Now that the Zimmerman criminal trial has concluded, much attention has focused on the prospects for Zimmerman seeking protection under Florida’s self-defense immunity statute from any possible civil action against him.
Florida’s statute 776.032, is among the broader self-defense immunity statutes, in that it possesses all four qualities of an optimal statute of this type.
First, it is not limited to particular settings or circumstances (e.g., such as to self-defense encounters in and around one’s home).
Second, it prohibits even the arrest of the person who acted in self-defense, in the absence of probable cause for such arrest.
Third, it immunizes against criminal as well as civil liability.
And, fourth, it provides for the defendant who successfully obtains immunity to recover all reasonable legal expenses (and, in the case of Florida, even compensation for lost income) from the plaintiff.
Fully 32 states provide some degree of limitation of liability for the individual who has genuinely acted in self-defense, but there is considerable variety in terms of the scope and manner of protection provided.
Property-centered Immunity
Five states provide self-defense immunity only in the context of a defense of dwelling. Conceptually, this is very similar to the Castle Doctrine, in which you are relieved of any generalized duty to retreat if you are defending yourself in your home. These states include Colorado, Georgia, Hawai’i, Maryland, Ohio, and Wisconsin.
No Arrest In Absence of Probable Cause
Three states provide that the person who acted in claimed self-defense may not even be arrested unless their exists probably cause to believe that their use of force was not legitimate self-defense. As a practical matter, the use of deadly force in self-defense routinely results in the arrest of the person who used that force. Typically the person who used the force either clams up when confronted by investigating officers, or they admit to the use of force but claim it was done in self-defense. All this in the context of a “victim” who is either complaining bitterly about a gun having been pointed at him, or perhaps bleeding out in the street.
Under these circumstances the officers usually conclude that there is at least probable cause that there exists reasonable evidence in support of a potential crime having been committed, and an arrest is made. Whether the act was done in self-defense is, from the officer’s perspective, to be determined by others further down the criminal justice “pipeline”. (For a detailed explanation of the criminal justice “pipeline” and what to expect at each step of that pipeline, see Chapter 1, “Criminal Law: What to Expect,” in “The Law of Self Defense.”).
The five states that prohibit arrest unless there is probably cause that the use of force was not done in legitimate self defense–Alabama, Florida, Kansas, Kentucky, and Oklahoma–essentially require that the police look at both sides of the question–both the use of force as a potential crime and the justification of self-defense.
Immunity Protection from Both Criminal and Civil Liability
Ten states provide immunity protection against criminal prosecution as well as civil law suits. These include: Alabama, Colorado, Florida, Kansas, Kentucky, Missouri, North Carolina, Oklahoma, South Carolina, Wyoming. Note, however, that where a state limits the scope of its self-defense immunity statute generally–as Colorado limits its statute to use of force around one’s home–this limitation applies in the context of both criminal and civil liability.
Recovery of Attorneys Fees, Trial Expenses If Sued Anyway
If a person who used force in self-defense is nevertheless sued, and they successfully argue their claim to self-defense immunity at trial, the party suing them is subject to having to pay the defender’s attorney’s fees and other legal expenses. This rule applies in sixteen states, including Alaska, Florida, Idaho, Kentucky, Louisiana, Maryland, Michigan, Missouri, Montana, New Hampshire, North Dakota, Oklahoma, Pennsylvania, South Carolina, Tennessee, Wyoming.
In fifteen of those states the statute provides that the court “shall” award such expenses where the defendant has successfully argued self-defense immunity. This gratifyingly takes the reimbursement of these expenses out of the hands of the trial court’s discretion. In Maryland, however, the statute only provides that the court “may” order the reimbursement of such expenses.
Odd Twists
I did come across a couple of odd twists in looking at the various states’ self-defense immunity statutes, and thought I share a couple with you.
First, Delaware appears to provide for immunity for the use of force in protection of property, but not for the use of force in self-defense. Indeed, the statute specifically references defense of another person’s property. My sense is that this statute was actually written to protect persons such as armed guards against civil liability for their use of force against robbers. Perhaps a lawyer from Delaware could provide greater context.
