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Florida 'Stand Your Ground' - A Court Test
Posted By: Scott Weber 11/30/2014 @ 09:02 PM

Florida Supreme Court to hear 'stand your ground' case

  By Jeff Weiner, Orlando Sentinel

      An unexpected roadway confrontation between a family from Indiana and a Kissimmee, Fla., man three years ago could soon reshape the way Florida's "stand your ground" law is applied in cases throughout the state.

     Wrapping up a vacation on Dec. 29, 2011, Ronald Bretherick was driving toward Disney World with his wife, Deborah, and their son and daughter, when the family says they were nearly sideswiped by an sport-utility vehicle on U.S. Highway 192.

     Bretherick honked as the other driver, Derek Dunning, sped past in a blue Escalade.

     From there, the situation quickly escalated.

     By the time it was over, the Brethericks' son Jared was in jail, accused of pointing a gun at Dunning. The then 22-year-old said he was trying to assure his family's safety until authorities arrived.

     Though no shots were fired, a judge refused his request for immunity from prosecution under "stand your ground." He appealed, challenging the procedure used by Florida courts in "stand your ground" cases.

     The Florida Supreme Court is set to hear his case Tuesday. If Jared Bretherick prevails, defendants may no longer have to prove they acted in self-defense in order to win immunity — potentially expanding the application of the self-defense law.

     Deborah Bretherick said she could see trouble coming after her husband hit the horn.

     "The way he stared at me, it was just the most unnerving" look, she recalled in a recent interview.

     According to the Brethericks' account: Dunning cut them off, then came to a stop in front of them, in the center lane of traffic, and left his SUV. Ronald called 911 and showed his still-holstered gun as a warning. Dunning then returned to his SUV but backed it up toward the Brethericks.

     Deputies said they arrived to find Jared Bretherick standing outside his family's truck, pointing his father's gun toward Dunning's SUV.

     His mother and sister had fled to the roadside; Jared explained he stayed behind to protect his father, a disabled veteran. He also said he heard Dunning claim to have a gun, though none was found.

     Jared Bretherick was arrested on an aggravated assault charge. After a hearing in June 2012, Circuit Judge Scott Polodna largely accepted the Brethericks' account as true, but denied Jared's request for immunity, due to several factors:

     Dunning wasn't committing a forcible felony, the judge ruled. At worst, he said Dunning's driving was reckless and the "threatening act" of leaving his SUV to approach the Brethericks was assault, a misdemeanor.

     After Ronald Bretherick waved the gun, Dunning returned to his SUV — a "retreat," the judge ruled.

     Polodna didn't buy that Dunning had claimed to have a gun and said there also was a miscommunication: Jared Bretherick told Dunning to leave or he would shoot, but Dunning said he heard, "If you move, I will shoot you."

     "This slight but critical misunderstanding explains everyone's subsequent actions," Polodna wrote.

     Bretherick appealed Polodna's ruling, challenging the procedure Florida courts have used for years, which places the burden of proof on the defense to win immunity without a trial.

     The argument for Bretherick's side: Florida's self-defense law promises "immunity," even from arrest, so those who act in self-defense shouldn't have anything to prove.

     The Fifth District Court of Appeal, finding that the burden issue hadn't been specifically addressed in previous cases, asked the state Supreme Court for guidance.

     If the Supreme Court sides with Bretherick, those who claim "stand your ground" in the future would not have to prove it. Instead, the state would have to prove the defendant did not act in self-defense, in a pretrial hearing and again at trial.

     "If the court rules the state's got the burden, I think it's going to open the door for a lot of lawyers to use the immunity statute that were not using it," said Robert Buonauro, an Orlando attorney with "stand your ground" experience.

     Charles Rose, director of Stetson Law's Center for Excellence in Advocacy, says the burden debate arises from a basic issue: The law was designed as "a political statement about the right to bear arms," but lacked specifics, giving no procedure for how the courts would decide immunity.

     "It's a political statute being applied in the real world set of circumstances," he said.

     Both Rose and Buonauro say the state should have the burden in "stand your ground" cases.

     The National Rifle Association, which helped craft "stand your ground," has filed a brief in support of Bretherick's position.

     Attorney General Pam Bondi's office, in its response, argued changing the procedure "could call into question the validity of numerous convictions ... and disrupt a process now relatively well-honed in the trial courts."

     The Brethericks called 911 as soon as the conflict with Dunning began: "100 percent of my feeling was, as soon as the police get here, we'll be fine," Deborah Bretherick recalled.

     She said the shock of her son's arrest was compounded when she learned about Dunning's past.

     A convicted felon, Dunning served prison time in a 2003 case with similar allegations, records show: He attacked a driver who had tried to pass him on John Young Parkway, before hitting the man with his car while fleeing the scene.

     Dunning, who also called 911 during the 2011 incident, did not return multiple calls to the cellphone number listed for him in prosecution records. An attorney for Dunning could not be reached.

     He told deputies he was confronted by Jared Bretherick at gunpoint after stopping at a traffic light.

     Deborah Bretherick said her son is a responsible gun owner who attended a citizens' academy to learn how to use firearms safely. He faces a mandatory three-year prison sentence if convicted.

     "He always has a smile, always greets you with respect," his mother says. "He's always just respectful of people's property, of people in general."

    Jared Bretherick's lawyer, Eric Friday of Jacksonville, says the arresting deputies fell victim to their initial impressions.

     "Some people in law enforcement feel that anybody with a gun other than law enforcement must be a bad guy," he said. "And I think that's what happened here."  

                                                -30-

 



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