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.
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.
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
13A-3-23 Use of force in defense of a person.
16-120-303. Attempting to protect persons during commission of a felony.
(NOTE: Was renumbered from 5-2-601 in 2016.)
41.095. Presumption that person using deadly force against intruder in person’s residence, transient lodging or motor vehicle has reasonable fear of death or bodily injury; person who uses deadly force is immune from civil liability under certain circumstances; definitions.
627:1-a Civil Immunity.
Added: 21-1289.25 Physical or deadly force against intruder
8340.2 Civil immunity for use of force
83.001. Civil immunity.
(Note: This is a reimbursement provision, not a true immunity provision, posted simply FYI.)
Added: 9A.16.110. Defending against violent crime — reimbursement.
(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.
(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]
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