Florida Stand Your Ground...

Discussion in 'Too Hot for Swamp Gas' started by ArtVandelay, Jul 14, 2013.

  1. GatorBen
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    GatorBen Well-Known Member

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    The statute is here: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.032.html

    The Peterson hearing isn't specifically provided by statute, that comes from case law in the criminal context. But civil courts hold immunity hearings all the time in different contexts, and I see no reason why in this specific context not seeking a Peterson hearing in a criminal case would bar you from filing a motion to dismiss based upon absolute immunity and requesting the court to hold an evidentiary hearing upon such motion in a subsequent civil suit. They are different cases, and just from common sense (I haven't researched this and it isn't advice) I don't see why electing not to request a procedural remedy in one case would affect the availability of a procedural remedy in another. It's not like it would be taking inconsistent legal positions, it would just be taking a different procedural approach.
  2. Lawdog88
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    Lawdog88 Well-Known Member

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    So, an immunity finding in a criminal context is - or is not - res adjudicata, in a subsequent civil context ?

    Or do the differing standards of proof require independent findings ?
  3. GatorBen
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    GatorBen Well-Known Member

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    Let me think about that one. I think that's a different question than whether not requesting an immunity determination in the criminal context would affect your ability to ask for one in a subsequent civil suit.
  4. leogator
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    leogator Active Member

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    But is there any case law associated with invoking immunity?
  5. Lawdog88
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    Lawdog88 Well-Known Member

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    I have had one immunity hearing in a criminal context, and immunity was granted.

    There is a dearth of case law on the issue.
  6. GatorBen
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    GatorBen Well-Known Member

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    I think you could make the typical nonmutual estoppel arguments against treating it as res judicata - they would seem to be particularly potent if it was a Defendant seeking to assert civil immunity based on a criminal immunity finding, given that the plaintiff / victim was not a party to the criminal immunity hearing and would not have had an opportunity to present evidence at the hearing. Going the other way? Perhaps, looks to be an open question.

    I don't know that the burdens themselves present an issue though, given that from what I have read of Peterson it puts the burden of proof for establishing immunity at a preponderance level, does it not?

    But like I said, I think that's a different question than this one. It isn't "actually litigated" in the criminal trial so you can't have a preclusion problem, and I'm just not seeing - at least not without having an argument as to why it would be the case in front of me - how foregoing a procedural exit point in the criminal case would forfeit an immunity defense in the civil context.

    And leo - there is some case law on the immunity issue in the criminal context, but not really anything meaningful in a civil context and none addressing anything like this issue that I am aware of.
  7. leogator
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    leogator Active Member

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    I'm surprised! No case law from other states that have comparable SYG laws? Where are those law students when you need them?
  8. rpmGator
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    rpmGator Well-Known Member

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    Wait on the police... Now that one is a hoot.

    The police will arrive just in time to do the paperwork and contact the victims next of kin.

    Even in this case, everything happened before they got there. The police won't be there when you need them, face reality for just one moment.

    We are still innocent until proven guilty and the effort to make gun laws make you guilty until proven innocent, will end up being the rule for everyone accused of anything.

    As before, my actions when faced with life and death will not change with or without SYG .

    All it does without, is to make you go to court and spend your life savings, to prove your innocence after being attacked.
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  9. leogator
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    leogator Active Member

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    We have freaking battery laws that define battery as unwanted touching and we take people to court over that and you want to take a life and us not to question your judgement. Really? What if you had a grudge against the guy and you just shot him? Or you had a bad day and you just shot him? What if GZ wounds were self inflicted to bolster his statement?

    What if you lost a dear one to such a person?
  10. Lawdog88
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    Lawdog88 Well-Known Member

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    If I lost a dear, non-angelic relative, who liked to fight, knew how to fight, knew how to disable with a first punch to the nose, knew how to pin an opponent and rain down MMA-style blows, liked to smoke pot, film gang jumpings, and talk tough trash to impress peers and impressionable like-minded females, who was committing a felony and was killed in self-defense in a justifiable shooting, I would come to terms with it.
  11. helix139
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    helix139 Premium Member

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    Without witnesses, this can occur with or without SYG, as the Zimmerman case showed.
  12. madgator
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    madgator Well-Known Member

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    WOW! Just wow!

    Ignore facts, attempt to cast doubt with a ridiculous supposition..... and finally, appeal to emotion.


    unreal
  13. rpmGator
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    rpmGator Well-Known Member

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    First, no where did I say I wanted to take any life...that wasn't trying to take mine. Sorry, but I won't die so you can feel smug.

    I am also innocent until proven guilty if I do. Changing our whole legal system to compensate something that is legal in 30 states is foolish at best. Those that use the law in the wrong way, will most likely be charged when things don't add up.

    Either way, with or without the law, the decision will be the same if placed in a life and death situation.

    Life and death by the way, does not include all the hypotheticals of someone using it for crime. As that is a crime.

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