One reason it’s getting difficult to write about gun law lately is that the body of law is getting difficult for a part-time layperson to keep up with. That’s certainly the situation with this latest case going before the Florida Supreme Court. The media almost never gets the issues right in these cases, so I went and looked up the Appeals Court decision:
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.
It’s difficult for me to see in this situation where the reasonable fear of grave bodily injury or harm was in order for Bretherick to be entitled to a self-defense claim. Again, this has nothing to do with a duty to retreat, the reasonable fear just wasn’t there by the facts presented. But the appeal that is proceeding to the Florida Supreme Court is based on the following question:
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?
NRA’s Amicus can be found here. I agree with NRA that the burden of proof should be on the state, but it’s difficult for me to see how in this case the state could not meet its burden even if that were the case. The Florida Supreme Court decision in Dennis v. State already started to outline the situation where pre-trial immunity can be claimed, by adopting this rule from a lower court:
Likewise, we 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.
NRA challenges the assertion that the burden is on the defendant to prove they are entitled to immunity, rather than the state proving they are not entitled to it. NRA argues the lower court’s decision was based on a Colorado law that is dissimilar to Florida’s, and goes on to argue that the state should have to disprove immunity beyond a reasonable doubt.
It’s difficult for me to understand how that doesn’t turn the immunity hearing into a trial in and of itself, with all the expense that would ordinarily accompany a trial. The advantage would be a chance to have a trial that at worst only results in another trial. It’s a bit of double jeopardy for the state.
In Florida, the mere display of a firearm is not, as a matter of law, lethal force. Therefore, there does not need to be a threat of grave bodily harm in order to display a firearm. (Stewart v. State, 672 So.2d 865, 867-868 (Fla. 2nd DCA 1996)(the mere display of a gun without more constitutes non-deadly force))
I had been given to understand that the impetus behind FL’s self-defense laws being updated was in response to prosecutors charging legitimate uses of force and letting the courts sort it out (at the expense and to the detriment of the force user). In response, the legislature decided to force the prosecutor to demonstrate that the use of force was not legitimate before inflicting the costs of a trial on the force user, and thus the State (in the office of the Prosecutor) should have the burden of proof of demonstrating that the use of force was unlawful. In general, the burden of proof in a (possibly criminal) hearing ought to be on the state, as the general Constitutional rule is Innocent until Proven Guilty. Even a “Not Guilty” verdict requires a ruinous effort on the part of the defendant these days.
Divemedic’s reference to the law concerning display of firearms throws an entirely different slant on things, IMO.
Florida law held that the use of a firearm in a threatening manner – without a valid self-defense claim – to be assault. However, Florida updated their laws last session to allow threat of death or harm to be used with a lower bar for use.You can now threaten to kill someone if they fail to leave when trespassing your property (if I recall…don’t quote me there), or if you feel harm is imminent or a felony is occurring. This includes the “warning shot” (which is a dumb, dumb, dumb thing to do but whatever). So if this happened today, there would be another defense possible and the “assault” might be defined somewhat differently.
I don’t necessarily agree with the proposal that the state must disprove self-defense if the pre-trial phase beyond a reasonable doubt. It’s not a trial, so I think their affirmative defense requirement (you have the defense, but you need to take it and prove it) adequate.
Think of it this way: if the defense gets two chances to be acquitted using exceptionally high standards (beyond a reasonable doubt), then why wouldn’t every single murder suspect go for the self-defense option? There is no downside for them, and only the chance to get free. Twice. Before the appeals.
If self-defense hearings become cookie-cutter in Florida, then legitimate claimants are going to be harmed. Florida judges and DAs/SAs will stop taking them seriously. Their responses will also become cookie-cutter.
The pre-trial hearing is not a jury trial. If judges get them as a matter of course, they are human and will just assume someone is trying their get-out-of-jail-free card, instead of seeing a defendant who at least has some kind of credible claim. An affirmative defense system does not prevent abuse, but at least you’d have to have a lawyer who has to review the evidence and present a cogent argument to prove (still a low bar, fwiw) a reasonable person would agree that his clients actions were justified.
Not sure I am explaining myself well. The point is, that in all the killing in a state, not many would fall into the “legitimate self-defense” category. Many would just be anger issues gone too far. But by creating a high-bar for prosecution, the converse is that it’s a lower bar to avoid prosecution. So more lawyers will attempt it, and “pollute” the legitimate claims with obvious murders. That cannot be good for those who have a real claim.
Patrick, your assessment of a claim of self defense as an affirmative defense would be valid if it were not for §776.032 Florida Statutes, which says in part:
“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. As used in this subsection, the term “criminal prosecution†includes arresting, detaining in custody, and charging or prosecuting the defendant.”
1. Notice the statute says the person IS immune, not MUST QUALIFY FOR or MUST SHOW ELIGIBILITY FOR immunity. The person HAS it already.
2. What is the person immune from? Criminal prosecution. And what is included in criminal prosecution? Arresting, detaining in custody, charging, or prosecuting the person.
3. Compare the STATUTORY IMMUNITY granted by the Legislature and the QUALIFIED IMMUNITY granted to law enforcement by the Judiciary. In the structure of Florida state government, the Legislature and the Judiciary are co-equal along with the Executive branch. So why does the judicial branch’s “qualified immunity” grant infinitely more privileges and protections to law enforcement including the burden of proof at ALL stages of a law enforcement officer’s questionable self-defense, yet the citizen gets arrested, incurs legal expenses, loses time from work, suffers the scorn of others, and has to pay a huge bill under the Legislature’s “statutory immunity”.
Your thoughts?
A nice fresh can of pepper spray would be ap[propriate in a case like this. Uncomfortable for Dunning and, if the spray was effective,Brethericks could have taken off,called the police,or,better yet, disappeared.
Dunning was clearly in the wrong. This is NOT a SYG incident. Its road rage and Dunning should be held accountable.
I am one of the defense attorneys on the Brethetick case. Your article leaves out three VERY crucial facts. Jared did not leave his family’s vehicle until AFTER Dunning got back into his truck and backed closer to the family after seeing the father’s gun – a highly threatening move based upon the totality of the curcumstanes. Dunning’s return to his truck after assaulting the family was NOT a retreat, but a return to his primary weapon – his truck. Case law is replete with cases where a vehicle that is used in any other manner besides the lawful transportation of people or goods is considered a weapon. Dunning’s truck was a 6,000 pound weapon. Currently, a driver in Osceola county is being charged with aggravated assault when he used his vehicle in a road rage incident and a current case in California. Bottom line is that Jared would never had e left his family’s vehicle if Dunning had not backed up. Third fact, there is a major dispute in the trial record that Jared ever approached Dunning’s truck. In fact Jared is only heard on his father’s 911 call, which places him at his father’s vehicle, not Dunning’s.