Bretherick v. Florida – Stand Your Ground Immunity is Defense Burden

The Florida Supreme Court has once again taken on the issue of the controversial “Stand Your Ground Law,” ruling explicitly that the burden is on the defendant to prove he or she is entitled to immunity under this statute.
In Bretherick v. Florida, defendant had argued the onus was on the prosecution to show why such immunity did not apply. Amicus curiae briefs were filed with the court by the National Rifle Association of America and Florida Carry, Inc. in support of defendant.

The district court denied defense motion to dismiss on these grounds. Florida’s Fifth District Court of Appeal then affirmed that by finding it was the defendant who had a burden to prove, by a preponderance of the evidence, at the pretrial evidentiary hearing, that he or she is entitled to immunity. However, the 5th DCA then certified the question to the state supreme court for review as a matter of great public importance. Justices with the Florida Supreme Court agreed with the 5th District panel.

Therefore, it’s not enough for the defense to simply raise the issue of Stand Your Ground and then thrust the burden of proof onto the prosecutors to show why it doesn’t apply. Rather, the defense is responsible for proving why it does. This has also been the stance of every other state with similar immunity laws.

For those unfamiliar, “Stand Your Ground” authorizes a person to protect and defend one’s own life and well-being against a threat or perceived threat, and that there is no duty for that person to retreat from any place he or she has a lawful right to be. The law further states a person in this situation may use force – up to and including lethal force – if he or she has a reasonable belief that there is an imminent threat of serious bodily harm or death.

Broward criminal defense lawyers recognize the problem is the interpretation of the term “reasonable.” Some actions that may in hindsight appear unreasonable may have in the moment seemed justified. Prosecutors often seize on this when filing charges.

In this case, defendant was arrested for aggravated assault with a firearm, per F.S. 784.021(1)(a). He was with his family visiting Florida on vacation, driving toward Downtown Disney on a busy road. His father was driving and a blue truck approached rapidly from behind and nearly side-swiped them as it passed. The driver of that truck allegedly glared at the family, but did not make any statements or gestures. The truck driver then cut in front of the family, slammed on the brakes and came to a complete stop. The truck driver then got out of his vehicle and approached the vehicle where father sat with his family.

The truck driver was not armed, but defendant was. Without getting out of his vehicle, the father held up his holstered handgun. Truck driver returned to his vehicle without saying anything.

Had it ended there, we might not be talking about this case. However, the encounter continued when the son in the rear vehicle got out, approached the truck driver’s vehicle and pointed a handgun at him. He told him to move his truck, or he would be shot. The truck driver, though, thought the defendant said NOT to move, or he would be shot. It was a critical misunderstanding.

Defendant returned to his own vehicle, but continued to point the gun at the truck driver.

The truck driver called 911. So too did defendant’s family. So too did passersby. Defendant’s mother and sister got out of the truck and took cover in a nearby ditch.

Defendant would later say the truck driver told him he had a gun, but no one else saw it and one was never found.

Police arrived and diffused the situation.

Defendant was arrested.

In denying defendant’s motion to dismiss based on Stand Your Ground, trial court found the actions of the truck driver didn’t rise to the level of forcible felony. He may have been reckless and his act of getting out of the truck was threatening, and a form of assault. By flashing the gun when the truck driver approached, the court found, he acted lawfully using non-deadly force to repel an imminent threat. However, when the truck driver returned to his vehicle, the threat was no longer imminent and therefore the subjective fear was no longer reasonable.

Thus, defendant wasn’t entitled to immunity for his actions.

The state supreme court did not reconsider all this evidence, only the standard by which it was weighed, which was that the defense had the burden of proof. That standard was affirmed.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:
Bretherick v. Florida, July 9, 2015, Florida Supreme Court
More Blog Entries:
Cohen v. Florida – Phone Call Gets Man 25 Years Prison, Aug. 6, 2015, Broward County Criminal Defense Lawyer Blog

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