The Orlando Sentinel reported recently on an interesting self-defense law matter currently being taken up by the Florida Supreme Court.

As seems inevitable, they have of course incorrectly categorized the case as centering on the state’s “Stand-Your-Ground” law.

In fact, the case centers on Florida’s self-defense immunity statute, and not on Stand Your Ground.  (For those interested in understanding how utterly different these are from each other, take a look at my tutorial video: LOSD University Video Tutorial 003 SD Immunity and SD “Insurance”.)

Florida’s self-defense immunity statute is §776.032. Immunity from criminal prosecution and civil action for justifiable use of force.  It provides in relevant part:

(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.

Statutes, of course, merely represent the stated intent of the Legislature, which does not bear the burden of actually applying them.  That task falls to the courts.  As if often the case, in the instance of §776.032 the Legislature declined (some would say “failed”) to specify the precise procedures that were to be applied in determining whether a particular individual qualified for self-defense immunity.  This naturally led to months of fun for Florida’s trial, appellate, and Supreme Court judges.

Among the first issues that had to be settled was simply the standard of evidence to be applied to self-defense immunity, in other words how much evidence in support of self-defense was required before immunity could attach to a defendant.

Must the preponderance of the evidence (50%+) be against a claim of self-defense in order for immunity to be denied (or, conversely, a preponderance of the evidence be supporting a claim of self-defense in order for immunity to be granted)?

Alternatively, was it instead sufficient to deny immunity if there merely existed any disputed issue of material fact on the matter of self-defense, a very low threshold for denial? Under this standard, essentially anything less than 100% of the evidence supporting self-defense would result in denial of immunity.

Dueling Appellate Courts: Peterson (1st DCA) versus Dennis (4th DCA)

There quickly emerged a split on this question among Florida’s appellate courts.

In April 2008 in the case of Peterson v. State, 983 So.2d 27 (FL Ct. App. 2008) the 1st District Court of Appeals (DCA) chose the first of those two options, ruling favorably for the defense that the proper standard of evidence for self-defense immunity was by a preponderance of the evidence. They also ruled that the issue of immunity could be raised pre-trial, and need not be delayed until the trial itself had begun.

[W]e hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. (emphasis added)

Just 11 months later, in March 2009, in the case of Dennis v. State, 17 So.3d 305 (FL Ct. App. 2009) the 4th DCA chose the alternative options, ruling unfavorably to the defense that immunity was appropriately denied if there existed any disputed issue of material fact on the matter of self-defense.

The Dennis court did, however, certify that it’s decision was in conflict with Peterson, thus putting the matter on the fast track to the Florida Supreme Court.

Settling the Standard of Evidence Question on Immunity: Dennis (FL Supreme Court)

The Florida Supreme Court took up the matter in Dennis v. State, 51 So.3d 456 (FL Supreme Court 2010), which I will henceforth refer to as Dennis (please do not confuse with the identically named lower court ruling).

In brief, the court choose to side with the Peterson appellate court’s approach, setting the standard of evidence at “by a preponderance of the evidence.”  Thus, so long as the greater weight of the evidence supported a claim of self-defense, immunity would attach even if there still remained some disputed material fact in the case.

In summary, we conclude that the procedure set out by the First District in Peterson best effectuates the intent of the Legislature and that the trial court erred in denying Dennis an evidentiary hearing on his claim of statutory immunity.

So, That Settles That, Right? Not So Fast: Burden of Proof

The Florida Supreme Court’s ruling in Dennis certainly and decisively settled the matter of how much evidence was required to establish self-defense immunity–specifically, the appropriate standard of evidence is by a preponderance of the evidence.

But in determining whether any particular issue in deemed proven as a matter of law, the standard of evidence is only one half of the question. Equally as important is which side bears the burden of proof on that issue.  That is, who loses if the standard of evidence is not met?

All of us are familiar with the notion that “the State bears the burden of proving a defendant guilty beyond a reasonable doubt,” if only from our unavoidable exposure to police and court room procedurals on television and in the movies.  In fact, that phrase combines both the standard of evidence (in that case, beyond a reasonable doubt) and the burden of proof (in that case, the State bears the burden).

