Florida/Georgia Personal Injury & Workers Compensation

...hich were dropped from the second floor. One of the officers testified that at the time he heard the sounds he saw a flash on the roof of the building and saw an "image" up there. At trial, the defendant City of Miami requested a jury instruction on Section 870.05, Florida Statutes, F.S.A., contending the section absolved it from liability for Cleveland's death....

...f the evidence held the section not applicable in this case and refused to give the instruction. The jury returned a verdict for Petitioner, and the City of Miami appealed to the District Court of Appeal, Third District. That Court reversed, holding Section 870.05, Florida Statutes, F.S.A., applicable and concluding the section ipso facto as a matter *576 of law absolved the City and its officers from civil as well as criminal liability for Cleveland's death. The District Court ordered the cause reversed and remanded with instructions to enter a directed verdict for the City. The District Court also held that even if the death were not justified under F.S. Section 870.05, F.S.A., the cause would have to be remanded for new trial because the trial court refused the City an instruction to the jury on assumption of risk. Because it had considered a novel issue, i.e., the applicability of F.S. Section 870.05, F.S.A., to civil cases, and because it felt its decision passed upon a question of great public interest, the District Court certified the following questions to this Court: "(1) When by reason of the actions of police or other officers of a municipality, in the performance of duties imposed by § 870.04 F.S. [F.S.A.] incident to dealing with a riotous or unlawful assembly, a participant in the assembly or a person present is killed or injured, does the provision of the statute (§ 870.05 F.S....

...[F.S.A.]) that for such actions the officers `shall be held guiltless and fully justified in law' operate to relieve them of civil as well as of criminal liability? and (2) if so, then whether, notwithstanding the broad grant of legal justification in § 870.05 F.S....

...Although they operate to confer jurisdiction of the case upon us, it is not mandatory that we answer them, Zirin v. Charles Pfizer & Co., Fla. 1961, 128 So.2d 594, when we find them inapplicable to the case and we shall refrain from doing so. The questions are not relevant because under the facts of this case F.S. Section 870.05, F.S.A. is not applicable as a matter of law as the District Court holds. Before F.S. Section 870.05, F.S.A....

...At the time of the shooting things appeared quiet. At least one patrol car had already left the scene. There is *577 strong evidence that the shooting occurred simply as an over-reaction to possible sniper fire. The trial judge concluded as a matter of law Section 870.05 did not ipso facto settle the evidentiary question of negligence and permitted the jury to decide that factual issue....

...The cause properly went to the jury on the issue of whether or not the police officers, under the circumstances, were negligent in the manner in which they conducted themselves in firing on the building. It lay within the authority of the trial judge to determine from the evidence whether as a matter of law Section 870.05 absolutely precluded a jury determination of the issue of negligence....

...Accordingly, the decision of the District Court of Appeal, Third District, is quashed and the cause remanded with instructions to reinstate the jury verdict. ERVIN, CARLTON, McCAIN and DEKLE, JJ., concur. ROBERTS, C.J., and ADKINS and BOYD, JJ., dissent. NOTES [*] The assembly referred to in Section 870.05, Florida Statutes, F.S.A., is defined in Section 870.04, Florida Statutes, F.S.A., as "any number of persons, whether armed or not, [who] are unlawfully, riotously or tumultuously assembled in any county, city or municipality."

...risk and refusal to give the above quoted requested charge relating to justification. Arguments based *301 on such assignments were presented in the brief of the appellant. The preliminary question presented in this case is whether the provision of § 870.05 Fla.Stat., F.S.A., that such officers shall be held guiltless and fully justified in law for a killing or wounding in dispersing or quelling an unlawful or riotous assembly, applies to criminal and civil guilt or liability, or applies only...

...unicipality the officers thereof shall proceed there and command dispersal, and the statute provides that where the command is not complied with by peaceful dispersal, the officers are then under the duty to take into custody the persons involved. 1 Section 870.05 provides that if a member of such an assembly or other person present is killed or wounded by reason of the efforts of the officers or persons acting under their direction to disperse such assembly, or to take the members thereof into...

...We are impelled to disagree with that conclusion arrived at by the able trial judge. The construction of the statute for which the appellees contend, and which the trial court placed thereon, that the legal justification provided therein was not applicable to civil liability, is contrary to the clear wording of § 870.05, and operates to give the statute the effect of providing only partial justification, rather than the full justification in law which it expressly states is conferred....

...A., Form 1, 986(b), is: “We, the jury, find for defendant,” for many years the form of verdict for a defendant customarily used in negligence or tort cases is one whereby the jury finds the defendant “not guilty” [of the tort]. The further wording in § 870.05, that for such action the officers shall be held “fully justified in law,” denotes the action to be righteous and without fault....

