Image 01 Image 03

Two Years after Zimmerman Acquittal, Stand-Your-Ground Still in News

Two Years after Zimmerman Acquittal, Stand-Your-Ground Still in News

FL Supreme Court decision placed self-defense immunity burden on defendant

It’s hard to believe, but this week marks the two-year anniversary of the acquittal of George Zimmerman, on trial for second degree murder and other charges in the killing of Trayvon Martin. You can read more about it at Unexpected thanks to Legal Insurrection on 2nd Anniversary of Zimmerman Acquittal.

It is timely, then, that just last week the Florida Supreme Court handed down a major decision on the state’s self-defense immunity law, § 776.032 Immunity from criminal prosecution and civil action for justifiable use of force, in the case of Bretherick v. State, 2015 Fla. LEXIS 1470 (FL Supreme Court 2015).

Florida’s self-defense immunity statute was passed by the legislature and signed by the Governor without containing any indication as to how it should be implemented by the courts; before Bretherick, it was not clear which party was meant to bear the burden of proof with regards to requests for self-defense immunity. Now, because of this ruling, we know that it is the defendant who bears the burden of proof (by a preponderance of the evidence) at the pretrial evidentiary hearing.

Indeed, Bretherick is not the first time the Florida Supreme Court has had to tackle self-defense immunity procedures, with their last major effort taking place five years ago in the decision of Dennis v. State, 51 So.3d 456 (FL Supreme Court 2010).

Dennis dealt with the standard by which a pre-trial self-defense immunity claim was to be heard.  The State in that case argued that a pre-trial claim for self-defense immunity should be rejected if there was any material fact in dispute–which, in a self-defense case, there almost always is.

In effect the State’s position would have limited a claim of self-defense immunity to being argued at trial itself, rather than at a pre-trial hearing.  Given that much of the value of self-defense immunity is the ability to avoid the “process-as-punishment” dilemma of a criminal trial int the first place, the State’s standard would have eviscerated §776.032.

Ultimately, however, the Supreme Court decided that instead of the State’s approach the defendant should be entitled to have the trial court conduct a pre-trial hearing to evaluate any material disputes of fact and come to its own conclusion of whether a grant of self-defense immunity was warranted.

What the Dennis court failed to do (or did only implictly) was to define the standards and burdens of proof.  In other words, which party (the State or the defendant) was required to bear the burden of proof and to what legal standard (e.g., by a preponderance of the evidence, beyond a reasonable doubt, etc.)?

That was the issue taken up by the court in Bretherick.

(Before I go on, full disclosure: Counsel for the defendant in Bretherick included Attorney Eric Friday, a very highly qualified legal counsel and a vocal advocate for Second Amendment rights, particularly through the group Florida Carry.  Although I’ve never met Attorney Friday in person, we have occasionally communicated on self-defense and Second Amendment matters.)

The relevant facts of the case are quoted by the Florida Supreme Court directly from the lower appellate court’s decision, and so we may as well do the same here:

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.

Defendant Bretherick sought a grant of self-defense immunity prior to trial, and this was rejected by the trial court.  As part of that denial the trial court set forth the following burden of proof and standard of evidence for pre-trial self-defense immunity purposes:

The Defendant must prove by a preponderance of the evidence that the threat was imminent and his fear was reasonable.

Defendant Bretherick disagreed with this burden of proof and standard of evidence, and argued that instead the burden at a pre-trial self-defense immunity hearing should have been placed on the State to disprove self-defense, and beyond a reasonable doubt.  This would be parallel to the burden and standard of evidence for self-defense at trial, where the State bears the burden of disproving self-defense beyond a reasonable doubt.

Upon this denial of self-defense immunity Bretherick filed an appeal of that decision with the Fifth District Court of Appeal. The 5th DCA agreed that the trial court had “properly placed the burden of proof” on Bretherick, affirming the denial of self-defense immunity in this case.

They also made the following observation, however, that “[t]he issue of who bears the burden of proof may well be significant where the case is an extremely close one, or where only limited evidence is presented for the trial court’s consideration.”

