News: “Procedure for Self-Defense Immunity Illustrated: Alabama”

Yesterday an Alabama man was denied self-defense immunity by the trial court judge, as reported here. The man shot and killed someone, was charged with murder, and sought self-defense immunity as a means of avoiding criminal liability and having to go to trial. 

The man obviously failed in this effort to receive self-defense immunity, and it’s no real surprise given that he was arrested for questioning immediately after the shooting and found in unlawful possession of marijuana, prescription drugs, and drug paraphernalia. He now continues to trial on the murder charge.

What’s interesting about this story is that it provides us with an opportunity to take a closer look at Alabama’s self-defense immunity statute, which does something that most state’s self-defense immunity statutes don’t do: it explicitly sets out the legal procedure to be applied when a defendant seeks that immunity. 

Florida, in contrast, was one of the first states to adopt self-defense immunity, but the relevant statute provided no guidance on procedure, leaving that to the courts to decide. 

This is not an unreasonable position for the Florida legislature to take—after all, the courts will be the ones applying the immunity law to real people, so why shouldn’t they define the procedure they’ll use in the process.

Because of the politicization of self-defense immunity, however, the “leave it to the courts” approach has resulted in more than 15 years of inconsistent court appellate decisions, procedures, and standards, and subsequent interjection of procedural instruction re: immunity by the Florida legislature. 

Frankly, in Florida the lack of concrete guidance from the legislature has resulted in a mess that continues rolling along.

The Alabama legislature took the opposite approach, providing detailed and explicit guidance on the appropriate procedure for self-defense immunity, so let’s step through each of those provisions and discuss them.

The relevant self-defense immunity statutory language is found in Alabama Code, Title 13A, Criminal Code, §13A-3-23, paragraph (d), and sub-paragraphs (1) through (4) that follow.

(d)(1). 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.

This simply means that in order to qualify for self-defense immunity, your use of force must qualify as lawful self-defense. I know, this sounds obvious, and it really is. Nevertheless, it drives home a point that too many people seem to overlook, and that is not just what self-defense immunity is, but what it isn’t

Self-defense immunity is not some magical get-out-of-jail-free card. It doesn’t turn something that wasn’t lawful self-defense into lawful self-defense. It actually doesn’t have anything whatever to do with the definition of self-defense. 

It merely says that if your conduct qualifies as lawful self-defense—however that may be defined elsewhere in the law—you are eligible for immunity. If, however your use of force falls outside the bonds of lawful self-defense, no immunity for you, and likely no legal defense of self-defense at all.

The Alabama self-defense immunity statute continues:

(d)(2). Prior to the commencement of a trial in a case in which a defense is claimed under this section, the court having jurisdiction over the case, upon motion of the defendant, shall conduct a pretrial hearing to determine whether force, including deadly force, used by the defendant was justified or whether it was unlawful under this section. During any pretrial hearing to determine immunity, the defendant must show by a preponderance of the evidence that he or she is immune from criminal prosecution.

There is a lot packed into this paragraph, as it essentially sets out the entire criminal procedure for requesting self-defense immunity, and for the granting or denial of self-defense immunity.

First, it provides that this immunity provision applies only to acts of claimed self-defense (“a defense is claimed under this section,” that section being the section of the Alabama code dealing with self-defense justification). 

Second, it provides that the immunity procedure is overseen by “the court having jurisdiction over the case,” meaning generally the trial court, and by extension the trial court judge. 

Third, it provides that the request for, and assessment of, self-defense immunity is triggered by a motion made by the defendant to that court, and that this motion is made prior to trial.

Fourth, it provides that upon receipt of a motion for self-defense immunity the trial judge must conduct a pre-trial hearing to determine whether the defendant’s force was lawful or unlawful under Alabama self-defense law. 

The statute doesn’t explicitly say, but this hearing will be adversarial, with the defendant arguing his pro-self-defense position in favor of immunity and the prosecution making the counter-argument against immunity, and the judge making the ultimate call on the issue.

Fifth, it provides that the burden of persuasion on the issue of self-defense is on the defendant, to the standard of a preponderance of the evidence. In other words, the prosecution doesn’t have to disprove self-defense in order to have immunity denied, the defense must prove self-defense by a preponderance (majority) of the evidence in order to have immunity granted. 

Other states use a different allocation of the burden and to different legal standards. Under current Florida law, for example, the burden in a self-defense immunity hearing is on the prosecution to disprove self-defense by clear and convincing evidence—a higher standard than a mere preponderance, but a lower standard that beyond a reasonable doubt.

The Alabama self-defense immunity statute continues:

(d)(3). If, after a pretrial hearing under subdivision (2) [just covered above—AFB], the court concludes that the defendant has proven by a preponderance of the evidence that force, including deadly force, was justified, the court shall enter an order finding the defendant immune from criminal prosecution and dismissing the criminal charges.

This paragraph makes clear that the court’s discretion is limited to determining whether the defendant has met his burden of proving self-defense by a preponderance of the evidence—if so, the court shall (not may) award immunity.  Of course, the line between these two tasks is fuzzy, at best. 

Note also that this statutory language addresses only immunity from criminal prosecution, and says nothing about immunity from civil suit.  However, proving self-defense by a preponderance of the evidence is already the defendant’s burden in a civil suit context, and so if he’s met that burden in this hearing in a criminal context he’s effectively met the identical standard in the civil context, as well. 

The Alabama self-defense immunity statute continues:

(d)(4). If the defendant does not meet his or her burden of proving immunity at the pre-trial hearing, he or she may continue to pursue the defense of elf-defense or defense of another person at trial. Once the issue of self-defense or defense of another has been raised by the defendant, the state continues to bear the burden of proving beyond a reasonable doubt all of the elements of the charged conduct.

Here the statute makes clear that pursuing, but failing to obtain, self-defense immunity pre-trial does not prevent the same defendant from nevertheless raising the legal defense of self-defense at trial.

It also makes clear that at trial the burden of persuasion shifts to the prosecution, which must now disprove self-defense beyond a reasonable doubt.  This effectively means that the defendant must merely maintain a reasonable doubt in the minds of the jury that his use-of-force might have been lawful self-defense. 

It is therefore quite possible for a defendant to be denied immunity pre-trial, where he needs to prove self-defense by a preponderance of the evidence but nevertheless win an acquittal on self-defense at trial, where the prosecution needs to disprove self-defense beyond a reasonable doubt.

And that’s it for Alabama’s self-defense immunity statute (although other sections of §13A-3-23 are worth reading in full).

Many states follow essentially identical, or at least recognizably similar, procedures in applying their own self-defense immunity laws, but few specific the relevant legal procedure as clearly and explicitly as does Alabama by means of statute.


Attorney Andrew F. Branca
Law of Self Defense LLC

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