No Second Self-Defense Immunity Hearing for Marissa Alexander

ANDREW BRANCA JUL 21, 2014 11:40 AM

Marissa Alexander has been denied a second shot at a self-defense immunity hearing (often incorrectly referred to as a “Stand-Your-Ground’ hearing), reports by First Coast News.

Under Florida’s self-defense immunity statute (FL 776.032 Immunity from criminal prosecution and civil action for justifiable use of force) a person claiming self-defense can seek immunity from criminal prosecution and civil suit.  To do so they generally request a hearing in court in which they present their evidence in support of self-defense.

If the hearing judge determines that there is a preponderance of the evidence in support of self-defense, immunity is granted.  Given that a preponderance of the evidence is a vastly greater level of proof than the reasonable doubt required to sustain a claim of self-defense at trial, this approach only makes common sense.

Alexander sought and received a self-defense immunity hearing prior to her first trial (since reversed, and she now awaits retrial). Following that hearing, her motion for self-defense immunity was denied–no surprise, as there is scant evidence in support of her claim of self-defense (and that’s being exceedingly generous).

When Alexander sought a second self-defense immunity hearing leading up to her re-trial, it raised a novel question under Florida law whether a second such hearing was legally required upon demand or even permitted (see Marissa Alexander’s Desperate Efforts for Self-Defense Immunity Hearing Delayed Again and Will Marissa Alexander get second shot at Self-Defense Immunity?).

This past Friday the electronic court records of the case were changed to indicate that Alexander’s current motion for a self-defense immunity hearing was denied, and the actual order denying the request for a second self-defense immunity hearing was released this morning.  It’s embedded below, but here are the highlights:

• The prior self-defense immunity has become “the law of the case” as a matter of Florida law, and because it has been affirmed as such by an appellate court it cannot be changed (absent very unusual circumstances) by this trial court.  The order does, however, seem to suggest that an appeal to a higher court might change this: “A trial court, therefore, generally lacks discretion to change the law of the case.”

•  There’s a generalized discussion about differing elements of self-defense law under Florida statutes §776.012 and §776.013, with the essential difference being that the latter no long seems to require the element of “imminence.”  This clarification of the law came after the Alexander’s first self-defense immunity hearing. This is being used by the defense to argue that there in fact exists very unusual circumstances that warrant the trial judge overruling “the law of the case.” This trial court did not buy this line of argument, as on the facts of this case it would not have changed the outcome.

• The trial court’s order also determines that Florida’s just signed so-called “warning shot” bill (HB89) is not retroactive, and therefore not applicable to the Alexander case.

• Finally, the recitation of the facts of the case in this order do not bode well for Alexander’s claim of self-defense.

Alexander’s retrial is scheduled to start December 1, although delays have been a common feature of this case.

We have covered Alexander’s case intensively here at Legal Insurrection, and will continue to do so. Some of our most recent coverage is here:

One Way Florida’s “Warning Shot” Bill Could Help Marissa Alexander

Florida’s just-signed “warning shot” law unlikely to help Marissa Alexander

Upcoming Florida Sup Ct ruling on 10-20-Life sentences may seal Marissa Alexander’s fate

. . . and much more.

–-Andrew, @LawSelfDefense

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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.

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