          Supreme Court of Florida
                                   ____________

                                  No. SC16-1457
                                  ____________

                                KETAN KUMAR,
                                   Petitioner,

                                         vs.

                                NIRAV C. PATEL,
                                   Respondent.

                               [September 28, 2017]

LAWSON, J.

      This case is before the Court for review of the decision of the Second

District Court of Appeal in Patel v. Kumar, 196 So. 3d 468 (Fla. 2d DCA 2016),

which certified direct conflict with the Third District Court of Appeal’s decision in

Professional Roofing & Sales, Inc. v. Flemmings, 138 So. 3d 524 (Fla. 3d DCA

2014), regarding whether an immunity determination pursuant to the Stand Your

Ground law in a criminal proceeding controls in a civil proceeding. We have

jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we

agree with the Third District, which held that the Stand Your Ground law does not

confer civil liability immunity to a criminal defendant based upon an immunity

determination in the criminal case.
                                  BACKGROUND

      Ketan Kumar physically attacked Nirav Patel without provocation at a

Tampa bar. Kumar, 196 So. 3d at 470. In reaction to Kumar’s aggression, Patel

struck Kumar’s face with a cocktail glass, resulting in permanent loss of sight in

Kumar’s left eye. Id. After the State filed an information charging Patel with

felony battery, Patel moved to dismiss the information, citing immunity from

prosecution under the Stand Your Ground law. Id. The circuit court granted the

motion, holding Patel immune under the law. The immunity finding in the

criminal case is final. Id. at 471.

      Kumar then filed a civil complaint in the circuit court against Patel for

battery and negligence, demanding a jury trial. Id. at 470. Patel asserted as an

affirmative defense the immunity found by the circuit court under the Stand Your

Ground law and moved for summary judgment on the same ground. Id. at 471.

The circuit court ultimately denied Patel’s summary judgment motion and ordered

an evidentiary hearing to determine Patel’s immunity. Id. at 471.

      Before this hearing could be held, Patel filed a petition for writ of

prohibition with the Second District, arguing that the circuit court lacked

jurisdiction over him in the civil case based upon the immunity determination in

the criminal case. The Second District granted Patel’s petition, holding that

section 776.032, Florida Statutes (2008), guarantees a single Stand Your Ground


                                         -2-
immunity determination for both criminal and civil actions and certifying direct

conflict with Flemmings. Kumar, 196 So. 3d at 470, 472-73, 475.

                                     ANALYSIS

      Questions of statutory interpretation are reviewed de novo. See Borden v.

E.-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006). We first examine the

statute’s plain meaning, resorting to rules of statutory construction only if the

statute’s language is ambiguous. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).

      The Stand Your Ground law in Florida eliminates the common law duty to

retreat before using force in self-defense:

      A person is justified in using force, except deadly force, against
      another when and to the extent that the person reasonably believes
      that such conduct is necessary to defend himself or herself or another
      against the other’s imminent use of unlawful force.

§ 776.012(1), Fla. Stat. (2008).1 Section 776.032 also provides immunity for a

person who lawfully uses force in self-defense:

             (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 . .
      . . As used in this subsection, the term “criminal prosecution”
      includes arresting, detaining in custody, and charging or prosecuting
      the defendant.

             ....




      1. The substance of the 2008 version of the statute is the same as that of the
current version.

                                         -3-
             (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).

§ 776.032(1), (3), Fla. Stat. (2008) (emphasis added). We have recognized that

“the plain language of section 776.032 [of the Stand Your Ground law] grants

defendants a substantive right to assert immunity from prosecution and to avoid

being subjected to a trial.” Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010). The

Legislature, however, did not suggest procedural mechanisms for invoking and

determining Stand Your Ground immunity. Necessarily, those procedures are

being developed by the judiciary.

      In both criminal and civil proceedings, the determination of whether a

defendant is entitled to Stand Your Ground immunity has been made at pretrial

evidentiary hearings where the defendant must prove that the immunity attaches by

a preponderance of the evidence. Id. at 460 (criminal case); Pages v. Seliman-

Tapia, 134 So. 3d 536, 538 (Fla. 3d DCA 2014) (civil case).2 We recognize that a

pretrial hearing cannot afford the immunity purportedly guaranteed by the plain




      2. A recent amendment to the Stand Your Ground law now places the
burden on the State to prove by clear and convincing evidence that the defendant is
not entitled to immunity from criminal prosecution. § 776.032(4), Fla. Stat.
(2017).

                                       -4-
language of this statute in the criminal context, for the simple reason that there

appears to be no way to do so in most cases.

      For example, the statute purports to grant immunity from arrest, detention,

and prosecution. § 776.032(1), Fla. Stat. But, in many situations, it would be

impossible for law enforcement to secure a judicial immunity determination prior

to arresting an individual suspected of killing or causing bodily harm to another (or

attempting to do so). The law is clear that we expect officers to temporarily detain

a person encountered under circumstances creating a reasonable suspicion of

criminal activity. § 901.151, Fla. Stat. (2017). Then, if there is probable cause to

believe that the person committed a felony, law enforcement is authorized to

immediately effectuate the arrest, under section 901.15, Florida Statutes (2017),

and should clearly do so when there is probable cause to believe that a person has

committed a serious crime of violence against another. Cf. § 907.041(4)(c)5., Fla.

Stat. (2017) (authorizing pretrial detention by court order when a suspect poses a

risk of physical harm to the community). Probable cause to arrest for a crime of

violence would include probable cause to believe that the suspect was not acting in

self-defense; and, suspects will often claim self-defense even when the facts would

not appear to support such a claim. This means that in most potential self-defense

cases, a post-arrest and post-charging immunity determination, made when a

defendant’s counsel requests that determination, will be the best that we can do—


                                         -5-
procedurally—considering the well-established body of law detailing the

responsibilities of law enforcement officers, prosecutors, and judges.