Second, New Jersey’s self-defense immunity law is written specific within the context of the use of a “chemical substance in self-defense” . . . and that’s it. So, if you use pepper spray or mace or something equivalent in legitimate self-defense, you seem to fall under the protection of the statute. Any other means of self-defense, whether deadly or non-deadly, would seem to place you outside that umbrella of protection.
Self-Defense Immunity Statutes of the Various United States
Added: Alabama
13A-3-23 Use of force in defense of a person.
Alaska
09.65.330. Immunity: Use of defensive force.
Arizona
AZ 13-413. No civil liability for justified conduct
Arkansas
16-120-303. Attempting to protect persons during commission of a felony.
(NOTE: Was renumbered from 5-2-601 in 2016.)
Colorado
18-1-704.5. Use of deadly physical force against an intruder
Delaware
466. Justification — Use of force for the protection of property.
Florida
FL 776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
Georgia
51-11-9. Immunity from civil liability for threat or use of force in defense of habitation
16-3-24.2. Immunity from prosecution; exception
Hawai’i
663-1.57. Owner to felon; limited liability
Idaho
6-808. Civil immunity for self-defense
Illinois
7-1. Use of force in defense of person.
7-2. Use of force in defense of dwelling.
7-3. Use of force in defense of other property.
Kansas
21-5231. Same; immunity from prosecution or liability; investigation.
Kentucky
503.085 Justification and criminal and civil immunity for use of permitted force
Louisiana
2800.19. Limitation of liability for use of force in defense of certain crimes
Maryland
5-808 – Civil immunity for defense of dwelling or place of business.
Missouri
563.074. Justification as an absolute defense, when.
Montana
27-1-722. Civil damages immunity for injury caused by legal use of force.
New Hampshire
627:1-a Civil Immunity.
New Jersey
2A:62A-20. Immunity from civil liability for use of chemical substance for self-defense.
North Carolina
14‑51.3. Use of force in defense of person; relief from criminal or civil liability.
North Dakota
12.1-05-07.2. Immunity from civil liability for justifiable use of force.
Ohio
2305.40 Owner, lessee, or renter of real property not liable to trespasser.
Added: 2307.60 Civil action for damages for criminal act.
Oklahoma
Added: 21-1289.25 Physical or deadly force against intruder
Pennsylvania
8340.2 Civil immunity for use of force
South Carolina
16-11-450. Immunity from criminal prosecution and civil actions; law enforcement officer exception; costs.
Tennessee
39-11-622. Justification for use of force — Exceptions — Immunity from civil liability.
Texas
83.001. Civil immunity.
Utah
Added: 78B-3-110. Defense to civil action for damages resulting from commission of crime.
Washington
(Note: This is a reimbursement provision, not a true immunity provision, posted simply FYI.)
Added: 9A.16.110. Defending against violent crime — reimbursement.
West Virginia
(Note: Self-defense as “full and complete civil defense,” but unclear if functions as pre-trial immunity.)
Added: §55-7-22. Civil relief for persons resisting certain criminal activities.
Wyoming
6-1-204. Immunity from civil action for justifiable use of force; attorney fees.
6-2-602. Use of force in self defense; no duty to retreat.
(Note: This post has been updated to more accurately reflect the state of self-defense in immunity law in Ohio, which does not appear limited to acts of self-defense around one’s home as previously reported. Thanks to Peter Bossley for the insight–your complimentary copy of “The Law of Self Defense, 2nd Edition” goes in the mail tomorrow, Peter.)
(Note: This post was updated to include Oklahoma. Thanks to “justanokie” in comments for the heads-up.)
(Note: This post was updated to include Washington. Thanks to “Skookum” in comments for the heads-up.)
(Note: This post was updated to include Alabama. Thanks to “inquisitivemind” in comments for the heads-up.)
(Note: This post was updated to include Georgia criminal immunity. Thanks to “Mac” for the heads-up.)
(Note: This post was updated to include Nevada civil immunity. Thanks to “Mac” for the heads-up.)