On other facets of a case, however, the standard of proof can vary by enormous degrees, and the burden may be assigned to either the State or the defense.

As we’ve seen the case of self-defense immunity, the standard of evidence in Florida was clearly decided by the Supreme Court in Dennis as being by a preponderance of the evidence.  And it certainly seemed as if the burden of proof was also decided in that same decision, when it quoted favorably from Peterson:

[W]e hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. (emphasis added)

Surely that wording, “whether the defendant has shown” places the burden of proof squarely upon, well, the defendant, no?

Thankfully, the answer is no: if legal matters were so straightforward, I’d still be working as a diesel mechanic.

And that brings us to the case currently in the news, and before the Florida Supreme Court, Bretherick v. Florida, No. SC13-2312.

The Hazards of Bringing a Gun to a Road Rage Incident

In the interest of saving myself work, I’ll quote the relevant underlying facts as determined by the trial court and recited in the 5th DCA court’s decision that immediately preceded the case landing with the Florida Supreme Court, Bretherick v. State, 135 So. 3d 337 (FL Ct. App. 2013):

On December 29, 2011, the Bretherick family was on vacation in Central Florida, driving toward Downtown Disney, on a heavily travelled, six-lane divided road in Osceola County. Ronald Bretherick, the father, was driving in the middle lane westbound when, in his rearview mirror, he saw a blue truck rapidly approaching them. The truck almost side-swiped them as it passed in the right lane. As the truck passed the Brethericks, the driver, Derek Dunning, “stared at them in a threatening manner,” but made no statements or gestures.

Dunning’s truck cut in front of the Bretherick vehicle in the middle lane, slammed on the brakes, and came to a complete stop. There was no traffic or other impediment that required this action. Ronald Bretherick also stopped his vehicle, one to two car lengths behind Dunning’s truck. Dunning got out of his truck and walked toward the Bretherick vehicle. He was unarmed. Without exiting, Ronald Bretherick held up a holstered handgun, and Dunning returned to his truck without uttering a word.

After Dunning got back into his truck, the Defendant, Ronald’s adult son, got out of the rear passenger’s seat. He approached the driver’s side of Dunning’s truck within a few feet of the driver, while pointing the handgun at Dunning. The Defendant told Dunning to move his truck or he would be shot. Dunning misunderstood, and believed that the Defendant told him that if he moved, he would be shot. This slight but critical misunderstanding explains everyone’s subsequent actions.

The Defendant returned to his own vehicle and took up various positions, continuing to point the gun at Dunning. The Brethericks, Dunning, and several passersby all called 911. The Defendant’s mother and sister exited their vehicle and took refuge in a ditch on the north side of the road. The Defendant told his family that Dunning said he had a gun, but no one saw Dunning with a weapon, and the trial court found this not to be credible. At some point, Dunning’s truck rolled back twelve to eighteen inches toward the Brethericks’ vehicle. The police arrived and diffused the volatile encounter.

As a result of this incident, the Defendant was charged with one count of aggravated assault with a firearm in violation of sections 784.021(1)(a) and 775.087(2), Florida Statutes (2011). On April 3, 2012, the Defendant filed a motion to dismiss, alleging immunity from prosecution, pursuant to section 776.032, Florida Statutes (2011). After an evidentiary hearing, the trial court denied the motion to dismiss, and the Defendant sought review.

As an aside, I note that §775.087. Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence,  is Florida’s infamous “10-20-Life” statute, and if Brethericks were to be convicted on the charge of aggravated assault with a firearm, even if as here no shots were fired, he would face a mandatory minimum of 10 years imprisonment.

At a pre-trial hearing the defendant, Jared Bretherick, had petitioned for self-defense immunity under §776.032.  The trial court denied his petition, and Bretherick appealed this denial to the 5th DCA.

