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The debate about Florida’s statutory immunity from criminal and civil liability, commonly referred to as the “Stand Your Ground” law, has reached far and wide. Proponents and opponents alike have opined that the law needs revision and courts have disagreed over the application of its terms. One area of frequent disagreement involves the application of the immunity to law enforcement officers acting within the course and scope of their employment.
The Florida Supreme Court has finally spoken, and in doing so, resolved the conflict between Florida District Courts of Appeal. After consideration of two conflicting lower court decisions and interpreting the law itself, the Court held that the clear and unambiguous statutory language affords law enforcement officers the same immunity provisions available to the public at large.1
At the core of this dispute lies two similar, but substantively different statutes. Section 776.05, Florida Statutes, provides that a law enforcement officer need not retreat or desist from efforts to make a lawful arrest because of actual or threatened resistance from the person to be arrested. It also authorizes an officer to use any force which is: (1) reasonably necessary to defend himself or herself, or another person from harm while making the arrest; (2) necessarily committed in retaking an escaped felon, and (3) necessarily committed in arresting a felon fleeing from justice. Section 776.032, Florida Statutes, Florida’s Stand Your Ground law, provides that a “person” who uses or threatens to use lawful force is immune from criminal prosecution and civil action for the use or threatened use of force if enumerated circumstances exist.
The interplay between these two statutes was examined by the Second District Court of Appeal in State v. Caamano,2 in 2012. In that case, an officer was criminally charged with attempted battery and unsuccessfully asserted Stand Your Ground immunity pursuant to Section 776.032. In denying the officer’s entitlement to immunity from prosecution, the Court reasoned that the more specific statutory language applicable to law enforcement officers contained in Section 776.05, Florida Statutes, controlled over the more general provisions contained in Section 776.032 that applied to the public at large. Therefore, the court reasoned, the Stand Your Ground immunity provision was unavailable to an on-duty police officer for force used in the making of an arrest.
The issue was revisited by the Fourth District Court of Appeal in State v. Peraza 3 in 2017. In that case, an officer successfully moved to dismiss an indictment against him for manslaughter with a firearm arising from the officer shooting a suspect who pointed an air rifle at him. The State appealed the dismissal based on the Caamano Court’s reasoning. The Fourth DCA disagreed with Caamano and affirmed the dismissal of the indictment. In that case, the court reasoned that an officer using force while making an arrest was not limited by the specific statute applying to officers, but was also entitled to seek immunity under Section 776.032, Florida Statutes. The Peraza Court held that, despite the specific statute applying to law enforcement, officers are also “persons” under the law, and that nothing under Florida’s Stand Your Ground law excludes an officer making an arrest from the immunity provisions available to the general public. The Peraza Court certified the conflict with Caamano and certified the question as one of great public importance, thus paving the way for review by the Florida Supreme Court.
In its review of Peraza, the Florida Supreme Court recognized the Caamano Court’s efforts to harmonize different statutory provisions that applied to law enforcement and the more general Stand Your Ground immunity statute. Treating the case as one of statutory construction, the Supreme Court agreed with the lower court’s rationale and found that the two statutory provisions provided overlapping protections for law enforcement officers making an arrest. A noteworthy distinction recognized by the Supreme Court but not considered by either of the lower courts was the distinction between a defense and an immunity.
While the more specific law enforcement statue provides a defense for the use of force during an arrest, it does not include any immunity provisions. Conversely, the Stand Your Ground statute provides an “immunity from prosecution” that is afforded to “any person” who uses lawful force under enumerated circumstances. Since there is no language excluding a law enforcement officer from the clear and unambiguous application to a “person,” a law enforcement officer is entitled to assert the Stand Your Ground immunity defense.
The Supreme Court’s decision reaffirms that “officers are people too” and that they are entitled to the full use of the Stand Your Ground immunity defense applicable to the public at large, whether they are making an arrest or not. The importance of this decision cannot be overstated, because this now provides officers viable legal defenses to prevent lengthy and costly criminal proceedings, if they are able to show through a pre-trial hearing an entitlement to immunity. Although the Supreme Court in Peraza addressed only the criminal charges before it, Florida’s Stand Your Ground immunity provisions provides for immunity for both criminal and civil liability. Therefore, depending on the specific facts of the case, officers facing civil actions for the excessive use of force may have an additional opportunity to obtain dismissal prior to trial and the denial of immunity may also provide the potential for pre-trial appellate review. Law enforcement executives and their counsel should familiarize themselves with these new standards and should continue to monitor this developing area of law.
1 State v. Peraza, Case No. SC17-1978, (Fla. Dec. 13, 2018). 2 105 So. 3d 18 (Fla. 2d DCA 2012). 3 226 So. 3d 937 (Fla. 4th DCA 2017)
J. David Marsey is a former police officer, investigator and prosecutor and is a partner at the law firm of Rumberger, Kirk & Caldwell in Tallahassee, Florida. He defends and advises corporations, government entities and their employees on casualty, employment and constitutional issues throughout the state. For more information, please visit www.rumberger.com.