(Note: This post was updated to reflect that Washington provides neither civil nor criminal immunity, but does provide for state reimbursement of legal expenses incurred by a defendant in a criminal prosecution where the defendant has been acquitted and the jury has made a special finding that the defendant’s use-of-force was lawful self-defense. See 9A.16.110. Defending against violent crime — reimbursement.) [AFB: 2/28/18]
(Note: This post was updated to reflect that Wyoming clarified it’s civil immunity procedure and provided for award of legal expenses, and also adopted criminal self-defense immunity per § 6-2-202, all effective July 1, 2018). [AFB: 6/17/18]
(Note: This post was updated to include Utah civil immunity.) [6/26/18]
(Note: This post was updated to include West Virginia statutory provision for self-defense as “full and complete civil defense”.) [7/1/18]
Attorney Andrew F. Branca and Law of Self Defense LLC provide legal education and services in use-of-force law. Much free and premium content can be found at the Law of Self Defense Patreon page, as well as the free weekly Law of Self Defense Show.
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
Bottom line, what’s it mean for George?
How orotected will he be?
That’s protected,..
Good question.
My sense is that, because GZ decided to not seek immunity from Judge Nelson, it will still be necessary to seek that immunity from a judge in a civil suit if/when he’s sued in civil court by the Martin family.
Even though his potential immunity applies to criminal cases, I don’t think that whatever immunity he could get under FL law would protect him from the DOJ, but I could be wrong.
He was smart to not seek immunity from Nelson cause she almost certainly would have denied it.
The statute all slates if proven not guilty you can recover court costs – why wouldn’t the MOM Team be moving forward on that? Or can’t they recover from the state?
Andrew, help!
MOM already stated he would be looking at the prosecution in recouping some of their expenses. I think it was in the presser right after the verdict.
Why are we even discussing the law?, when it’s clear to almost everyone that the DOJ doesn’t care about the Jury’s verdict. They are on a witch hunt, and the law be damned in their rush to condemn the person whom the jury found innocent of the crime.
We have probable cause 🙂 to believethat, despite the White Black POTUS’s and he DOJ’s best attempts to destroy every principle of civilized society and Rule of Law, we are still a country of laws.
poor editing. Sorry.
Darn. I hit the thumbs down button. Didn’t mean to do that. Someone here said that if you immediately hit the up thumb button it will correct the mistake. It doesn’t! Sorry Katty
It worked! but you have to refresh your screen.
Wouldn’t it be more expressive if they replaced the thumbs down button with a middle finger button? 🙂
The DOrJ is not going to charge Zimmerman.
O’Mara is waiting for the pay-day he’d win if the idiots behind the Martin parents are stupid enough to file a civil action.
Those are not really lawyers. They are self-identified “social engineers”. And they are good at PR using the mau-mau tactics of Jackson or Sharpton.
Hope you’re right. But they still have up the witch-hunt DOJ email link.
Rags did you see that black Reverand who chewed out Piers Morgan. This is one dude who really did get the whole story, right down to knowing and understanding that Trayvon Martin was a thug.
Name?
Reverend Jessie Lee Peterson. Not sure if that is the correct spelling of his name, but close enough for govt work. 🙂
^^^^This^^^^
Rags hits the bullseye, again.
Hey, Rags, if you don’t already have a copy of my book, let me send you one, gratis. Use the form on my blog to give me your mailing info (but be quick, before one of these dirty dogs “fakes” you.)
–Andrew, @LawSelfDefense, #LOSD2
What about GZ filing a civil suit against the estate of TM for battery? The money from HOA settlement as well as the trademarks might be recoverable if he prevails?
Would those damages be big enough to be worth suing for? $1,000 for medical attention, maybe, and $10,000 for dignitary damages (I’m just guessing; I’d truly be interested in what damages one can recover for this kind of battery).
The counterclaim might help, though, if it opens up more evidence about Martin’s aggressiveness.
A better claim might be against Zimmerman’s family for instigating a false prosecution— one started with a false affidavit and no grand jury, mistaken judicial ruling not to dismiss, etc. WOuld that fly legally?
Woo hoo Kentucky!!!
Blue Steel of Kentucky
Keep on shining
Shine on the one who done me wrong
It was on a moonlit night
The moon was shining bright
I got jumped from behind
But I was packin’ that heat of mine
Think it means GZ will have immunity from civil suits when attys file SYG in the court. JMO after reading
The strongest law is scant protection when there are politicians in office who believe it is their duty to echo the voice of the mob.
Precisely! That is why DOJ will charge or in some way legally harass GZ for as long as they can. Zimmerman is going to be punished if not through a conviction then through legal shenanigans. As some Alinskyite once said ‘the process is the punishment.’