...does not separately define the word “justified.” The definition of “justified” in the Oxford English Dictionary is: “Made just or right; made or accounted righteous; warranted; supported by evidence.” The grant of legal justification by § 870.05 must be read in connection with the duties imposed on the officers by § 870.04....

...That appears obvious because a civil tort claim, no less than a criminal prosecution, must be based on a wrongful 3 act. Therefore, in riot control situations where the killing or wounding of a person involved or present occurs, under the provision of § 870.05 if the officers involved would not be subject to criminal prosecution therefor, they would not be subject to civil liability for such action....

...Newell, Fla.1958, 102 So.2d 613 ; State ex rel. Johnson v. MacMillan, Fla.App.1967, 194 So.2d 627 ; State v. Buchanan, Fla.App.1968, 207 So.2d 711 ; State v. Chapman, Fla.App.1970, 240 So.2d 491 . It follows, in our opinion, that the legislative grant of legal justification to the officers by § 870.05 may not be made to depend upon a subsequent determination of whether they used gunfire or other force unnecessarily, or more than was necessary, or in a negligent manner, in the performance of such required duties....

...legislature. That body has not seen fit to change or modify the provision in question of this statute since its initial enactment in 1868. Chapter 870 has been amended by the legislature in recent years, in certain respects not changing or affecting § 870.05....

...emergency in certain situations. It is of material significance that in so amending and supplementing Chapter 870 the legislature increased the officers required to enforce the provisions of § 870.04 but left intact the legal justification section, 870.05. We have dealt at length with the scope and effect of §§ 870.04 and 870.05 because the precise questions involved here in connection with the statute do not appear to have been considered and determined previously by Florida appellate courts, and because we regard the questions to be of great public interest....

...d and provided for in Art. V, Section 4(2) of the Constitution of Florida, F.S.A. The appellant presented, alternatively, the contention that where the trial court had ruled that the legal justification for the action of the officers provided for in § 870.05 was not applicable in the civil action, and that the case should go to the jury on the issue of negligence, the trial court committed error by withdrawing from the jury’s consideration the issue as to assumption of risk by the deceased....

...neglects to obey such command, or, when required by such officers to depart from the place, refuses and neglects to do so, he shall be deemed one of the rioters or persons unlawfully assembled, and may be prosecuted and punished accordingly.” . “870.05 When hilling excused....

...a writ of prohibition to prevent his prosecution for two counts of misdemeanor battery on a juvenile. Petitioner alleges that he has both Stand Your Ground immunity under section 776.032, Florida Statutes (2018), and immunity from prosecution under section 870.05, Florida Statutes (2018), which justifies an officer’s use of force to disperse an unlawful assembly.1 We deny the petition....

...The juvenile may have tensed his body and lifted his face from the pavement, but the video from petitioner’s body camera does not show the juvenile actively resisting arrest. We write primarily to address petitioner’s argument that he was entitled to immunity under section 870.05, Florida Statutes (2018). We hold that section 870.05 is not an immunity statute; rather, the statute creates a defense available at trial. Section 870.05 must be read in conjunction with section 870.04....

...persons unlawfully assembled, and may be prosecuted and punished accordingly. § 870.04, Fla. Stat. (2018). 2The other officer’s conduct is the subject of the appeal in State v. Lacerra, 4D21- 399. 2  Section 870.05 states: If, by reason of the efforts made by any of said officers or by their direction to disperse such assembly, or to seize and secure the persons composing the same, who have refused to disperse, any such p...

...icers or any person acting under or by their direction is killed or wounded, all persons so assembled and all other persons present who when commanded refused to aid and assist said officer shall be held answerable therefor. § 870.05, Fla. Stat. (2018) (emphasis supplied). Section 870.05 uses language consistent with a defense at trial (“shall be held guiltless and fully justified in law”), not immunity....

...recognized that such language is consistent with a defense at trial, as opposed to a statute, such as section 776.032, that plainly affords pretrial immunity. See, e.g., State v. Peraza, 259 So. 3d 728, 732 (Fla. 2018). Although it was considering section 870.05 in a civil context, the Florida Supreme Court’s discussion in Cleveland v. City of Miami, 263 So. 2d 573 (Fla. 1972), supports the notion that the statute provides a defense at trial rather than pretrial immunity. The supreme court explained when the statute applies: Before F.S. Section 870.05, F.S.A....

...during (1) an unlawful riotous or tumultuous assembly; And (2) while the police were attempting to disperse the assembly or seize its members who refused to disperse. Id. at 576. The reference to the “trial judge and jury” indicates that the court viewed section 870.05 as a defense at trial. Nothing in section 870.05 suggests a legislative intent to provide for immunity....