Monday, November 25, 2013

A Critical Case on Self Defense Soon Going to Florida Supreme Court

What may happen to the burden of proof in immunity hearings in Florida in 2014?
copyright 2013 by jon gutmacher

On November 1, 2013,  the Fifth District Court of Appeal decided what may become the most critical self defense case in Florida history,  Bretherick v. State, 38 Fla.L.Weekly D2276 (Fla. 5DCA 2013). The case is interesting both factually and legally -- and raises an issue I have been arguing and lecturing about for years -- that the burden of proof in an immunity hearing MUST be on the government to give the immunity statute any effectiveness.  Without it -- the statute is generally worthless except in clear situations where the presumptions in s. 776.013 kick in for home defense or defense of an occupied conveyance. There are also a few things the attorneys and court seemed to have missed -- but we'll get into that in a minute:

The facts of the case,  from reading the Opinion of the Court, go like this:  The Bretherick family is on vacation in Florida heading to Disney on a major road -- obviously not I-4.  The vehicle includes the defendant, his sister, his mother, and father.  The father is driving when a pickup truck approaches rapidly from behind them, almost side swipes them as it goes by,  immediately cuts in front of them slamming on the brakes, and comes to a full stop blocking their forward progress.  There is no other traffic on the road at that time.  The driver of the truck gets out, approaching them on foot, and the defendant's father holds up a holstered handgun to show he is armed.  The truck driver  thinks better of what he is doing, and returns to his truck -- but does not move it.   The defendant gets out of the rear passenger seat with a handgun,  approaches the parked truck with gun pointed, and orders the driver to move his truck or he will shoot him.  In the meantime,  other drivers have seen the incident and called 911, as well as members of the Bretherick family.  Also,  both the women in the Bretherick family have taken refuge in a ditch off the side of the road for protection, as they fear for their lives. Police arrive, and arrest the defendant (not the truck driver!) for aggravated assault -- a three year mandatory minimum felony.  The defendant insists that the driver of the truck told him he was armed with a gun.  The driver of the truck tells the police he wasn't, and that he thought the defendant told him that "if he moved his truck he'd be shot".

The defendant's attorney files a motion to dismiss based on "Stand Your Ground" immunity, and at the hearing, among other things,  argues that the burden of proof during the motion should be on the government, and not the defendant.   This is overruled based on prior case law.   The evidence at the hearing is conflicting on some issues (not elaborated by the appellate court) except it is made clear that the trial judge did not believe that the driver of the truck told the defendant he was armed.  Had the burden been on the State -- the appellate court stated that the trial judge "may have" ruled the other way.   The defendant loses the hearing, and immediately appeals the ruling to the Fifth District Court of Appeal by a method of review called "prohibition". "Prohibition" is a remedy of  limited application that allows appellate review prior to a plea or verdict in only a very narrow class of circumstances.

The Fifth District agrees with the defendant -- that prohibition is a proper method to review the denial of a motion to dismiss based on "Stand Your Ground" immunity,  but also decides that it is bound by earlier precedent of the Florida Supreme Court that held that the burden of proof in a "Stand Your Ground" immunity hearing is on the defendant,  not the government.  Dennis v. State, 51 So.3d 456 (Fla. 2010).   In that case,  the Florida Supreme Court was really deciding an entirely different issue as to whether a pretrial evidentiary hearing was required at all when a "Stand Your Ground" immunity issue was raised.  However, in the Dennis case, the question concerning the "burden of proof" was never really argued -- but because the Florida Supreme Court "approved" the lower court's method of how the hearing should be conducted -- that method became the law of the State of Florida, and (as I stated in my book) until changed by the Florida Supreme Court -- must be followed in all such cases.  The Fifth District also decides that inasmuch as the truck driver had retreated to his vehicle -- there was no longer an "imminent threat" to the safety of the defendant or his family, and the defendant's "use of force" in pointing the firearm at the truck driver was "objectively unreasonable".  For that reason the Fifth District affirms the denial of the motion to dismiss.   However . . .  this is where it gets interesting . . .

Associate Judge Schumann writes a concurring opinion in the case that the rest of the Fifth District is sympathetic to.  The concurring opinion argues that the failure to put the burden of proof on the government in a "Stand Your Ground" hearing basically negates the immunity protections of the statue, and cites cases from two other states that support that argument.  Based on this excellent concurring opinion,  the Fifth District "certifies" the question of who should have the burden of proof to the Florida Supreme Court -- so that the issue can finally be directly decided.