      In the civil context, there are also practical considerations and legal bars that

prevent our current procedures from fully effectuating a civil immunity that

protects a person from being sued at all, as the Stand Your Ground law purports to

do. When a civil case is brought prior to a criminal case, there is currently no

forum or mechanism that a potential civil defendant can use to preemptively secure

an immunity determination. And, even where a criminal immunity determination

is made prior to the filing of a civil suit, that determination cannot bind a potential

civil plaintiff who is not a party to the criminal proceeding, as properly recognized

by the Third District in Flemmings, 138 So. 3d at 527-29, because the law does not

generally sanction binding a person to judicial determinations made in a

proceeding to which he or she was not a party. See Topps v. State, 865 So. 2d

1253, 1255 (Fla. 2004) (explaining that at common law, in order for res judicata

and collateral estoppel to apply, mutuality of parties or their privies must exist);

Stogniew v. McQueen, 656 So. 2d 917, 919-20 (Fla. 1995) (holding, based upon

“concerns over fairness to the litigants,” that Florida will continue to adhere to the

requirement of “mutuality of parties” before a litigant can be bound to a judicial

determination from a prior case); Porter v. Saddlebrook Resorts, Inc., 679 So. 2d

1212, 1214-15 (Fla. 2d DCA 1996) (“Collateral estoppel principles are applicable


                                          -6-
to a subsequent proceeding only if . . . the parties in the two proceedings were

identical . . . .”).

       The Second District concluded that because the Stand Your Ground law

clearly stated that it was granting immunity from being prosecuted or sued at all,

the Legislature must have intended a procedure with one immunity determination

and, therefore, unambiguously modified the doctrine of collateral estoppel to effect

a single immunity determination. We reject this analysis for five reasons.

       First, as already discussed, the statute is silent as to the procedure to be used

for determining immunity, meaning that the “plain language” of the statute does

not speak to this issue at all.

       Second, because the statute purports to grant a substantive immunity that

cannot, in practice, be accomplished by any procedure, we do not believe that the

statute can be read as implying a mandate for any particular procedure.

       Third, “a statute will not be construed to modify the common law unless

such intent is evident or the statute cannot otherwise be given effect.” McGhee v.

Volusia Cty., 679 So. 2d 729, 733 (Fla. 1996); see State v. Egan, 287 So. 2d 1, 6

(Fla. 1973) (“It requires no citation of authority to support the rule that the

common law is not to be changed by doubtful implication.”). The Legislature

knows how to modify the doctrine of collateral estoppel when that is its intent. For

example, sections 772.14 and 775.089(8), Florida Statutes, expressly restrict the

doctrine of mutuality of parties in order to estop defendants convicted of civil theft
                                          -7-
from challenging certain issues adjudicated in criminal actions when sued civilly.

See Stogniew, 656 So. 2d at 920. The Stand Your Ground law, by contrast, does

not purport to modify the mutuality of parties doctrine, nor, for reasons already

explained, does it express a clear intent to do so.

      Fourth, the civil attorney’s fees and costs provision in section 776.032(3)

implies recognition by the Legislature that civil immunity will be determined

separately in a civil proceeding. If this statute had clearly and unambiguously

modified our common law such that the criminal immunity finding would be

binding on potential civil litigants, it would be equally clear and unambiguous that

anyone filing a suit for civil damages based upon the same incident for which

Stand Your Ground immunity had been found in a criminal case could be subject

to an attorney’s fee sanction under section 57.105, Florida Statutes—rendering the

fees and costs provision somewhat redundant in most cases (since criminal cases

almost always proceed first and faster than civil cases). Additionally, the

subsection (3) fees and costs provision seems to contemplate a recovery for

litigating the immunity question in a more traditional fashion, in most civil cases

(as opposed to having almost all civil cases subject to dismissal at the outset based

upon a prior binding finding).3


       3. The Second District read the language in subsection (3)—providing for
civil fees and costs “if the court finds that the defendant is immune from
prosecution as provided in subsection (1)”—as referring to the criminal immunity
finding, based upon the reference to subsection (1). § 776.032(3), Fla. Stat. We
                                         -8-
      Finally, the 2017 amendment to the Stand Your Ground law creating

different burdens of proof for criminal and civil immunity not only implies an

understanding that separate immunity determinations will be made but also

forecloses any argument, going forward, that the criminal “determination” could

ever be binding in the civil proceeding. Even in a case where the State could not

prove by clear and convincing evidence that the defendant was not entitled to

immunity, the criminal defendant may not be able to prove by a preponderance of

the evidence that he is entitled to immunity in the civil case.

                                  CONCLUSION

      For these reasons, we approve the Third District’s decision in Flemmings

and hold that the Stand Your Ground law does not confer civil liability immunity

to a criminal defendant who is determined to be immune from prosecution in the

criminal case, and quash the Second District’s decision in Kumar.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and
POLSTON, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.



believe the language to be more reasonably understood as referring to the civil
immunity finding that will be made in the civil case because “the court” seems to
be a reference to the civil court and its determination (as conveyed by use of the
present tense), and because subsection (1) refers to both civil and criminal
immunity.
                                         -9-
Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

      Second District - Case No. 2D14-4678

      (Hillsborough County)

Michael P. Maddux of Michael P. Maddux, P.A.; and Thomas A. Burns of Burns,
P.A., Tampa, Florida,

      for Petitioner

Stephen L. Romine of Romine Law, P.A., Clearwater, Florida; and Kimberley M.
Kohn of Goudie & Kohn, P.A., Tampa, Florida,

      for Respondent




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