Like many others, I am outraged by the apparent circumstances surrounding the killing of Trayvon Martin, allegedly by George Zimmerman, in Sanford, Florida, nearly a month ago. It is hard for me to imagine any set of facts, other than being lunged at by someone carrying a deadly weapon, that would justify the use of deadly force. The failure of the Sanford Police to carry out a thorough investigation at the scene of the crime upon arrival is stunning and inexcusable, regardless of the provisions of Fla. Stat. § 776.032, the immunity provisions that apply to Florida’s so-called “stand your ground” law (Fla. Stat. § 776.013, where protection of a home is not involved). The law reads as follows:

776.032. Immunity from criminal prosecution and civil action for justifiable use of force
1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

The statute itself appears to give countenance to the failure of the police to properly investigate, and in fact appears to give the investigating law enforcement agency the power of prosecutor, judge, and jury by stating that it cannot make an arrest unless it determines that there is probable cause that the force used was unlawful.   Thus, Rev. Al Sharpton and others are not off the mark when they accuse the Sanford Police of acting as judge and jury.

The outrageous provisions of this law were brought to my attention in a post by Professor Michael J.Z. Mannheimer of the Salmon P. Chase School of Law at Northern Kentucky University, writing at Profsblawg (via Professor James Milles at University at Buffalo Law School).

As a member of the Florida Bar for 19 years, I never practiced a criminal case.  I am not a criminal law scholar.  So give my opinion as little weight as you care to.  I submit that the statute is unconstitutional, at least in its application, insofar as it attempts to prohibit an arrest, in that it violates the Florida Constitution:

Art. I § 9 states that “No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.”  The immunity from prosecution provision purports to allow a citizen acting under color of law to execute another citizen on a “reasonable belief,” taking away the need for a court proceeding to adjudicate such a finding.  That is a deprivation of life without due process of law by a person acting under color of state law.

Note that the legislature did not attempt to remove access to civil process by the victim of someone claiming to act in self-defense, but it did add provisions to assess costs and penalties on the plaintiff if the court finds that the defendant was immune under the statute.  In criminal matters as well, it is the province of the court, not law enforcement officers, to decide when legal standards have been met in issues of life and death.  The police need to arrest George Zimmerman now, the prosecutor needs to seek an indictment, and let the case wind its way to the Florida Supreme Court to determine whether the purported grant of immunity is constitutional.  Only at a full criminal trial will sufficient evidence be revealed to decide whether George Zimmerman was reasonable in his belief that he faced “imminent death, great bodily harm, or imminent commission of a forcible felony.”

[Update] A quick review of Florida District Courts of Appeal decisions finds that one has held that whether the evidence supports the immunity claim under the statute is a matter of law and for the judge to decide, rather than an issue of the jury, as a common-law claim of self-defense would be.  Another finds that a hearing at trial where the judge viewed the claim using the preponderance of evidence standard was correct.  In that case the court held the defendant was not entitled to use the immunity claim under the facts.  Clearly there is precedent for arrest and indictment of defendants where the benefits of the statute are claimed.  It’s time to arrest and charge Mr. Zimmerman.