APPEAL FROM RUSSELL CIRCUIT COURT HONORABLE VERNON MINIARD, JUDGE ACTION NO. 12-CR-00074
The opinion of the court was delivered by: Thompson, Judge:
RENDERED: FEBRUARY 15, 2013; 10:00 A.M.
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND THOMPSON, JUDGES.
This case presents an issue of first impression in this Commonwealth, specifically, whether an order denying immunity from prosecution pursuant to Kentucky Revised Statute (KRS) 503.085 is immediately appealable. The Court entered an order directing appellant to show cause why this appeal should not be dismissed as having been improperly appealed from an interlocutory order. Based on the Supreme Court's recognition that immunity affords protection from litigation in civil cases and an order denying immunity is immediately appealable, we hold that appellant has demonstrated sufficient cause to prevent the dismissal of this appeal.
We begin with the broad nature of Kentucky's version of justifiable self-defense contained in KRS 503.085. The language in KRS 503.085 is unambiguous. It directs that citizens of this Commonwealth may, under certain circumstances, use force without fear of arrest, criminal prosecution and civil liability. Subsection (1) states:
A person who uses force as permitted in KRS
503.050, 503.055, 503.070, and 503.080 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 the force was used is a peace officer, as defined in KRS 446.010, 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 peace officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
Although no reported case has directly addressed the arguments presented, we find guidance in established precedent.
In the civil context, this Commonwealth has recognized that an order denying absolute immunity is an exception to the definition of an appealable judgment contained in Kentucky Rules of Civil Procedure (CR) 54.01. An interlocutory appeal is permissible because to hold otherwise would defeat the purpose of immunity. Relying on precedent established by the United States Supreme Court, our Supreme Court explained the logic for the rule in Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), and emphasized that immunity is an entitlement that frees a defendant from the financial and emotional costs of litigation. Its holding, written with reason and precision, was as follows:
Obviously such an entitlement cannot be vindicated following a final judgment for by then the party claiming immunity has already borne the costs and burdens of defending the action. For this reason, the United States Supreme Court has recognized in immunity cases an exception to the federal final judgment rule codified at 28 U.S.C. § 1291. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court reiterated its position that "the denial of a substantial claim of absolute immunity is an order appealable before final judgment." Id. at 525, 105 S.Ct. 2806, citing Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). We find the Supreme Court's reasoning persuasive, and thus agree with the Court of Appeals that an order denying a substantial claim of absolute immunity is immediately appealable even in the absence of a final judgment.
Id. at 886-87. The same logic is applicable to immunity from prosecution under KRS 503.085.
In Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009), the Court found the purpose of the statute to be no different than other types of absolute immunity.
By declaring that one who is justified in using force "is immune from criminal prosecution," and by defining "criminal prosecution" to include "arresting, detaining in custody, and charging or prosecuting the defendant," the General Assembly has made unmistakably clear its intent to create a true immunity, not simply a defense to criminal charges. This aspect of the new law is meant to provide not merely a defense against liability, but protection against the burdens of prosecution and trial as well.
Id. at 753. The Court observed that immunity is a bar from prosecution "designed to relieve a defendant from the burdens of litigation" and, therefore, "a defendant should be able to invoke KRS 503.085(1) at the earliest stage of the proceeding." Id. at 755.
It is obvious that if a defendant cannot immediately appeal the trial court's decision and must await the outcome of a criminal trial, nothing is gained by invoking KRS 503.085 at the "earliest stage of the proceeding." After trial and conviction, the burdens have been shouldered and the harm irreparable.
We cannot ignore the futility in an appeal of the denial of KRS 503.085 immunity after a defendant's conviction. As explained by the author of this opinion in his dissent in Lemons v. Commonwealth, 2012 WL 2360131 (Ky. App. 2012)(2010-CA-001942-MR), motion for discretionary review pending, following a trial and conviction, any argument that immunity was improperly denied would be subject to the harmless error rule, and the defendant required to overcome the strong preference in the law for deferring to a jury's verdict. It is simply nonsensical for the General Assembly to have clearly established immunity from prosecution that is to be determined by the court, but leave a defendant denied immunity without an opportunity for meaningful judicial review.
We end our discussion with a quote by the District of Columbia Court when it considered whether an immediate appeal was available from a denial of immunity from prosecution under a statutory provision. In Stein v. U.S., 532 A.2d 641, 644 (D.C. 1987), the Court stated:
The question of whether Stein is immune is "effectively unreviewable" on appeal from a judgment of conviction because, if he is immune, he has a statutory right not to be tried at all. His asserted right to [immunity] is forever lost if not resolved in [his] favor before jeopardy has attached. (internal citations and quotations omitted).
In this case, the same reasoning is persuasive. If Farmer is entitled to immunity under KRS 503.085, he cannot be tried. He is entitled to immediate ...