Indeed, one of the 5th DCA judges, Judge Schumann, concurred separately that while she felt compelled to concur in the decision on the basis of Dennis, it would be her preference that the burden remain with the State on the issue of self-defense immunity, both pre-trial and at trial on the issue of self-

The 5th DCA then “certified the question” for the Florida Supreme Court, which in Florida serves to fast-track the question to the highest court for resolution.

The Florida Supreme Court resolved the issue last week in Bretherick v. State, 2015 Fla. LEXIS 1470 (FL Supreme Court 2015), ruling that:

We now make explicit what was implicit in Dennis-the defendant bears the burden of proof by a preponderance of the evidence at the pretrial evidentiary hearing. This is the conclusion reached by every Florida appellate court to consider this issue both before and after Dennis, and it is a conclusion fully consistent with the legislative intent to provide immunity to a limited class of defendants who can satisfy the statutory requirements.

With all due respect to defendant’s counsel, this feels to me to be the most reasonable decision.

Naturally, if all claims for self-defense immunity were by people who genuinely acted in lawful self-defense, it would be most appropriate to place upon them only the most minimum burden, and to require the State to carry the same very heavy burden here at pre-trial as they will later be required to do at trial.

The truth, however, is that a great many claims of self-defense–I would argue the overwhelming majority–are not in fact made by “good guys” who acted in genuine or even good faith self-defense.  Most every defendant charged with a crime involving an unlawful use of force can potentially claim self-defense as justification for that use of force, and many of them do.

Compelling the State to disprove beyond a reasonable doubt every one of these almost certainly fraudulent claims of self-defense would result in almost all of these allegedly violent offenders being released before they ever got to trial.  Anyone who imagines for a second that defense counsel would not take vigorous advantage of such an opportunity simply does not know many defense counsel.  Indeed, they would be remiss in their duty to their client if they did not do so.

By placing the burden of proof for self-defense immunity on the defendant and by a preponderance of the evidence the Florida Supreme Court has set a playing field in which most genuinely legitimate cases of self-defense should have little difficulty in qualifying for self-defense immunity, and thus avoiding the “process-as-punishment” dilemma.

On the other extreme, the clearly bad claims of self-defense would fail immunity, and proceed to trial on the merits.

Of course, there will be some acts of genuine self-defense that fail to meet the preponderance of the evidence standard, and must also proceed to trial for final adjudication.

It does not strike me as a terrible wrong, however, that the close cases of self-defense are worthy of the closer inspection associated with a jury trial, especially in cases involving the use of deadly force or even an actual loss of life.  This seems especially so when the associated social cost of the alternative policy would result in the release of a great many actual violent offenders, now immunized for their act of violence, back onto the public.

So, that’s that for Bretherick.

P.S. I feel obliged to point out that although even the Florida Supreme Court has taken to calling self-defense immunity hearings “Stand-Your-Ground hearings,” despite the fact that self-defense immunity and “Stand-Your-Ground” are two entirely distinct legal concepts.  The fact that they were both adopted by statute at the same time, however, has made it commonplace to use the term “Stand-Your-Ground” to refer to both.  This is intellectually sloppy, but apparently a done deal, at least in Florida.  Oofah.

–-Andrew, @LawSelfDefense

Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
“Law of Self Defense, 2nd Ed.” / Seminars / Twitter / Facebook / Youtube channel


Donations tax deductible
to the full extent allowed by law.


In my view, self-defense is an affirmative defense, where the accused admits acting in a fashion that would otherwise constitute guilt for a crime, but claims the act was justifiable. With that in mind, a pretrial hearing on immunity from prosecution would logically require the defendant to bear the burden of proof, to show that the defense is viable.

Assuming the defendant does not seek immunity, or loses on the issue, the State would have the burden of proving guilt beyond a reasonable doubt at trial.

Procedurally, this makes sense to me.

    Just FYI, great caution must be taken in using the term “affirmative defense.” Although it may well have had a single consensus meaning across all states many decades ago, I can tell you that today the term “affirmative defense” often means quite different things with quite different legal burdens and implications in different states, often arriving at opposite outcomes.

