The Florida Legislature has granted immunity from prosecution to any person who acted in lawful self defense. Fla. Stat. §776.032 provides that any person who acts with justifiable use of force is immune from criminal prosecution and civil action. “Criminal prosecution” includes arrest, detention and being charged or prosecuted.
So, how does that work exactly? Who decides whether a person was acting in lawful self defense? Initially, it is the police officer investigating the case. The officer determines whether the person is immune from arrest because that person acted with justifiable use of deadly force. §776.032(2) lays out the procedure for a police officer to use standard procedures for investigation, but provides that the officer may not arrest the person unless the officer determines that there is probable cause that the force used or threatened was unlawful.
If the police officer determines that the use of force was not justifiable and makes an arrest, the defendant gets a second bite at the apple. The defendant can file a motion to dismiss, pursuant to Fla. Stat. §776.032. At a hearing on the motion to dismiss, the trial judge would hear testimony, receive evidence and make his or her own determination whether the defendant is immune from prosecution. §776.032(4) lays out the procedure for hearings before a judge. Once a defendant makes a prima facie claim of self defense, the government then has the burden by clear and convincing evidence to show that the defendant is not immune from prosecution. So, a defendant would file a motion claiming that he or she was acting in self defense along with the facts to support the claim. If, on its face, the claim would result in justifiable use of force, the burden shifts to the prosecutor to show by clear and convincing evidence that the use of force was not justifiable. If the judge denies the motion, the case could go to trial where a jury would decide whether the defendant is guilty of the crime or not guilty based on the use of justifiable force. A third bite at the apple.