringing a case against someone claiming self-defense. No prosecutor is going to waste that kind of time against long odds unless it's pretty clear self-defense was NOT involved. So in the criminal context, immunity is pretty much what it says it is. So long as the police investigating it and the prosecutor think it is lawful self-defense, they won't waste their time prosecuting you for it. Even if they think you might've been excessive in your use of force or you might've had another option. It's too big of a hurdle and would require too much manpower to try. They have real criminals to put away.

To the extent immunity works in the civil arena, it's only the deterrent factor. Plaintiff attorneys only get paid if they win. Many are reluctant to take a case they can't win. That said, some often don't investigate the facts enough to know they can't win until AFTER they've filed suit. Some will take a loser of a case just for the chance of a quick buck or two from your insurance. But if there's any question over whether you had non-force options or whether you used more force than needed to stop a perceived threat (especially if it involves a shooting a teen) there's probably an attorney out there who would take it if the family looks hard enough. And it's not likely you'll be able to recover your costs after you win.

- Str8Shooter
 

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Str8Shooter thanks for clearing up what exactly this law means for the average person. It sucks but it is what it is. I'm pretty certain if I ever have to use deadly force that it would be justifiable so I'm not going to worry about civil suits. I'll worry about protecting my family.
 

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I guess all we can hope for is that the perp shows up with all his kin folk so we can take them all out and leave no one to file a law suit.:ak
Sick, Henry. Sick.
But I like the way you think. :)

Well we are finding how difficult it is to search the records to find a real life self defense scenario to study in another thread.
Here's a case that's on point regarding how the courts are likely to apply this. I have NOT checked to see if this is still applicable (whether it's been superceded by a more recent ruling or State Supreme Court ruling). I'll try to post a synopsis of this when I'm back from my holiday travels. (The short version is that Peterson was charged with murder for a shooting he claimed was self-defense. He raised the issue pre-trial and the judge in the case held a hearing to determine whether immunity attached to the claim of self-defense. The judge heard facts regarding the shooting and decided it was not a case of self-defense to which immunity would apply.)

Link: Peterson v. State

- Str8Shooter
 

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Str8Shooter thanks for clearing up what exactly this law means for the average person. It sucks but it is what it is. I'm pretty certain if I ever have to use deadly force that it would be justifiable so I'm not going to worry about civil suits. I'll worry about protecting my family.
That's the way I see it. It's still better to be judged by 12 than carried by 6, no matter how you slice it.

- Str8Shooter
 

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The problem is determining what's a good shoot.
AFS
This is a good place to start looking on what a "good shoot" is, and is not.

http://www.flsenate.gov/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0776/SEC031.HTM&Title=->2008->Ch0776->Section%20031#0776.031

The 2008 Florida Statutes

Title XLVI
CRIMES Chapter 776
JUSTIFIABLE USE OF FORCE

776.012 Use of force in defense of person.--A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

The 2008 Florida Statutes

Title XLVI
CRIMES Chapter 776
JUSTIFIABLE USE OF FORCE

776.031 Use of force in defense of others.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

The 2008 Florida Statutes

Title XLVI
CRIMES Chapter 776
JUSTIFIABLE USE OF FORCE

776.08 Forcible felony.--"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
 
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