In Florida, ‘Bretherick’ Makes Self-Defense Harder

Florida-Supreme-Court-Seal-300Law Shield would like to inform our Florida members about a recent Florida Supreme Court case that affects how the state’s “stand your ground” law will be enforced.

The 5-2 ruling in Bretherick v. State of Florida dealt with immunity to people who use justifiable force in self-defense.

In “stand your ground” cases, pre-trial evidentiary hearings are usually held to determine whether defendants are immune from prosecution because of the law. This case decided who should have the burden of proof during those hearings —defendants or prosecutors.

The NRA provided a clear roadmap of the issue in an amicus brief:

This case is about whether a person who raises a facially valid claim of self-defense should have the burden of proving immunity from prosecution at a pretrial hearing, or whether the state should have to show that unlawful force was used, as it would have to prove at trial.

The statutory provision to be implemented specifies that a person lawfully using defensive force “is immune from criminal prosecution.” § 776.032(1), Fla. Stat. That language, read in the context of the statute as a whole and its accompanying “whereas clauses,” was chosen by the Legislature to express a strong public policy in favor of self-defense by law-abiding people in Florida. Forcing crime victims to prove their entitlement to immunity is inconsistent with that policy.

Recent and well-founded opinions interpreting virtually identical language in other states further support placing the burden of proof on the state to overcome claims of immunity based on self-defense. While some states’ courts have taken a contrary view—putting the burden of proof on victims—those decisions have been based on factors that are not present in Florida, and in some cases have been based on inapt analogies even under those states’ own laws.

In light of the language and intent of the statute, and the weight of opinion in other states, this Court should find that the burden of proof at a pretrial hearing is on the state.

Instead, justices sided with lower courts that have required defendants to prove that they should be protected from prosecution by the self-defense law.

Justice Barbara Pariente wrote in the majority opinion that immunity in the “stand your ground” law “is not a blanket immunity, but rather, requires the establishment that the use of force was legally justified.”

“We conclude that placing the burden of proof on the defendant to establish entitlement to Stand Your Ground immunity by a preponderance of the evidence at the pretrial evidentiary hearing, rather than on the state to prove beyond a reasonable doubt that the defendant’s use of force was not justified, is consistent with this court’s precedent and gives effect to the legislative intent.’’ The decision was joined by Chief Justice Jorge Labarga and justices Peggy Quince and James E.C. Perry. Justice R. Fred Lewis concurred in the outcome, though he did not sign on to the majority opinion.

In the dissent, joined by Justice Ricky Polston, Justice Charles Canady wrote that the ruling “substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law.”

“The factual question raised by the assertion of Stand Your Ground immunity in a pretrial evidentiary hearing is the same as the factual question raised by a Stand Your Ground defense presented at trial: whether the evidence establishes beyond a reasonable doubt that the defendant’s conduct was not justified under the governing statutory standard.’’

Click here for a thorough summary of the facts.

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