Yes, you can sue 'em: Florida Supreme Court clarifies Stand Your Ground

Criminal immunity does not mean civil immunity.

Alright, you rootin’ tootin’ gun-totin rascals: Just because you got away with shooting your spouse’s new lover, or some random texter in the movie theater, doesn’t mean you’re totally off the hook anymore.

On Thursday, the Florida Supreme Court ruled a person declared immune from criminal prosecution under Florida’s “Stand Your Ground” law can still face a civil lawsuit.

The case stems from a 2008 bar fight at the Kennedy — that sometimes-raucous SoHo nightclub. Court documents say Ketan Kumar attacked Nirav Patel without provocation and Patel defended himself by smashing a cocktail glass into Kumar’s face. Kumar’s optical nerve was severed and he permanently lost sight in his left eye.

Facing a felony battery charge, Patel claimed self-defense under the “Stand Your Ground” law. After a hearing in front of a Hillsborough County judge, Patel won immunity.

Kumar then filed a lawsuit against Patel claiming battery and negligence. Patel went straight to Tampa’s Second District Court of Appeals, arguing he already had immunity from any recourse by Kumar. The appellate court agreed, but Kumar took the issue to the state’s highest court.

In a rare unanimous decision, the justices said the Stand Your Ground law is “silent as to the procedure to be used for determining immunity.”

Making the issue even more complicated, the Florida Legislature passed an amendment to the law this year that shifts the burden of proof in criminal cases to the prosecutor instead of the accused. But there’s nothing in the new statute language about civil cases, so the justices argued the differences implied lawmakers intended separate hearings for immunity.

Or in Justice C. Alan Lawson’s words:

“The 2017 amendment to the Stand Your Ground law creating different burdens of proof for criminal and civil immunity not only implies an understanding that separate immunity determinations will be made, but also forecloses any argument, going forward, that the criminal determination could ever be binding in the civil proceeding,” Justice C. Alan Lawson wrote in the opinion.

Just like a host of other laws passed by the state’s politicians, the judicial branch was left trying to figure out the legislature’s intent.

“The legislature … did not suggest procedural mechanisms for invoking and determining Stand Your Ground immunity,” Justice Lawson wrote. “Necessarily, those procedures are being developed by the judiciary.”

The Stand Your Ground law has been fraught with controversy, confusion and legal changes since its inception.

The shooting of unarmed 17-year-old Trayvon Martin by neighborhood watch leader George Zimmerman, and his subsequent acquittal, outraged the country, including former President Barack Obama.

Jacksonville resident Marissa Alexander faced 20 years in prison after she fired a warning shot at her allegedly abusive husband. She claimed the “Stand Your Ground” defense, but a jury convicted her anyway. The law was updated in 2014 to allow a person to “threaten to use force” if they believe they are in imminent danger.

A 2012 study by the Tampa Bay Times found several gang members and dealers who walked free after claiming self-defense.

Now, judges are beginning to show frustration over the law’s lack of clarity. After the newest amendment passed this summer, two Miami circuit court judges declared the law unconstitutional.

“You can call it a bit of legislative rambunctiousness,” says Tampa attorney Michael Maddux, who represents Kumar. “We see that Stand Your Ground has been so elastic that the Florida Supreme Court is willing to check what it’s doing to other cases.”

(Maddux, and Kumar’s other attorney, Thomas Burns, plan to pursue the civil lawsuit against Patel.)

As you might expect, Clearwater attorney Stephen Romine, who is representing Patel, disagrees with the justices’ decision.

“Either you’re immune or you’re not,” he says. “It’s unfortunate for my client to have to go through the time and cost associated with litigating this again.”

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