Police Don’t Decide Immunity

In scrambling for some way to avoid pre-trial Stand-Your-Ground type immunity hearings, a couple of Alabama prosecutors have relied upon a weak reed:  Ala. Code § 13A-3-23(e). It reads:

A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.

Prosecutors declare: “See, See: the statute says law enforcement decide whether someone is immune.” But it doesn’t say that.

By vesting a separate screening function to law enforcement, the Legislature in no way removed the judicial function of determining whether a person is immune, as a matter of law, from further criminal prosecution.

Remember that Alabama copied its Stand-your-Ground statute from Florida. Florida’s “Stand-your-Ground” law includes Fla. Stat. Ann. §776.032(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.

Can you see the slight similarity between Florida’s §776.032(2) and Ala. Code § 13A-3-23(e).

But even with the presence of Fla. Stat. Ann. §776.032(2), each and every Florida appellate court, addressing the issue, has established a right to a pre-trial hearing for the accused to establish his eligibility for immunity, separate and in addition to the “law-enforcement” screening function. See Peterson v. State, 983 So.2d 27; State v. Gallo, 76 So.3d 407; Gray v. State, 13 So.3d 114; Fair v. State, 664 S.E.2d 227; Dennis v. State, 51 So.3d 456; Hair v. State, 17 So.3d 804.

Accordingly §13-3-23(e) does not eliminate the accused’s right to a pre-trial hearing concerning his immunity of §13-3-23(d).

(This section actually drew some national notoriety. Remember the hub-bub surround George Zimmerman’s non-arrest. It was initially reported that Sanford police did not arrest Zimmerman due to lack of probable cause under Florida’s “Stand Your Ground” statute. Zimmerman waived his right to a pre-trial Immunity hearing after a fairly lengthy and extensive colloquy.)

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