When Florida legislators voted in 2005 to strengthen their law on self-defense with the nation’s first Stand Your Ground statute, they set off a chain reaction. Today, two-thirds of the states give varying degrees of protection to crime victims who defend themselves with lethal force, although Florida’s goes further than most.
But now Florida lawmakers are looking to strengthen their state’s policies even more.
A bill introduced September 15 by state Rep. Dennis Baxley, arguably the legislature’s most stalwart supporter of Stand Your Ground laws, would set a new legal standard for establishing when self-defense claims can block prosecutors from taking a case to trial. Baxley’s bill proposes shifting the burden of proof from defendants to prosecutors, meaning that a prosecutor would have to prove that the defendant is not entitled to Stand Your Ground protection, rather than making an individual prove that he does fit the criteria. The legislation would add teeth to a law that already has a sharp bite. The Tampa Bay Times found in a study of Florida’s Stand Your Ground cases from 2005-2012 that nearly 70 percent of those who killed someone in self-defense were not punished, even though most of their victims were unarmed. The effort to bolster a law that already clearly favors defendants comes just as the American Bar Association is about to issue a report, an advance copy of which was provided to The Trace, suggesting that Stand Your Ground laws should be dialed back.
Adam Winkler, a professor at UCLA’s School of Law, tells The Trace that the bill marks a “huge shift.” Should it pass, he says, “more people are going to win their stand your ground challenges,” or prosecutors could avoid the risk of losing such cases altogether by filing fewer charges against people claiming self-defense. Florida self-defense expert Andrew Branca agrees, writing on his law blog, “This change makes it enormously more difficult for the prosecution to defeat a motion for self-defense immunity.”
Florida’s current law is actually a pair of laws, one that defines self-defense rights and one that changes the process for handling such cases. By spelling out a broad set of circumstances in which people have no duty to retreat in the face of a criminal’s threat to life or property, the 2005 law weighed in on the debate surrounding most claims of self-defense: When is the use of force reasonable? Under the “castle doctrine,” homeowners have the right to repel intruders. By expanding to public places the zone where there is no legal duty to retreat, Florida’s law enhanced that doctrine. Currently 33 states’ statutes or court-made rules set a variety of conditions under which law-abiding people may stand their ground against threats to life or property.
The bill aims to reverse a Florida court ruling on Stand Your Ground cases that puts the burden of proof on defendants. “
Where Florida and six other states have gone even further is in allowing defendants the right to a hearing that could grant them immunity from arrest, criminal prosecution and civil liability, without ever having to go to trial.
Those pretrial hearings are at the center of Baxley’s proposed bill. The measure aims to reverse the impact of a Florida Supreme Court ruling last July in the case of Jered Bretherick, who claimed he was entitled to Stand Your Ground protection after a road-rage incident in 2011. In that case, Bretherick’s family was vacationing from Indiana and driving to Orlando’s Disney World when they nearly got sideswiped by an SUV, prompting Bretherick’s father to lean on the horn. The truck’s driver, Derek Dunning, then 36, came to a sudden halt in front of them on the highway. He walked back towards the Bretherick’s car, but retreated when Bretherick’s father held his holstered handgun up to the windshield as a warning. After Dunning headed back to his SUV, Jered, then 22, took his father’s gun and confronted Dunning, allegedly telling him to drive away or he would shoot.
Bretherick later claimed he kept the gun at his side during the altercation. But witnesses painted a different picture, attesting in statements that he leveled the gun at Dunning, holding him at gunpoint in a standoff until police arrived. Prosecutors charged Bretherick with a felony, aggravated assault with a firearm.
Bretherick challenged that charge at a pretrial hearing, but a judge rejected his claim, saying Bretherick became the aggressor once Dunning returned to his vehicle. After a mid-level appeals court affirmed that ruling, Bretherick appealed to the Florida Supreme Court, arguing that Florida courts had “terribly misconstrued” Stand Your Ground by putting the burden of proof on defendants.
