...
A person who uses force as permitted in s. 776.012, s. 776.013, or s776.031
is justified in using such force and is immune from criminal prosecution and civil
action for the use of such force...
[highlight]This language makes clear that the law provides a true immunity and not merely
an affirmative defense.[/highlight] The Florida legislative session law notes demonstrate the
true intent behind the new law stating; "The Legislature finds that it is proper for
law-abiding people to protect themselves, their families, and others from intruders
and attackers without fear of prosecution or civil action for acting in defense of
themselves and others". Ch. 2005-27 at 200, Laws of Florida. See Peterson v State,
983 So. 2d 27 (Fla. 1 st DCA 2008)
Around the State of Florida the appellate courts have been wrestling with the proper
procedure for pursuing a claim of immunity. The First District Court of Appeal has
embraced an evidentiary hearing permitting the trial court to weigh and confront
factual disputes to render a ruling. (See Peterson) However, the
Fourth District Court of Appeal has ruled that when the State files a proper traverse
the motion for dismissal must be denied by the trial court and the case proceeds to trial.
(See Velasquez v State, 9 So. 3d 22 (Fla. 4 th DCA, 2009)) The Florida Supreme Court
has not yet issued an opinion on the proper procedure for asserting an immunity claim
in pre-trial litigation. The Second District Court of Appeal affirmed the denial of
a Motion to Dismiss based on FS 776.032(1) immunity, but does not comment on
procedure. State v Heckman , 993 So. D 1004 (Fla. 2d DCA 2007)
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