Now, why is this so important?

Well . . . "immunity" is supposed to spare a person from having to defend themself against a criminal charge.  However,  if a defendant is the one who has the burden of proof -- then he or she is not only forced into hiring or obtaining legal counsel -- but the attorney will be forced to use extensive time and resources preparing for any "Stand Your Ground" hearing in order to not only show entitlement to the immunity -- but also to be prepared to rebut and overcome any contrary evidence the State might offer.  It significantly intensifies and extends the entire judicial process, and can bankrupt most average individuals.  Just think of some of the hearings during the Zimmerman case on the admissibility of expert testimony -- and you get a rough idea how extensive and expensive this can become.

Likewise,  in any other circumstance where a defendant is raising an immunity issue -- the State normally has the burden of proving that immunity is not applicable.  (ie: "Kastigar" hearings)  In fact, in any motion to suppress a confession or evidence -- the State has the burden of proof.  So, why make an exception where the Florida Legislature wrote the statute to prevent even an "arrest" if there was a legitimate issue regarding "Stand Your Ground" immunity?   That's the question nobody has really addressed in the Florida courts so far . . . at least until the concurring opinion in the Bretherick case came along.

But . . . let's digress a little to my first paragraph where I stated that perhaps the court and attorneys missed an important issue in this case.  What did they possibly miss?

Well . . . the Fifth District held that it was "objectively unreasonable" for the defendant to believe that it was necessary to approach the truck with his gun drawn in order to defend himself and his family once the pickup driver retreated, as there was "no longer an imminent threat".  Therefore,  the defendant "could not justify his use of force".

Is that true,  you ask?

Well . . .  since the appellate court always has the last word --  disagreeing probably won't do us much good . . . unless we first present the issue to them in a way they can understand it.  And, since I have the training to know they are wrong -- here's what I think everyone missed:

While the defendant could certainly have stayed in his vehicle, or sought shelter until the police arrived . . . he didn't know when that would be.  It could have been two minutes, or forty minutes. Nobody really knew.  Like the Zimmerman case -- it probably would have been more intelligent for him to take cover, and wait.   He had a firearm -- and it appears that his father had one, as well.  But, he didn't take the safe route -- he didn't wait it out.   And even though the appellate court felt he and his family were out of imminent danger -- they were dead wrong!


Well . . . he was still faced with an individual who had acted in an outrageous and threatening manner.  He did not know if the truck driver was armed, and in this day and age he could reasonably assume that he was.  Plus, even though the truck driver had retreated back to his vehicle -- he didn't try to leave after the retreat.  He was still blocking the defendant's car.  He could have been retreating to his vehicle to obtain a firearm, or reach cover for a better firing position.  (Another reason it was not real smart to approach him)   But, he hadn't disengaged!  He never tried to drive off!  He was still technically the "aggressor".

Likewise . . . the appellate and lower court made an incorrect finding that the defendant had used "force" in ordering the truck driver to move.  In fact -- no "force" was used at all, and certainly no "deadly force".  There was merely a "conditional threat" to use force at some point in the future if the truck driver did not stop illegally blocking the way.

I guess you could argue that the defendant and his family could return to their vehicle, and drive around the truck.   However,  they were waiting to be rescued by the police.  Likewise, the women had taken shelter, and the defendant was doing his best to try to defend them by taking actions he thought might work.   Certainly,  if the family got back in their vehicle, and drove off -- now the truck driver would be BEHIND them, and in a better position to take a shot if he was armed -- plus the entire family would have given up "cover", and would now become exposed targets.  So too,  the defendant claimed that the truck driver told him he had a gun when the defendant approached his truck.

Would anyone in their right mind approach a driver who had acted the way the truck driver had unless they were armed with a firearm?  Would any police officer in their right mind approach without his or her firearm drawn?

