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Malicious prosecution

vitus979

Apr 20, 12 12:18

Post #1 of 21 (1077 views)

Malicious prosecution	Quote \| Reply

I am not all that familiar with malicious prosecution laws, but I think if I were the prosecutor in the Zimmerman case, I'd start looking into it.

This is from http://www.floridalegalblog.org/...ous-prosecution.html.

"In order to prove a cause of action for malicious prosecution a plaintiff must prove six elements: '1) the commencement of a judicial proceeding; 2) its legal causation by the present defendant against the plaintiff; 3) its bona fide termination in favor of the plaintiff; 4) the absence of probable cause for the prosecution; 5) malice; [and] 6) damages'.”

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

JSA

Apr 20, 12 12:26

Post #2 of 21 (1072 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

The standard is so high, it is nearly impossible to prevail. Most of the time you have to prove there was no basis for ANY charge to be filed against you and the prosecutor knew it at the time.
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iron_mike

Apr 20, 12 12:30

Post #3 of 21 (1065 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

vitus979 wrote:

i'd say #5 is a toughie

-mike
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vitus979

Apr 20, 12 12:33

Post #4 of 21 (1064 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

I am sure the standard is very high. It is looking more and more like this case would qualify, though, particularly given the aspect of Florida's stand your ground law that specifically protects against arrest without probable cause of a crime- that is, the assumption under Florida that the shooting was justified unless probable cause exists to believe otherwise.

There appears to be no probable cause that Zimmerman committed any crime whatsoever.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Rambler

Apr 20, 12 12:34

Post #5 of 21 (1059 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

There are usually immunity issues to get over in suing a public prosecutor. That often scares off lawyers from taking the case on a contingency fee. Therefore, the ordinary plaintiff has to shell out a retainer and pay a bunch of fees while the prosecutor is defended by the insurance company. If Z is acquitted or otherwise wins, his book deals and interviews may give him the resources to make some trouble.

JSA

Apr 20, 12 12:35

Post #6 of 21 (1056 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

vitus979 wrote:

Except for the dead victim.
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j p o

Apr 20, 12 12:39

Post #7 of 21 (1045 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

JSA wrote:

The standard is so high, it is nearly impossible to prevail. Most of the time you have to prove there was no basis for ANY charge to be filed against you and the prosecutor knew it at the time.

In OH you can actually get it because there is a screwy way for private citizens to file charges. This happens extremely rarely though.

The one case where I can remember private charges being filed was when some kids accused the basketball player Jim Jackson of threatening them with a gun while they were in different cars driving down the road.

I can see how you could quickly get to malicious prosecution if someone wanted to play with that. But for an actual prosecutor to get hit with it, I just can't see it sticking very often. Maybe the guy in Maracopa county in AZ that just got disbarred.

vitus979

Apr 20, 12 12:39

Post #8 of 21 (1045 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

There doesn't appear to be a dead victim. There appears to be a dead assailant.

There appears to be no probable cause to believe otherwise, which seems to be a situation specifically covered by Florida's stand your ground law.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

JSA

Apr 20, 12 12:55

Post #9 of 21 (1017 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

vitus979 wrote:

"Assailant" is a legal conclusion, which can only be arrived at after review of the facts and determination by judge or jury. Until that time, the dead person in a murder case is a victim.
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“If there are no dogs in Heaven, then when I die I want to go where they went.” - Will Rogers

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LorenzoP

Apr 20, 12 13:06

Post #10 of 21 (1006 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

plus, from my reading there are inconsistencies within Zimmerman's testimony, and his testimony and physical evidence -and this may 'require' that a charge be presented (though may not stick)

vitus979

Apr 20, 12 14:26

Post #11 of 21 (951 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

"Assailant" is a legal conclusion, which can only be arrived at after review of the facts and determination by judge or jury. Until that time, the dead person in a murder case is a victim.

Unless there's probable cause to believe that the dead person is a victim, there shouldn't be an arrest or murder trial- that's the pertinent part of Florida's stand your ground law. The mere fact that Martin was shot to death by Zimmerman is not probable cause that Zimmerman committed a crime.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

JSA

Apr 20, 12 15:01

Post #12 of 21 (920 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

vitus979 wrote:

"Assailant" is a legal conclusion, which can only be arrived at after review of the facts and determination by judge or jury. Until that time, the dead person in a murder case is a victim.

Unless there's probable cause to believe that the dead person is a victim, there shouldn't be an arrest or murder trial- that's the pertinent part of Florida's stand your ground law. The mere fact that Martin was shot to death by Zimmerman is not probable cause that Zimmerman committed a crime.

I completely disagree. Stand your ground is an affirmative defense to a homicide charge. There is a homicide here. Zimmerman committed that homicide. Zimmerman admits that. Stand Your Ground is an affirmative defense, just like self-defense. The defendant must assert said defense and the burden is on the defendant to demonstrate the applicability of said defense.

If there is substantial evidence (other than just the word of the defendant) that the defendant acted solely in self-defense, a criminal charge may not be warranted. However, it may be. It may be up to the jury to decide whether the defense of self-defense applies.
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“If there are no dogs in Heaven, then when I die I want to go where they went.” - Will Rogers

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vitus979

Apr 20, 12 15:08

Post #13 of 21 (914 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

You are a lawyer and I'm not, but I don't think you're correct here. I think that this is what makes Florida's stand your ground law problematical- it really does extend the castle doctrine, such that the presumption is that the use of force is lawful, unless there's probable cause to believe otherwise.