First Stop: The 5th District Court of Appeals

The issues placed before the 5th DCA and decided in Bretherick v. State, 135 So. 3d 337 (FL Ct. App. 2013) were three-fold:

The issues in this case are, first, whether the Defendant has the right of review before trial of the denial of his motion by petition for writ of prohibition; second, whether the burden of proof at the evidentiary hearing on the motion to dismiss was properly placed on the Defendant to prove entitlement to immunity; and finally, assuming the Defendant bears the burden of production and persuasion, whether that burden was met in this case.

The 5th DCA decided the first issue in a single paragraph, affirming that Bretherick had the right of review before trial of his denied motion for immunity. (The entire 5th DCA ruling is embedded at the bottom of this post.)

The appellate court then took up the second issue, that of assigning the burden of proof.  Bretherick himself acknowledged that the Florida Supreme Court decision in Dennis placed that burden upon the defendant.  Nevertheless, Bretherick argued that this specific portion of the Dennis ruling was mistaken:

Nevertheless, the Defendant argues that this ruling fails to appropriately apply the plain meaning of the statute. “Placing the burden on a person who acted in self defense, after they have been charged makes the immunity granted largely illusory, and fails to give effect to each word in the statute.”

The appellate court, however, declined Bretherick’s argument on this issue:

We are bound by Dennis and, accordingly, we reject this argument and find that the trial court properly placed the burden of proof on the Defendant.

On the third issue before it, whether the burden was met (more accurately, whether the standard of evidence of by a preponderance of the evidence was met), the 5th DCA agreed with the trial court that in fact the preponderance of the evidence weighed against, not for, self-defense, and thus the denial of self-defense immunity by the trial court was the correct decision:

A person is justified in using deadly force when he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm to him or herself or another, or to prevent the imminent commission of a forcible felony. [ . . . ]

The trial court correctly found that [the purported attacker’s] actions did not rise to the level of [a forcible felony], and therefore, the Defendant could not justify his use of force on this basis. No one saw Dunning with a gun. Dunning retreated to his vehicle when Ronald Bretherick held up a holstered weapon. The trial court also properly determined that there was no longer an imminent threat and that the Defendant’s subjective fear at that point was objectively unreasonable.

[ . . . ]

It was not reasonable for the Defendant to believe that it was necessary for him to approach Dunning’s truck with a gun drawn in order to defend himself or his family.

Having thus ruled, however, the 5th DCA acknowledged that while the Florida Supreme Court in Dennis appeared to have settled the issue of burden of proof, that issue was not in fact central to that case.  There was at least a possibility, then, that the Supreme Court had not given that particular issue as much careful consideration as they would have if the issue had been central to the case.

In contrast, in the Bretherick’s case before the 5th DCA, the issue of burden of proof was clearly central. Accordingly, the appellate court certified the question, thus placing it on the fast track to the Florida Supreme Court:

ONCE THE DEFENSE SATISFIES THE INITIAL BURDEN OF RAISING THE ISSUE, DOES THE STATE HAVE THE BURDEN OF DISPROVING A DEFENDANT’S ENTITLEMENT TO SELF-DEFENSE IMMUNITY AT A PRETRIAL HEARING AS IT DOES AT TRIAL?

The Florida Supreme Court did, in fact, agree to address the question certified, and arguments have been underway before the court the last several months.  We touch upon those in a moment.

Before we do so, however, you will recall from the facts cited above that prior to the events just described Jared Bretherick’s father had displayed to the purported attacker a holstered pistol.  The father was not charged with any crime for this action, indicating that the authorities felt that the father’s gesture was an appropriate response to the purported attacker’s aggressive conduct (forcing the Bretheridge car to a stop on a major highway, and exiting his own vehicle to approach theirs).

In contrast, it was Jared Bretherick’s much escalated conduct in exiting the family vehicle, walking up to the purported attacker’s car and pointing a gun at him that resulted in his criminal charges and the denial of self-defense immunity.

These facts, then, are an excellent case study example of how self-defense is lost when an otherwise lawful defender fails on the third element of the law of self-defense: Proportionality.