When the Florida legislature passed the statute in 2005, it did not specify how to conduct the pretrial immunity hearings that are central to a self-defense claim. So courts improvised a procedure that put the burden of proof on defendants using a “preponderance of evidence” test. That requires defendants to show that it’s at least slightly more likely than not that the evidence proves they are entitled to Stand Your Ground immunity. With support from the National Rifle Association, Bretherick’s lawyer — Jacksonville’s Eric Friday, general counsel of the gun-rights group Florida Carry — argued instead that prosecutors should have to prove at the pretrial hearing that defendants don’t meet the requirements. And he urged that the bar for prosecutors be set at the same height as the question of guilt at an actual trial — beyond a reasonable doubt — which is a much tougher standard to meet than what is currently required of defendants to prove their self-defense claim.
In July, the Florida Supreme Court rejected Friday’s arguments, ruling 5-2 to maintain the status quo. Putting the burden on prosecutors would mean they must prove their case twice, once at the pretrial hearing and again at trial, the court said. The ruling means Bretherick now faces a criminal trial, which had been sidelined throughout the appeals process. It is set to begin November 23 in Kissimmee. He faces a mandatory three-year prison sentence if convicted.
Baxley’s bill, then, tries to establish in a statute what Bretherick’s case failed to do in court. But Gary Kleck, a gun-rights criminologist at Florida State University, believes it isn’t good policy. “It’s a problem that doesn’t need solving,” says Kleck, whose research has long been used to support the argument for defensive gun use. He notes that it’s standard procedure to require defendants seeking to win an early dismissal of their case to prove they deserve it, and adds that the bill seems doomed. “It requires a bunch of legislators, most of whom are lawyers, to go against everything they were taught in law school,” he says.
A forthcoming report from the American Bar Association shows a pattern of racial disparity in Stand Your Ground cases: a white shooter who kills a black victim is 350 percent more likely to be found justified in the use of lethal force than if the same shooter killed a white victim.
Bretherick’s lawyer Friday, who’s lobbying for Florida Carry in favor of the bill, claims that the measure would only restore a balance that the legislature intended when it passed the law 10 years ago. Stand Your Ground, he says, is not the radical departure from legal tradition that opponents have claimed, but instead attempts to “recover a right that we as citizens lost to defend ourselves from criminals.”
But there’s much controversy over how that right plays out in practice. The forthcoming report by a task force of the American Bar Association counts Stand Your Ground repeal campaigns in at least 10 states, including Florida, in recent years as complaints have stacked up that the laws fail at their principal goal of reducing violence and encourage a “shoot first” mentality. (The report is a final version of a preliminary study last year.) The ABA’s report cites a 2012 study by researchers at Texas A&M that found that states with Stand Your Ground laws have more homicides than states without such laws. And the task force’s own research shows that Stand Your Ground laws feed into racial stereotypes, as a white shooter who kills a black victim is 350 percent more likely to be found justified in the use of lethal force than if the same shooter killed a white victim. The upshot for the ABA is a call to repeal or scale back the laws that have been passed since Florida’s 10 years ago.
About an hour’s drive from where Jared Bretherick and Derek Dunning had their run-in, George Zimmerman shot Trayvon Martin to death 45 days later. The resulting controversy drew national attention and inspired the movement to repeal Stand Your Ground laws, even though Zimmerman’s successful defense was based on ordinary self-defense rules and he never asked for immunity.
That’s typical of the confusion that often surrounds such laws, says FSU’s Kleck. These laws were designed to protect genuine crime victims from unwarranted prosecution. “The idea is, let’s sort out the good guys from the bad guys,” he says. But, adds Kleck, “We don’t make a perfect distinction between good guys and bad guys.”
That certainly could describe the Bretherick case, where the defendant, Bretherick, has a clean record and the man identified by authorities as the victim, Dunning, has multiple criminal convictions, including a one-year prison sentence for felony aggravated battery with a deadly weapon during another road-rage fight. Kleck notes that the Tampa Bay Times has documented how those sorts of blurry lines have been a recurring problem in Florida Stand Your Ground cases, and says the laws’ good intentions have yet to pan out. “It really hasn’t had a pure, clean test of how well it functions as public policy.”