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"Loud Music" Jury Instructions May be Wrong // Judge's Answers to Questions Contrary to Statute
The judge in the "loud music" murder case may have provided incorrect answers to the jury's questions about whether the doctrine of self defense applies only to the apparent aggressor and not to third parties
f the jury convicts the defendant, this error could provide a basis for appealing the verdict, says public interest law professor John Banzhaf, who provided legal analysis to justify the shootings in self defense of NYC's "subway shooter, DC's "jacuzzi shooter," and others.
Florida's "Immunity from criminal prosecution and civil action for justifiable use of force" stature [776.032] provides that "a person who uses force as permitted [by Florida statutes] . . . is immune from criminal prosecution and civil action for the use of such force." The words of the statute appear to be all encompassing, and apply to any criminal prosecutions, not just those brought because of harm or threat to the apparent aggressor.
Indeed, a legislative analysis of Senate Bill 122 seems to take the same position since it would amend the law to "no longer preclude lawsuits from third parties who are injured by negligent conduct used in self-defense."
This strongly suggests that the current law makes a defendant who lawfully used deadly force "immune from criminal prosecution and civil action" brought on behalf of anyone else, not just the person against which the force was used, even if the defendant's use of force was negligent.
Likewise, the Florida Supreme Court blog, in discussing the law of Florida regarding self defense, states without qualification that "Florida’s Stand Your Ground laws provide immunity from criminal prosecution or civil liability to anyone who uses justifiable force as authorized by relevant statutes." Once again, the immunity is set forth in broad terms, and does not appear to provide exceptions for third parties.
Finally, notes law professor Banzhaf, the judge's answers would appear to be inconsistent with century's old common law which provides that the act of one who acts is self defense, even based upon a reasonable but mistaken belief that he was being threatened, is legally privileged, even if a third party is threatened or even injured. For example, if A shots at B, thinking that B is about to kill him, and the bullet misses and hits C, A is not liable to C for battery. The same would be true if B reasonably felt threatened by A's shooting at B.
In short, suggests Banzhaf, Florida has chosen to provide an even broader range of protections than many other states to someone who shoots another person, thinking that his life is being threatened by that person. Holding that the "immunity from criminal prosecution and civil action" applies only with regard to the apparent aggressor, but not to crimes or torts allegedly suffered by third parties, seems inconsistent with this very broad purpose.
In any event, if the defendant is found guilty, the judge's answers to the jury's three questions will almost certainly provide a strong basis for appeal, says Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
GWU Law School
202 994-7229 // 703 527-8418