The National Rifle Association Chimes in With Amicus Curiae Brief

Perhaps not surprisingly, the Bretheridge case has attracted the attention of gun rights and self-defense advocates, including of course the Big Dog on such issues, the National Rifle Association, as well as a prominent local Florida gun rights group, Florida Carry. (In the interests of full disclosure, the attorney representing Florida Carry, Eric Friday, is personally known to me. I’m also a long-time Life Member of the NRA, have spoken on legal issues at the NRA Annual Meeting, and am an NRA certified instructor in rifle, pistol, and personal protection.)

These groups filed an amicus curiae brief with the Florida Supreme Court in June of this year, arguing in favor of the proposition that the burden of proof on self-defense immunity should be placed upon the State, and not upon the defendant. (The full-length copy of this amicus curiae brief is embedded at the bottom of this post.)

The NRA’s framing of the issue and their position to it is state succinctly in the brief:

This case is about whether a person who raises a facially valid claim of self- defense should have the burden of proving immunity from prosecution at a pretrial hearing, or whether the state should have to show that unlawful force was used, as it would have to prove at trial.

The statutory provision to be implemented specifies that a person lawfully using defensive force “is immune from criminal prosecution.” § 776.032(1), Fla. Stat. That language, read in the context of the statute as a whole and its accompanying “whereas clauses,” was chosen by the Legislature to express a strong public policy in favor of self-defense by law-abiding people in Florida. Forcing crime victims to prove their entitlement to immunity is inconsistent with that policy.

Recent and well-founded opinions interpreting virtually identical language in other states further support placing the burden of proof on the state to overcome claims of immunity based on self-defense. While some states’ courts have taken a contrary view—putting the burden of proof on victims—those decisions have been based on factors that are not present in Florida, and in some cases have been based on inapt analogies even under those states’ own laws.

In light of the language and intent of the statute, and the weight of opinion in other states, this Court should find that the burden of proof at a pretrial hearing is on the state.

It’s a concisely-written brief in relatively plain language, and is therefore easily understandable even by non-lawyers.  I encourage anyone interested to read it in its entirety.

The State’s responding brief, filed August of this year, naturally argues that the burden of proof on the issue of self-defense immunity should be placed upon the defendant. (This brief is also embedded at the bottom of this post.)

The trial court applied the correct burden of proof in evaluating the Petitioner’s pretrial claim of immunity from prosecution under the Stand Your Ground law, following binding precedent from this Court and all the district courts. Petitioner has offered no basis for this Court to revisit that precedent, which has proven to be workable in the lower courts and based on sound legal reasoning consistent with legislative intent and decisions of other states and in other contexts. The certified question should be answered in the negative.

As an aside, the State’s brief has a rather more detailed accounting of the facts of the road-rage encounter, if that’s of interest to the reader. Not so attractive is the fact that the State’s brief is twice as long as that of the NRA, and written in a much more stilted, legalese style.  Regardless, it is presented below for your consideration.

Waiting On the Florida Supreme Court

And that’s where things currently stand, with the matter thus framed before the Florida Supreme Court.

I should note that although I certainly would agree that this is a legal issue worth of consideration and decision by the Florida Supreme Court, it’s difficult to see how Jared Bretherick will benefit regardless of the outcome on the issue of who bears the burden of proof.  While he may–may–be able to sustain a reasonable doubt as to whether his conduct was lawful self-defense at trial, on the facts before us I simply do not see any reasonable argument to be made that it was more likely than not that his conduct was lawful self-defense.

As always, if you’re going to be prepared to use a firearm in self-defense, know the law.

Now, for your reading pleasure, the promised briefs.

Here is the NRA’s amicus curiae brief in support of placing the burden of proof on self-defense immunity upon the State:

Here is the State’s responding brief in support of keeping the burden of proof on self-defense immunity upon the defendant:

UPDATE: I was just directed to yet another amicus curiae brief, this one favoring the placing of the burden of proof on the State and filed by Florida Carry attorney Eric Friday, who had also signed onto the NRA brief:

–-Andrew, @LawSelfDefense


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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.