The answer to the question is obvious.  And this is an argument that should have been made to the appellate and trial court (probably through an expert witness) so they would have understood that there was no "use of force",   but only the "threat" of using force.  More importantly -- even if the courts could somehow equate the threat with a "use" of force -- they would understand that it would have been objectively "unreasonable" and possibly suicidal for the defendant to approach the truck driver --  UNLESS he was armed!  No rational person (except maybe for a judge) would approach a possibly armed nut case in such a situation, being less than fully armed.  In fact -- even if the truck driver had not committed a felony by his actions (and the appellate court found he did not) -- he had still committed at least a "breach of the peace" that justified a reasonable fear of imminent death or great bodily harm in most people who watch the news around here.  The nut cases that roam the streets and roads of this country and State are truly dangerous!

So . . . hopefully, these last few paragraphs are not just "teaching points" for those reading this article -- but maybe can be used (if filtered back) for everyone involved in the case.  And the corollary to that is that had the defendant taken the "safe route" rather than the "brave route" -- he wouldn't be in this situation, in the first place.  But instead,  he's the guy facing the mandatory prison sentence, rather than the guy who really deserves it!!!  Scum bags lie!  Then it's your word against the scum bag -- and lots of judges don't like guns!

Lesson learned?


  1. Lesson learned. Thank you for the analysis. Even with this decision, I don't see how the truck driver gets away with what he did.

    Personally, whether the driver had a gun or not, I would have considered the truck a weapon — he had already used it to force the defendant and family to stop. Was this ever brought up?

    1. I do not believe this would be a viable argument once the truck came to a stop.

  2. Would the case have been different if the defendant held the firearm in a "ready" position (pointed at the ground) rather than pointing it at the driver of the truck?


    1. In my opinion having the firearm in the "ready" position might change things -- but I doubt the truck driver would have told the truth -- and there's still the issue of how that works with the verbal threat.

  3. I agree with you that pointing the gun was not "the use of force." If the Florida Supreme Court discusses that point and holds the analysis is correct, doesn't that render F.S. 776.032 inapplicable since it does not explicitly apply to threats to use of deadly force.

  4. This may be a peripheral issue and have no direct bearing on this case as you've presented it here insofar as it concerns the issue of immunity - however, after reading your book with all its requisite warnings and laws surrounding stand your grand and the use of deadly force, I have issues with the defendants actions. I am not sure why a firearm was introduced in the first place. Although the truck driver was clearly reckless with his driving, what "imminent" lethal threat did he pose to the family when he got out and approached their car? The take away I got from your book was you better be damn sure if and when you draw your firearm, you have the right to do so because your life, or someone else's is in immediate danger and your actions are "reasonable." From what I was able to glean from your book, at the very least, the father committed aggravated assault when he exposed his firearm to ward off any potential threat from the truck driver. Notwithstanding the issue of burden of proof here, I have no interest in being arrested or charged with a felony and therefore will make certain when I draw my firearm, my reason for doing so is bullet-proof ( pardon the pun). At some point the family made a conscious decision to call the police, in my opinion they did it later than they should have and could have spared themselves a lot of aggravation. I could understand brandishing a weapon if they had locked their doors and windows and the driver had committed a forceable felony by breaking a window and forcing his way into their car with a weapon, threatening their very lives.

    I am all for self-defense, but I just don't get the actions of this family. Isn't it better to err on the side of caution and save yourself from all that grief and aggravation in the first place?


    1. In my opinion, the father was 100% correct in exposing his firearm as the truck driver approached, and was totally lawful. The defendant, on the other hand, let his adrenalin overcome his common sense.

  5. Jon,
    Let me ask you this. If the defendant shot and killed the guy when he approached the car. From a lawyer standpoint would this of been easier to defend if charger were then brought? Food for thought.

    1. I think he'd be charged with manslaughter, and likely convicted as there was nothing in the opinion that indicated the truck driver was armed. On the other hand, I'd most certainly have my firearm in hand -- and be ready for the worst. I think that a verbal warning not to approach and that the police had been called would be OK -- even if I was also pointing my firearm. But the problem in this case, from my perspective, was when the defendant approached the truck driver vs. the other way around.

  6. You really did a great job by posting the article about A Critical Case on Self Defense Soon Going to Florida Supreme Court .Thanks for your valuable information.

  7. Your points have filtered back

  8. Hey, Sean. Thanks for the attachments -- and acknowledgment. Always hoping somebody in the legal area reads this stuff -- because I try to keep ahead of the game on how these issues need to be presented if they get before the courts.