Black McCarthyism at work.
Prosecutor confident that in Michigan, Zimmerman would serve time
http://www.detroitnews.com/article/20130718/LIFESTYLE/307180036/Prosecutor-confident-Michigan-Zimmerman-would-serve-time
*this article appeared in the on-line version of the Detroit news yesterday. It is considered the “conservative” paper of record in Michigan, as opposed to the Detroit Free Press.
All quotes and references to Macomb Co. Prosecutor Eric J. Smith have been scrubbed from the article.
He was quoted as saying, among other things, that “it would not have mattered if Trayvon threw the first punch in MIchigan.”
This is the county I live in. This is the state of affairs I live with.
A good reason to live somewhere besides Michigan.
I’d rather stay and fight, if it’s all the same.
http://pjmedia.com/eddriscoll/2013/07/19/beyond-the-fringe/
Are you ready…???
The cops in Chicago are delivering a sternly worded letter to people they suspect of violent crime.
Or their victims…living, I assume…
Yep. In the Xanadu of the North, that is sound thinking.
Hope they didn’t use a cursive font.
I have a dream that one day in America, Trayvon Martin will not be judged by the color of his skin but by the content of his character.
Squeeky Fromm
Girl Reporter
Andrew, it looks like our state of Massachusetts doesn’t provide for immunity for any situation. I believe even in your own home in Mass you have a duty to retreat if you are able to.
MA has Castle Doctrine for INSIDE FOUR WALLS OF YOUR HOUSE ONLY. No curtilage, nothing. Step one foot outside your home and Castle Doctrine goes away.
No immunity provision whatever.
–Andrew, @LawSelfDefense, #LOSD2
Thanx for the answer I have heard numerous explanations thru the years starting with the Worcester Police Service Aide who shot an intruder in the late 70’s. If you remember, Service Aides, who weren’t authorized to carry a firearm on duty, were detailed to handle minor accidents and the like freeing up the police for more serious incidents, the program only lasted a few years.
Shouldn’t you have put Illinois in the list of states that immunize you against civil and criminal liability in self-defense? Also, we have had no duty to retreat anywhere legally allowed to be since before the emergence of SYG laws.
I’d be happy to if you can point me to a statute.
And this post isn’t about SYG, it’s about immunity, two completely different issues.
–Andrew, @LawSelfDefense, #LOSD2
Actually, I _DID_ include Illinois in the list above. You didn’t see it?
–Andrew, @LawSelfDefense, #LOSD2
Cataldo says, “it’s clear that a defendant who acted as Mr. Zimmerman did would be defined as the aggressor.”
Sorry Mr. Cataldo, but I call B.S.
I find it very hard to believe that anything in Michican’s statutes or case law ever concludes that someone can be classified as the “aggressor” who did not violate any laws. Just not buying it.
Sorry, that was supposed to be a reply to Browndog’s post about the Michigan prosecutor who said George would have been found guilty in his court.
Cataldo is the homicide investigator, not the Prosecutor.
Yesterday, that quote was assigned to Smith. Detroit News just changed the names.
Can selective prosecution (or abuse of process) be applied to the DOH investigation and the political commentary from the executive branch. A violation of equal protection. I am wondering if this crap from the DOJ, hotlines, etc., clearly race-related because Zimmerman is “not black” would be subject to injunction in the federal courts. How many things can we point to that the DOJ has just arbitrarily chosen NOT to prosecute? Where can they point to their ordinary procedures in the complete absence of evidence pointing to a U.S. citizen and singling him out to be investigated in the absence of evidence?
From the DOJ website, their own brief:
What about WA?: RCW 9A.16.110 Defending against violent crime — Reimbursement.
Nice catch, Skookum, WA now added.
Use the form on my blog (http://lawofselfdefense.com/contact-us/) and I’ll send you a complimentary copy of “The Law of Self Defense, 2nd Edition,” in thanks.
–Andrew, @LawSelfDefense, #LOSD2
OKLAHOMA? I would think Texas also.
http://www.ok.gov/osbi/documents/SDA_Lawbook_NOV_2012.pdf
TITLE 21 § 1289.25 PHYSICAL OR DEADLY FORCE AGAINST INTRUDER
D. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
F. A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term “criminal prosecution” includes charging or prosecuting the defendant.
