The First District Court of Appeal of Florida has decided the case of Finkelstein v. State, 2015 WL 798162. In Finkelstein, the defendant was charged with battery on a law enforcement officer with a deadly weapon. The defendant moved to dismiss the charges, claiming statutory immunity pursuant to §776.032, Fla. Stat. (2013), arguing that the deadly force he used was justifiable to defend himself. This statute, commonly referred to as the "stand your ground" defense provides:
[a] person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened 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 or threatening to use force knew or reasonably should have known that the person was a law enforcement officer.
Id. (emphasis added).
On appeal, the defendant argued that the officer he shot in self defense was not performing his official duties and had not identified himself as a police officer. The court found that the evidence did not support the defendant's argument, namely that at time of the offense he was unaware the victim was a law enforcement officer. Thus, the court held that §776.032, Fla. Stat., barred the defendant's claim of statutory immunity. Specifically, the court held that statutory immunity is not available if a person against whom force is used is a law enforcement officer who is acting in performance of his official duties and who has identified himself or herself as a law enforcement officer in accordance with any applicable law.
Finkelstein and other cases decided under the stand your ground statute make clear that the defendant cannot merely claim he was unaware that his or her victim was not a police officer in order to prevail using this defense. Once the prosecution has met its initial burden of establishing that the officer was acting in the course of an official duty and was properly identified as such, the defendant must make some affirmative showing that the officer was not acting in an official capacity or that the officer somehow failed to properly identify him or herself. Certain factors will obviously be persuasive to a jury, namely, if the officer was wearing a uniform or some other official insignia, the time and place of the encounter, and whether the initial encounter arose from a traffic or other stop by law enforcement. Additionally, testimony from bystanders to the altercation might also be used to establish the officer failed to make proper identification. For this reason, it is important that these cases are immediately investigated to preserve evidence critical to this defense.