We all know that 21 O.S. §1289.25 (F) makes immune to civil suit in the case of a justified shoot. As provided in the statute, immunity does not attach unless the force was "pursuant to the provisions of subsections B [castle doctrine] and D [stand your ground] of this section." At what point, then, is immunity pierced?
I've seen talk about the Zimmerman case that, under Florida's law, immunity is pierced at the time of arrest, not necessarily at conviction. The relevant language from the Florida statute is:
The language doesn't specifically state that immunity is lost when the defendant is arrested, but it's a reasonable inference: the law provides for both civil and criminal immunity, so if the defendant is arrested or charged, then probable cause must exist to believe that the defendant did not use force in accordance with the law, and thus he has no immunity. The trouble I have is that, while there has to be a certain amount of wiggle room to bootstrap a criminal case (if a conviction is required to pierce immunity, and immunity forbids charging, then immunity would be absolute as conviction comes after charging), it seems to render liability in a civil suit subject to the subjective judgment of an officer, rather than a trier of fact (the trial court).
Oklahoma's statute states, in relevant part:
Again, due process would seem to require that a competent trier of fact render judgment that the force was, in fact, outside of the statutory provisions before civil liability attached (the same "bootstrapping" argument as above applies to the criminal case). Civil liability shouldn't be subject to the question of whether a prosecutor thinks he has enough evidence to win a case (or to score political points, or what-have-you), but rather on the fact that the evidence is there.
(As an aside, Florida's statute has both an integrated and a separated arrest clause: (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful. That makes it even more interesting.)
Lawyers, what do you think? At what point does the shooter need to be adding a civil defense attorney to his team alongside his criminal defense attorney?
I've seen talk about the Zimmerman case that, under Florida's law, immunity is pierced at the time of arrest, not necessarily at conviction. The relevant language from the Florida statute is:
The language doesn't specifically state that immunity is lost when the defendant is arrested, but it's a reasonable inference: the law provides for both civil and criminal immunity, so if the defendant is arrested or charged, then probable cause must exist to believe that the defendant did not use force in accordance with the law, and thus he has no immunity. The trouble I have is that, while there has to be a certain amount of wiggle room to bootstrap a criminal case (if a conviction is required to pierce immunity, and immunity forbids charging, then immunity would be absolute as conviction comes after charging), it seems to render liability in a civil suit subject to the subjective judgment of an officer, rather than a trier of fact (the trial court).
Oklahoma's statute states, in relevant part:
Similar concept, though different language. The arrest in this case is specifically conditioned on probable cause, though, so I would argue that by separating them, the Legislature intended that mere arrest wouldn't pierce immunity. That still leaves us asking whether being charged is sufficient.
Again, due process would seem to require that a competent trier of fact render judgment that the force was, in fact, outside of the statutory provisions before civil liability attached (the same "bootstrapping" argument as above applies to the criminal case). Civil liability shouldn't be subject to the question of whether a prosecutor thinks he has enough evidence to win a case (or to score political points, or what-have-you), but rather on the fact that the evidence is there.
(As an aside, Florida's statute has both an integrated and a separated arrest clause: (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful. That makes it even more interesting.)
Lawyers, what do you think? At what point does the shooter need to be adding a civil defense attorney to his team alongside his criminal defense attorney?
