After being prosecuted in a self-defense incident, holding a gun while his disabled veteran father called the police, a Florida man takes his case to the Florida Supreme Court, asking the court to re-assert that the state has the burden of proof in self-defense cases.

“The Florida courts have decided that you are guilty until proven innocent,” said Sean Caranna, the executive director of Florida Carry, Inc., the state’s largest independent gun rights organization with more than 12,000 members.

Due to an unwillingness to follow the letter of the law, the courts have shifted the burden of proof in self-defense cases to the defendant rather than the state denying Floridians self-defense immunity, commonly known as “Stand Your Ground” laws, he said.  “When we found out the facts of this case, we had to get involved because we want to return the precedent where it was.”

When the out-of-town family of four on their way to Disney World in Orlando in December 2011 was confronted with a reckless driver exhibiting road-rage their only recourse was to defend themselves in the best manner they could, he said. “Mom and daughter ran from the car and were hiding in a ditch.”

The driver, Derek A. Dunning, who is a convicted felon, pulled in front of the Bretherick vehicle and slammed on the brakes after Ronald Bretherick honked his horn at him for weaving through traffic. This trapped the Brethericks in the center lane of a three-lane highway, with traffic moving by on both sides, he said.

“Dunning gets out of his car and when he approaches Bretherick’s car, Bretherick takes his gun out of the glove box where it was legally stored and shows the gentlemen his holster.  Dunning goes back in his truck, backs up, pulls in his power rear view mirror and backs his truck up even closer to them, to completely back them in.”

While Bretherick is on the phone calling 9-1-1, his then 22-year-old son, Jared, who was still in the back seat, gets out of the vehicle with the firearm to take a defensive position to protect his father who cannot run from the car because of his disability, said Caranna.  “When the police show up they arrest the guy with the gun.”

Both Ronald and Jared have valid concealed carry permits. Dunning, on the other hand, has a history of road-rage incidents, he said.  “It was essentially an attack on a family inside their car – that is definitely a justifiable felony that definitely justifies lethal force.”

Jared Bretherick was nonetheless charged with aggravated assault with a firearm which carries a minimum mandatory jail sentence of three years.  At the pre-trial immunity hearing an Osceola County trial court denied Bretherick self-defense immunity in violation of the law, he said.

In its decision to certify the case to the Florida Supreme Court for resolution, the Appellate Court said (in part):

Self-defense immunity statutes are designed to relieve a defendant from the burdens of criminal prosecution from arrest through trial. Placing the burden of proof on the State throughout each phase of criminal prosecution best fulfills the legislative intent to create a broad grant of immunity.

“This puts the state Attorney General Pamela “Jo” Bondi, in an awkward situation,” said Caranna.  “Here we have a  prosecution that’s going forward, and the AG’s office is charged with insuring that state law as passed by the legislature is properly interpreted so she has a duty to the legislature to have the burden kicked-back in favor of the defendant.”

Now that the case is at the Supreme Court level, he said Florida Carry hopes the AG’s office will do their duty and recognize that the burden is currently in the wrong place. “Up until this point, however, there is no reason to believe that the AG will try and uphold the statute.”

In its appellate brief to the Florida Supreme Court, Bretherick asserts:

The intent of the Florida Legislature in enacting Sec. 776.032 was to provide law-abiding citizens with true immunity from prosecution and not merely an affirmative defense – Florida goes much further.  This immunity protects against arresting, detaining, charging, or prosecuting any individual who acted in self-defense.  The burden of proof in a self-defense immunity hearing should be placed on the state to prove beyond a reasonable doubt.

The National Rifle Association, in its amicus brief filed with Florida Carry, also known as “friend of the court” brief, contends:

The NRA respectfully asks this Court to properly carry out the Legislature’s intent to provide the strongest possible protection for crime victims, by finding that the state should bear the burden of disproving a defendant’s entitlement to self-defense immunity at a pretrial hearing.

The Libertarian Party candidate for Florida Attorney General, Bill Wohlsifer, said he agreed with the Appellate Court decision that sent this case to be heard before the Florida Supreme Court.

“Since there was conflicting evidentiary testimony at the trial level the defendant properly pleaded statutory immunity on the grounds of self-defense, therewith shifting the burden over to the state to prove that Bretherick was not in subjective fear of an imminent threat of bodily harm on the part Dunning,” he said.

Inconsistent with the intent of the state legislature when enacting the “Stand Your Ground” laws, Wohlsifer said the trial court improperly placed the burden of proof on the defendant to prove his entitlement to immunity from prosecution. “The intent was not adhered to.”