G. A law enforcement agency may use standard procedures for investigating the use of force, but the law enforcement 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.
H. The court shall award reasonable attorney 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 F of this section.
I. The provisions of this section and the provisions of the Oklahoma Self-Defense Act shall not be construed to require any person using a pistol pursuant to the provisions of this section to be licensed in any manner.
Justanokie, yes, I missed that one, good catch. It’s now added.
Use the form on my blog (http://lawofselfdefense.com/contact-us/) and I’ll send you a complimentary copy of “The Law of Self Defense, 2nd Edition,” in thanks.
–Andrew, @LawSelfDefense, #LOSD2
I don’t see one for Texas, but if I’m missing it and someone is kind enough to point me to the right statute, I’ll be glad to add it.
–Andrew, @LawSelfDefense, #LOSD2
Mr. Branco, another important aspect of TX self-defense law is that it allows deadly force to protect property, and also allows deadly force to defend another’s person or property.
What annoys/upsets me is one talking head, in criticizing SYG, said that it shouldn’t be legal to bring a gun to a fist fight. Even a lay person can see that every SYG statute clearly states that the fight has to come to you.. not visa versa. If the media can’t get this right, (and some of them are supposed to be lawyers) what hope is there??
As always, my thanks to Andrew and the other legal professionals that post here.
Andrew you forgot to add Alabama, not that it really matters because you can basically shoot anyone on/in your property including vehicles:
(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is:
(1) Using or about to use unlawful deadly physical force.
(2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling.
(3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy.
Immunity clause:
(d) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
http://law.onecle.com/alabama/criminal-code/13A-3-23.html
Indeed, somehow I missed Alabama, Don’t know how, that one was in my notes. 🙁
But, good day for you, check your email, I’d like to send you a book.
–Andrew, @LawSelfDefense, #LOSD2
One peculiarity of Texas law is that deadly force can be used to protect property *at night* from theft or criminal mischief.
TEX PE. CODE ANN. § 9.42 : Texas Statutes – Section 9.42: DEADLY FORCE TO PROTECT PROPERTY
Search TEX PE. CODE ANN. § 9.42 : Texas Statutes – Section 9.42: DEADLY FORCE TO PROTECT PROPERTY
Search by Keyword or Citation
A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
TEX PE. CODE ANN. § 9.41 : Texas Statutes – Section 9.41: PROTECTION OF ONE’S OWN PROPERTY
Search TEX PE. CODE ANN. § 9.41 : Texas Statutes – Section 9.41: PROTECTION OF ONE’S OWN PROPERTY
Search by Keyword or Citation
(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
When I write my “defense of property” blog post are you going to comment in various self-defense immunity statutes? 🙂
–Andrew, @LawSelfDefense, #LOSD2
Good post. One thing you might also comment on is how states treat self defense when the aggressor is a policeman. I have a page on the recent Barnes v. Indiana case in which middle-aged Barnes was convicted of battery for shoving a policeman who was illegally entering his home. The two policemen then tasered him badly enough to send him to the hospital and charged him with battery. The Indiana Supreme Court announced it was changing the common law to make Barnes guilty, having forgotten a recent statute that also absolved him. The Legislature was not happy about that, and essentially re-passed the legislation to send the Court a message.
http://www.rasmusen.org/special/barnes/
I don’t know if the State also could have sued Barnes for damages.
Notably, despite the fact that Barnes was black (and probably the police were white–I don’t recall), *nobody* argued that race was involved or that this was an example of the system being anti-black.
Since then, one of the two officers was fired beating up a sheriff’s deputy, and the other was promoted after also getting in trouble for messing up the trailer of a man driving through town to sell his it, allegedly saying, “Why would a black man be driving a motor home with no utensils, no personal effects, nothing — why would he be driving it by himself unless he had drugs?”
http://m.courierpress.com/news/2011/jan/24/stop-madeto-harass-navy-vet/
http://www.conservativedailynews.com/2012/03/sb1-indianas-no-ilegal-police-entry-bill/
[…] I see Andrew Branca has an discussion of self defense laws at Professor William Jacobson’s Legal Insurrection blog. […]
[…] Branca from Legal Insurrection […]