By Terri L. Wilkin
Program Director for Legal Studies, APUS

On September 28, 2017, the Florida Supreme Court ruled that an individual who had successfully avoided criminal prosecution under the state’s “Stand Your Ground” law cannot presume immunity in civil actions stemming from the same incident because the statute does not address civil liability.

The case started in Hillsborough County, Florida, Circuit Court and involved a 2008 bar fight. Ketan Kumar attacked Nirav Patel and Patel retaliated by striking Kumar with a bar glass, permanently blinding Kumar in the left eye.

Patel claimed self-defense under the “Stand Your Ground” law and he was granted immunity from prosecution.

Kumar then filed a civil lawsuit against Patel in Florida’s Second District Court of Appeals. Patel argued that his immunity from criminal prosecution also granted him immunity from civil liability. The Court of Appeals agreed with Patel.

State Supreme Court Overrules Appellate Decision on ‘Stand Your Ground’ Case

However, the Florida Supreme Court overruled the appellate court’s decision. The Supreme Court noted that a separate immunity clause for civil cases was needed, because the criminal immunity clause within the “Stand Your Ground” law does not also cover civil immunity.

In reaching this decision, the court examined the separate language that deals with attorney fees for criminal and civil cases in the “Stand Your Ground” law. The court concluded that if the legislation for immunity from liability extended to civil cases, the law clearly would have included civil cases.

Change in ‘Stand Your Ground’ Law Frustrates Attorneys and Judges

In July 2017, Florida’s legislature changed the “Stand Your Ground” law, putting the onus on the prosecution to prove by “clear and convincing evidence” that the defendant does not qualify for immunity from prosecution and must stand trial.

Previously, the burden was on the defendant to show that he or she was immune from prosecution based on the “Stand Your Ground” defense.

The revised law has been frustrating for Florida judges. Two Miami circuit judges have ruled that the revised “Stand Your Ground” law is unconstitutional. Miami-Dade Circuit Court Judge Milton Hirsch ruled the law unconstitutional because the Florida Supreme Court should have crafted the changes, not the legislature. Hirsch cited the constitutional separation of powers.

Other judges have ruled that the new changes to the ‘Stand Your Ground’ law do not apply to pending cases because they happened prior to July 1, 2017.

Both of these issues are setting the ground for a long line of battles over the “Stand Your Ground” law in the state’s appellate courts.

About the Author

Terri L. Wilkin graduated from the University of Maryland’s Francis King Carey School of Law in May 2007. Terri is admitted to practice law in the State of Maryland and the District of Columbia, and has been admitted in the Federal United States District Court for the District of Maryland. Prior to law school, she obtained a Master of Science dual degree from the Johns Hopkins University in Leadership and Finance/Accounting. Her 26-year career with the Maryland State Police includes assignments in patrol, criminal and drug investigations, white-collar crime, intelligence work, training, the Deputy Director of the Planning and Research Division, and as the Department Prosecutor. She is also a Florida Licensed Private Investigator and a Managing Partner in an Investigative Consulting Firm.