    Within the context of a single jurisdiction the use of “affirmative defense” is probably not problematic, but speaking more broadly it becomes essential to ensure that everyone in the conversation is using the term to mean the same thing. Often, they will not be doing so.

    To give just one illustration, traditionally both the burden of production AND the burden of persuasion for an affirmative defenses were placed on the defense.

    Today, in the case of many affirmative defenses, such as alibi, that remains true.

    In the specific case of the “affirmative defense” of self-defense, however, that is no longer true.

    Except in Ohio.

    Many more examples are at hand, but back to work for me. 🙂

    –Andrew, @LawSelfDefense

Thank you AB for another excellent ,well written and most importantly, easily understood legal lesson. Anybody who has studied your LOSD book would recognize that the younger Bretherwick lost his innocence so to speak when he left the back seat of the family car to confront Dunning who had returned to his truck. In my mind he is an immature adult who felt the need to put his two cents into a conversation that his more mature father had already put the period to the end of the confrontation. With or without a firearm his actions could only cause a continuance and perhaps an escalation of the situation that appeared to be over and done with.

I would like to mention that on Florida’s I-4 that scenario happens hundreds of times a day. Florida has no keep right to travel lane law. On a four, five, or six lane road it is very frustrating to get in front of a driver who insists on doing the speed limit. The speed limit is routinely exceeded by five to ten miles an hour and regular commuters know this and travel safely according to conditions. Most states have said the left lane is for passing and the other lanes are for regular traffic flow. Not gonna happen in Florida.

    Immolate in reply to Rick2guns. | July 14, 2015 at 12:48 pm

    I am a Central Floridian that lives within hearing distance of the traffic from I4 (Deltona) and a confirmed lead-foot. I am regularly infuriated by my fellow drivers, most of whom I assume are “Yankees-from-up-North”. Also a 2nd Amendment believer. My philosophy on interstate behavior is “drive like everyone around you is well-armed”. That thought alone reduces the road rage by a couple of orders of magnitude.

    There are a lot of guns in Florida. I would prefer not to be the motivation for one of them being deployed, for legitimate reasons or otherwise.

    Skookum in reply to Rick2guns. | July 14, 2015 at 11:45 pm

    “Anybody who has studied your LOSD book would recognize that the younger Bretherwick lost his innocence so to speak when he left the back seat of the family car to confront Dunning who had returned to his truck.”

    I had to reread the article to see it was the son who was the defendant. I thought it was Ronald on my first read, because the son is not named. I missed the now obvious sentence saying the son was on trial.

    Interestingly, Ronald brandishing a holstered handgun was apparently not a problem under the circumstances. In my opinion the action seems appropriate to the threat the truck driver posed at the time.

“This is intellectually sloppy, but apparently a done deal, at least in Florida. Oofah.”

Indeed. You expect the supremes of any state to be the MOST intellectually rigorous and precise in the words they set down, knowing that all inferior courts will be obliged (to at least a fair extent) to follow their lead.

But nooooooo…

    Skookum in reply to Ragspierre. | July 14, 2015 at 11:33 pm

    Remember, we’re talking about the Floriduh Supreme Kangaroo Court.

    Estragon in reply to Ragspierre. | July 15, 2015 at 2:26 am

    As long as judges are appointed by legislatures or executives or elected, the position is a political one.

    Politics by its very nature works against choosing the best and the brightest.

The appellate court wrote:

The police arrived and diffused the volatile encounter.

Obviously, the correct word there should have been defused: to make (something) less serious, difficult, or tense. –The Grammar Police

“By placing the burden of proof for self-defense immunity on the defendant and by a preponderance of the evidence the Florida Supreme Court has set a playing field in which most genuinely legitimate cases of self-defense should have little difficulty in qualifying for self-defense immunity, and thus avoiding the “process-as-punishment” dilemma.”

While agree with your logic, I feel compelled to ask, Why didn’t the law work for zimmerman?