Here’s What the Legislature Should Do After Bretherick

Post Date: July 10, 2015

Yesterday the Florida Supreme Court issued its opinion in Jared Bretherick v. State of Florida. Per the opinion:

The issue in this case arises from Florida’s “Stand Your Ground” law, section 776.032, Florida Statutes (2011), which provides for immunity from prosecution when a defendant has used force in accordance with certain specified statutory circumstances. Specifically, we address the burden of proof in a pretrial evidentiary hearing where the defendant has filed a motion to dismiss, claiming this statutory immunity from prosecution.

For background on Jared’s case, go here. Briefly, Jared was arrested and charged with aggravated assault for allegedly pointing a firearm at an aggressive driver. Jared claims he felt threatened by the other driver; the state alleges that the threat was insufficient to justify the threat of force. Jared was denied immunity, and appealed, alleging that Florida’s requirement that defendants bear the burden at self-defense immunity hearings was improper. Instead, Bretherick argued that the state should bear the burden of proof. As is often the case in these matters, the issue put gun owners on one side, and law enforcement on the other. Per the opinion, “The National Rifle Association of America and Florida Carry, Inc., filed amicus curiae briefs in support of the Petitioner, Jared Bretherick, who was the defendant in the trial court. The Florida Prosecuting Attorneys Association appeared as an amicus curiae on behalf of the State.”

The Court ruled in favor of the state, upholding the defendant’s burden of proof in self-defense immunity hearings. Setting aside whether or not the Court got it right – I think they got it wrong – what are the practical impacts of the decision? In his strong dissent, Justice Canady puts the issue plain

By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law.

He continues:

. . . the majority’s decision here guarantees that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.

I think it’s actually worse than that. The decision guarantees that some defendants who should be entitled to acquittal at trial will nonetheless be convicted. As I’ve noted many times, self-defense cases are often very close calls. Reasonable people will disagree about whether a given act is criminal or justified self-defense. As a result of this decision, then, some people who would have been granted immunity if the state bore the burden of proof will be denied immunity and forced to go to trial (or, more likely, accept a plea offer). Some of those people will be acquitted, but some will be convicted. Given the nature of these things, some of those convicted would have been acquitted by a different jury. It’s a certainty, then, that some people who believed sincerely that they were acting in self-defense will be convicted

What should happen to them? 

Thanks to the Threatened Use of Force Act, if the offense is aggravated assault, a judge will be able to take into consideration the self-defense claims and depart from an otherwise applicable mandatory sentence. (Notably, though, that law does not apply to Jared’s case. If he’s convicted at trial the sentencing court will be forced to sentence him to three years in prison.) But for any other 10-20-Life offense – e.g., aggravated battery – a mistaken self-defense claim is irrelevant for sentencing purposes. It doesn’t matter how close the call was – if you’re convicted, you get the minimum sentence (e.g., 25 years for aggravated battery).

This is wrong. Florida has made a strong commitment to self-defense and Second Amendment rights over the years, and that commitment has contributed significantly to our state’s 43-year crime low. The Threatened Use of Force Act was part of that commitment; the legislature was right to pass it, and Governor Scott was right to sign it. As we learned during the debate on the Threatened Use of Force Act, it was never the intent of 10-20-Life to ensnare citizens who use firearms in mistaken self-defense. But make no mistake: after yesterday’s opinion, law-abiding gun owners in Florida are now more vulnerable to prosecution and conviction for acting in self-defense. The legislature should fix this, and reaffirm the rights of Florida’s gun owners by passing a law that shifts the burden of proof in immunity hearings to the state and allows judges to consider self-defense claims at sentencing. 

~Greg Newburn, FAMM State Policy Director