[QUOTE=Bone]
In the case of FL, where a hearing needs to be held prior to granting civil immunity, it would seem that that could address your concern since the immunity could only be sustained if self defense was determined by a preponderance of the evidence. It seems this attribute of the immunity has a worthwhile purpose of not allowing the estate of the deceased to extort the person who exercised legitimate self defense.
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It doesn’t matter what standard of proof is applied. You can’t foreclose a right of action against somebody who wasn’t party to the original matter. The plaintiff has no right to select the prosecutors or the issues raised at the criminal SYG hearing. To bar recovery on that basis would violate the plaintiff’s right of access to the courts, which is guaranteed by Article 21 of the Florida Constitution (“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”)
No, it’s a civil procedure. The hearing provided at the outset of a criminal trial has nothing to do with the civil immunity provision. That hearing was judicially created since the statute doesn’t specify whether SYG criminal immunity is a jury question. Note the language of the civil immunity provision:
[QUOTE=F.S. 776.032(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).
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The “court” referenced is obviously the court where the civil action is filed. The court hearing the criminal matter cannot award fees and costs for a civil action that may not even have been filed when it reliquishes jurisdiction. Heck, there may not even have been a criminal prosecution. It stands to reason, therefore, that its holdings are not determinative of SYG civil immunity. Think about it: why would the defendant waive a defense in a civil action simply because he failed to assert it in a criminal prosecution?
I’m refering to the hearing in civil court, not the criminal hearing or acquittal. I may not be understanding FL law correctly, but what I’m expressing support of is the ability to ward off an actual trial through a judicial hearing to determine based on the same standard (preponderance or reasonable doubt - depending on the type of trial) if the action was legitimate self defense. If it is, then both the criminal and civil actions evaporate, respectively. I don’t think this violates the plaintiffs access to the courts, right?
It’s a close question. Any statutory instrument which takes factfinding power away from the jury runs the risk of violating the right of access (it’s Art. I, Section 21, not Article 21 as I seem to have posted earlier).
It can’t. I presume there would be two separate hearings if there were parallel criminal and civil proceedings. Maybe. I don’t think the FSC’s decision providing for a pretrial immunity hearing in a criminal case makes sense, but there you go.
But it exists, and so now you have to harmonize it with the existing provisions. The statute clearly doesn’t contemplate multiple hearings. The intent of legislature was clearly to immunize a person against both criminal and civil process.
But at the same time, they failed to lay out any procedure to accomplish this.
Subsection (3) specifically notes that the court (whichever one that may be) awards fees and costs “if the court finds that the defendant is immune from prosecution as provided in subsection (1).” Given that the criminal tribunal cannot award fees and costs in the civil action, and that reference is made to the (presumably awarding) court making a finding, the civil court must have to determine for itself if SYG immunity applies. I suppose it could adopt a prior criminal finding, but that requires a hearing anyway.
Wouldn’t that child also have a cause of action for wrongful death? And no reason (that I know of, but, again, civil pro = uncharted territory) to join his action with his grandparents’. Correct?
If that’s true, then how does his grandparents’ failure to win an SYG hearing extinguish his own interest?
Now we have, potentially, one hearing for the criminal case, and one for each and every plaintiff?
Fla. R. Civ. P. 1.210(a) requires joinder of parties “if that person’s presence is necessary or proper to a complete determination of the cause.” Fed. RCP 19 similarly provides that “a person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if… in that person’s absence, the court cannot accord complete relief among existing parties”.
If it makes you feel any better, it did not occur to me that the kid would be an indispensible plaintiff until I tried to figure out why we don’t have parallel tort actions.
Unfortunately, I don’t have time to address the individual posts above, but would like to note two things. First, a Florida SYG hearing very definitely is normally a criminal proceeding. See Dennis v. State (2010). See also here (discussing the decision and its history). Indeed, I can find no case in which such a hearing was held in a civil wrongful death action. Second, to me, the natural reading of section 776.032(3) is that it presumes a hearing in the criminal case, which is binding in the civil one. The language again:
By my reading, the last clause only makes sense if one assumes a determination was made in the criminal case. It says this is binding in a subsequent civil case (even though the plaintiffs obviously can’t have been parties), to the extent even of awarding a successful SYG defendant attorneys fees. It may be that the Florida courts will reach a contrary result either way in civil cases (permitting an SYG hearing and/or holding that a criminal one isn’t binding on non-party plaintiffs). But I can see no basis in the statute or the case law to date to assume they will.
That’s a strange interpretation. How can the court “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” if the civil action cannot be filed after the criminal hearing?