In an unexpected ruling filed on Friday, the Fifth Florida District Court of Appeals in the case of Bretherick v. State has certified the following important question for consideration by the Florida Supreme Court:
Once the defense satisfies the initial burden of raising the issue, does the State have the burden of disproving a defendant’s entitlement to self-defense immunity at a pretrial hearing as it does at trial?
In the months immediately following the tragic February 2012 Trayvon Martin shooting, Florida’s executive branch struggled with a barrage of criticism regarding the state’s notorious “Stand Your Ground” laws. As a response, Governor Rick Scott and then Lt. Governor Jennifer Carroll formed the Task Force on Citizen Safety and Protection comprising legislators, law enforcement, civic leaders, and others. The group met in several locations throughout the state, and solicited public commentary following the completion of each location’s agenda items.
A little over one year ago at the Task Force meeting held in Jacksonville, Florida Carry’s lead attorney, Eric J. Friday, Esq. addressed the Task Force during public comment and raised a number of issues of concern to licensed concealed carriers, most importantly the haphazard employment of the immunity provision contained in §776.032 Florida Statutes, which provides that when a person uses force as permitted by statute, he or she is “immune from criminal prosecution and civil action for the use of such force” unless the person is a law enforcement officer acting in the performance of his or her duties. “As used in this subsection, the term ‘criminal prosecution’ includes arresting, detaining in custody, and charging or prosecuting the defendant.” Citing the Florida Supreme Court ruling in Peterson v. State, Mr. Friday pointed out that the decision relied on the inappropriate application of a Colorado immunity statute which is significantly dissimilar to that of Florida, and raised the question that if the Legislature intended immunity, then why was the burden of proof on the part of the defendant to prove his or her actions were in lawful self-defense and not the state to prove they were not? And in fact, where was the immunity from initial arrest as proscribed by the Legislature if in fact a person was not afforded the opportunity of providing that burden of proof prior to an immunity hearing? Although the Task Force considered Mr. Friday’s arguments, their final report contained the following comment:
The Task Force reviewed the Florida Supreme Court’s decision in Peterson v. State, which established a pre-trial adversarial proceeding for determining immunity for an individual claiming self-defense. Absent a clear procedure in current law for granting immunity under Section 776.032, Florida Statutes, the Florida Supreme Court established this procedure. The Task Force has determined that this procedure is adequate.
Fast forward to the present. Mr. Friday now finds himself defending an individual whose claim to self-defense immunity was denied by the trial court. A motion to appeal was granted by the court, and Mr. Friday expresses the same concerns regarding burden of proof, and questioning the procedural rules established by the Florida Supreme Court in the Peterson decision. Although the appellate court is bound by current precedent and concurred with the trial court’s denial, Associate Judge Belle B. Schumann echoed the defense concerns in her eloquent and thoughtful concurrence.
There are significant differences between Colorado’s statute and the self-defense immunity provided by section 776.032(1). Section 18-1-704.5(3) of the Colorado statute provides: “Any occupant of a dwelling using physical force, including deadly force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.” Colo. Rev. Stat. § 18-1-704.5(3). The Colorado statute applies only to home invasion burglaries and does not define immunity from criminal prosecution as beginning at arrest. It would appear that this is a far more limited immunity than is granted by section 776.032.
In fact, Judge Schumann went on to point out both the Kentucky and Kansas Supreme Courts “have determined that the burden of proof should lie with the State in a pretrial evidentiary hearing”. In her words, “If this Court were reviewing this issue…, I would find more persuasive these decisions from supreme courts in states other than Colorado, reviewing statutes nearly identical to Florida’s ‘Stand Your Ground’ statute.”
The Kentucky Supreme Court concluded that a defendant should be able to invoke the immunity provision at the earliest stage of the proceeding because it was “designed to relieve a defendant from the burdens of litigation.” The court held that once a defendant raises the issue of immunity, the State has the burden of proof to establish probable cause to proceed, which requires a determination that the use of force was not justified. The State may satisfy this burden by “directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.”
The Kansas Supreme Court reached the same conclusion in Ultreras when it reviewed a statute that mirrors Florida’s statute. They reasoned that granting immunity imposes a burden on law enforcement before arrest and on the prosecution before filing charges that indicates a legislative intent to put the burden of proof on the State. By placing that burden on the defense, as a practical matter, a defendant could never obtain the benefit of immunity from arrest or initiation of charges.
Judge Schumann also offered this straightforward and pertinent comment.
If the State is unable to sustain its lesser burden of proof at a pretrial hearing, then it would be unable to prove its case beyond a reasonable doubt at trial.
In summation, Judge Schumann posits:
Kentucky and Kansas, states with statutes that were modeled directly on our "Stand Your Ground" law, have found that the burden of proof properly rests with the State at the pretrial stage to demonstrate that the use of force in self-defense was unjustified. This construction creates a better procedural vehicle to test the State's case at the earliest possible stage of a criminal proceeding. 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.
Florida Carry applauds Judge Schumann and the Fifth District Court of Appeals for properly recognizing the legislative intent of §776.032 Florida Statutes. Executive Director of Florida Carry, Sean Caranna, enthusiastically praised the decision saying, “Judge Schumann’s astute remarks on the Bretherick case validate Florida Carry’s long-standing position as to legislative intent with regards to immunity.” Florida Carry lead attorney and defendant’s counsel in this case, Eric J. Friday remarked, "The 5th DCA is recognizing what Florida Carry has been saying all along. Determinations of immunity should carry out the intent of the legislature, not the whims and desires of anti-self-defense judges and prosecutors."
When comparing the statute of Colorado versus Florida, Kansas, and Kentucky, it appears the Florida Supreme Court has some serious work to do.