(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.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

JSA

Apr 20, 12 15:20

Post #14 of 21 (907 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

vitus979 wrote:

It is an extension of self-defense, not the castle doctrine. Here is the best explanation I have read -

Florida’s “Stand Your Ground” law does not create a new type of affirmative defense. The principle that person may use deadly force in self-defense if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm has been the law in Florida for well over a century. See Lovett v. State, 30 Fla. 142, 163-164 (Fla. 1892). Rather than creating a new defense, “Stand Your Ground” broadens the scope of a self-defense claim by establishing a general “no duty to retreat” rule. Prior to the enactment of the statute, a person could not use deadly force in self-defense without first using every reasonable means within his or her power to avoid the danger, including retreat. See Weiand v. State, 732 So. 2d 1044 (Fla. 1999); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982). As stated in earlier appellate court decisions, a combatant had to "retreat to the wall" before using deadly force. See Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997). This former “duty to retreat” derived from the common law, rather than from statute.

Also, we have this --

The justifications for use of force will also not apply where the evidence establishes that the defendant initially provoked violence against him- or herself. To claim self-defense in such a scenario, Section 776.041 requires the defendant to demonstrate that he or she used every reasonable means short of deadly force to extricate him- or herself from the situation, and that the degree of force used by the other person (the initial non-aggressor) led the defendant to reasonably believe that he or she was in imminent danger of death or great bodily harm. Alternatively, a defendant who is an initial aggressor may claim self-defense if: (1) in good faith, he or she withdrew from physical contact, (2) clearly indicated to the other person that he or she desired to withdraw and terminate the use of force, and (3) despite the communication and withdrawal, the other person continued or resumed the use of force. See Section 776.041(2)(b), Florida Statutes.

So, again, who gets to make these decisions, the police, the prosecutor, or the jury? That is the essential question. Let me give you a typical scenario I used to face, back in the day -

Boss: Joel, you have a tough case here. Are you filing criminal charges?
Joel (Me): Well, sir, I think we have an issue. There was a homicide here, no doubt. But, in addition to the statement of the defendant, a witness says the victim jumped the defendant and initiated the action that led to the defendant killing the victim.
Boss: So, what do you think?
Joel: Well, sir, the defense will assert self-defense. I believe the evidence is sufficient to enable to defendant to carry that burden. The defense will prevail and I agree. I would not issue charges against the defendant.
Boss: Joel, in my 30+ years of practicing law, you are the best attorney I have ever seen. You are smarter and better than me. Hard to admit, but, true. You have never lost a case. Therefore, I am going with your gut. Good job! Let's see about a raise for you!

So, that is typically how it (should) work(s) ... kinda ;-P ...
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vitus979

Apr 21, 12 6:13

Post #15 of 21 (837 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

Those aspects of the Florida's law are not really unusual- I think that's pretty standard practice anywhere.

This is the unusual part, which seems to me to indicate that the presumption of the law is that the use of force is justified unless there is probable cause to think otherwise. (Much like the presumption is that I'm justified in shooting a home intruder unless there's probable cause to believe otherwise.)

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).

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

realAlbertan

Apr 21, 12 6:24

Post #16 of 21 (830 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

I agree and could he not be found guilty of a lesser included offence like manslaughter? This would be the case in most jurisdictions.
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JSA

Apr 21, 12 6:24

Post #17 of 21 (829 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

Who determines when the use of force is justifiable? That is a legal conclusion. Who has the burden of asserting this defense? The defendant does.
_______________________________________________

“If there are no dogs in Heaven, then when I die I want to go where they went.” - Will Rogers

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vitus979

Apr 21, 12 6:32

Post #18 of 21 (828 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

What I'm reading is that the use of force is presumed to be justified in Florida unless there's probable cause to believe otherwise, and that a person is immune from arrest and prosecution for using deadly force in self-defense unless there's probable cause to believe that the use of deadly force was illegal, or unjustified.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Philb

Apr 21, 12 6:42

Post #19 of 21 (817 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

So the takeaway from this is 'no witnesses, no crime'.

JSA

Apr 21, 12 7:24

Post #20 of 21 (801 views)

Re: Malicious prosecution [vitus979] [In reply to]	Quote \| Reply

vitus979 wrote:

Force is only presumed justified if the defendant can demonstrate he/she was in imminent danger. Under the "old" Florida law, one has to retreat (or attempt to retreat or show retreat was not possible) before using deadly force in self-defense. Under the Stand Your Ground law, the defendant no longer has to worry about the retreat element. But, the defendant must still demonstrate that he/she was in imminent danger.

Under your explanation of the Florida law you could have this scenario: Defendant is walking down street. Victim is walking towards him. As they pass, Defendant shoots Victim. Under your explanation of the law, the presumption would be that the shooting was justified and the burden would be on the prosecution to prove otherwise. This is not how it works.
_______________________________________________

“If there are no dogs in Heaven, then when I die I want to go where they went.” - Will Rogers

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vitus979

Apr 21, 12 11:04

Post #21 of 21 (744 views)

Re: Malicious prosecution [JSA] [In reply to]	Quote \| Reply

As they pass, Defendant shoots Victim. Under your explanation of the law, the presumption would be that the shooting was justified and the burden would be on the prosecution to prove otherwise. This is not how it works.

In Florida, I think it is. As I've said, I think that's the real problem with Florida's version of stand your ground. The aspect of it that you're talking about is really no different in any state, in practice, and had absolutely no bearing on the Zimmerman/Martin incident in any event.

I think that the police acted according to Florida law in not arresting Zimmerman- because they weren't allowed to legally, not having any probable cause to believe that Zimmerman's action in shooting Martin was illegal. I think the prosecutor in Florida is bound by that same law, and I have yet to see their probable cause.

"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."