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Friday, September 29, 2017

Florida Supreme Court overturns 'stand your ground' decision

Posted By on Fri, Sep 29, 2017 at 9:52 AM

In a legal dispute stemming from a Tampa bar fight, the Florida Supreme Court on Thursday drew a line in the use of the state's “stand your ground” self-defense law in criminal and civil cases.

The issue facing justices involved criminal charges and a civil lawsuit filed against Nirav Patel after he struck Ketan Kumar with a cocktail glass in 2008 at a nightclub, permanently damaging Kumar's eye.

Using the “stand your ground” law, Patel successfully argued in circuit court that he should be shielded from criminal prosecution because he struck Kumar in self-defense. He also contended that the finding of self-defense in the criminal case should prevent the civil lawsuit filed by Kumar from moving forward.

The 2nd District Court of Appeal agreed with Patel. But in a unanimous opinion Thursday, the Supreme Court overturned the appeals-court ruling and said a finding of “stand your ground” immunity in a criminal case could not be used to block a civil lawsuit.

Florida law allows “stand your ground” immunity in criminal and civil cases. But the Supreme Court opinion effectively said a determination of immunity in a criminal case does not carry over to a civil case.

The opinion, written by Justice Alan Lawson, pointed in part to a section of the “stand your ground” law dealing with attorney fees, saying that it “implies recognition by the Legislature that civil immunity will be determined separately in a civil proceeding.”

Lawson also cited a change approved this year by lawmakers that dealt with the burden of proof in “stand your ground” criminal cases. That change placed a burden on prosecutors to prove by “clear and convincing evidence” that defendants are not entitled to immunity. Lawmakers took up the issue because of a 2015 Supreme Court decision that had placed a burden of proof on defendants.

In Thursday's opinion, Lawson wrote that the change led to different burdens of proof in criminal and civil “stand your ground” cases.

“(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,” the opinion said. “Even in a case where the state could not prove by clear and convincing evidence that the defendant was not entitled to immunity, the criminal defendant may not be able to prove by a preponderance of the evidence that he is entitled to immunity in the civil case.”

The long-controversial “stand your ground law” says people can use deadly force and do not have a duty to retreat if they think it is necessary to prevent death or great bodily harm. In the Tampa case, Patel contended that he struck Kumar in self-defense after being attacked in the bar.

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