When will Bama courts acknowledge a right to a pre-trial “Stand-your-Ground” immunity hearing?

In 2005, the Florida State Legislature passed what has become known as the “Stand-your-Ground” law. Approximately twenty-four (24) states have followed the lead of Florida in passing similar laws. In 2006, Alabama lawmakers substantively copied provisions from the Florida “Stand-your-Ground” law and modified several provisions of the Alabama self-defense statute; for instance, it removed the historic “duty-to-retreat” in certain circumstances.

However, another critical modification was the addition of Ala. Code § 13A-3-23(d). It reads as follows:

A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.

The Legislature clearly employed the term “immunity.” The statute employs the language immunity and not merely justification. Black’s Law Dictionary defines immunity as “freedom or exemption from penalty, burden or duty.” A person meeting the requirements of Ala. Code § 13A-3-23(a) is exempt and free from the burden of criminal prosecution or civil litigation. Accordingly, Ala. Code § 13A-3-23(d) provides not just a defense at trial but a bar to trial.

The statute, though, is silent concerning the processes and procedures for invoking and adjudicating such statutory immunity. Multiple state appellate courts, from jurisdictions with similar copycat “Stand-your-Ground” legislation, have addressed similar statutory silence and have judicially established certain procedures.

Each state appellate court which has reviewed and addressed “Stand-your-Ground”-type immunity claims has determined that the accused has a right to a pre-trial evidentiary hearing to adjudicate the accused entitlement to the statutory immunity.

Colorado appellate courts were the first to address the entitlement to a hearing and the procedures thereto. In People v. Guenther, 740 P. 2d 971, 975 (Colo. 1987), interpreting their “Stand-your-Ground” statute, the Supreme Court of Colorado found as follows:

In accordance with the plain meaning of these terms, the phrase “shall be immune from criminal prosecution” can only be construed to mean that the statute was intended to bar criminal proceedings against a person for the use of force under the circumstances set forth in subsection (2) of section 18–1–704.5.

In the silence of statutorily delineated procedures, that Guenther Court proceeded to find that their “Stand-your-Ground” statute:

confers authority on a court to conduct a pretrial hearing on whether the statutory conditions for immunity from prosecution have been established and, if so established, to dismiss the criminal charges.

Following the reasoning of the Guenther, the District Court of Appeals of Florida, First District, found also the right of the accused to an evidentiary, pre-trial hearing on the claims of statutory immunity, pursuant to the Florida “Stand-your-Ground” law. After analyzing their “Stand-your-Ground” statute, this Florida intermediate appellate court declared:

The wording selected by our Legislature makes clear that it intended to establish a true immunity and not merely an affirmative defense.

Peterson v. State, 983 So. 2d 27, 29 (Fla.Dist.Ct.App. 2008) Therefore, the Court held:

Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

The Georgia Supreme Court similarly held that a trial court erred in refusing to rule pre-trial on the defendants’ motions for immunity, and remanded the matter for a pre-trial determination of whether the defendants were entitled to immunity from prosecution under the State of Georgia “Stand-your-Ground” law. Fair v. State, 284 Ga. 165, 166, 664 S.E. 2d 227, 230 (2008)

And lastly, the Supreme Court of South Carolina interpreted their “Stand-your-Ground” statute as providing the accused a right to a pre-trial adjudication of statutory immunity. “Immunity under the Act is therefore a bar to prosecution and, upon motion of either party, must be decided prior to trial.”  State v. Duncan, 392 S.C. 404, 410, 709 S.E. 2d 662, 665 (2011), reh’g denied (June 8, 2011)

Many other courts have affirmed a right to a pre-trial hearing for the accused to establish his eligibility for immunity. See  State v. Gallo, 76 So.3d 407; Gray v. State, 13 So.3d 114;  Dennis v. State, 51 So.3d 456; Hair v. State, 17 So.3d 804; and Mederos v. State, 102 So. 3d 7.

Each appellate court which has addressed this issue has determined that the “Stand-your-Ground”-type immunity claims must be determined by a trial court as a matter of law before the trial commences.

At least one other Alabama trial court has employed the procedures suggested herein and in fact that court found the Defendant immune. In September 2010,  Jefferson County Criminal Court Judge Tommy Nail dismissed the state’s case against Robert “Bob” Allen Carleton, 49, of Pell City, who was accused of murdering his 67-year-old father, William “Bill” Randolph Carleton Sr., after defense attorneys asked the court that their client be immune from prosecution based on the 2006 change in the self-defense law of the state. Nail ruled that the defense “met its burden of proving by a preponderance of the evidence that he (Carleton) is entitled to the immunity provisions of Alabama Code 13A-3-23 (d) and (e),” and the defense motion to dismiss was granted and the murder indictment was dismissed before a jury could hear any evidence in a criminal trial. The Court of Criminal Appeals affirmed, by memorandum, the Order because the State failed to properly preserve any issues on appeal.

When will Alabama appellate courts declare such a right exists and importantly declare the processes and procedures for such hearings?  Alabama should follow the persuasive authority of every court which has addressed this issue. The accused is entitled to an evidentiary, pre-trial hearing to adjudicate his entitlement, when raised, to the statutory immunity of Section 13A-3-23(d).

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