Concealed Carriers are NOT Innocent Until Proven Guilty in Florida

Concealed Carriers are NOT Innocent Until Proven Guilty in Florida

Are we INNOCENT until proven guilty by the prosecutor when we use our licensed concealed carry gun for self defense when threatened with death or great bodily harm?

Or are we GUILTY until we prove ourselves innocent whenever we use our gun in a self-defense situation?

It certainly makes sense to me, a legal layman and non-attorney, that an accused defendant is first INNOCENT until proven guilty, when they used a handgun to defend their life or to avoid great bodily injury in the United States. After all, we still do have in existence the Second Amendment to our great U.S. Constitution (USC), which gives us the right to “keep and bear arms” for our self defense. And the 14th amendment to our USC guarantees to every person “equal protection under the law.” The Due Process Clause requires the government to respect all rights, protections and statutes before depriving anyone of life, liberty or property. Is the presumption of innocence a legal right of the accused in a criminal trial? Here in Florida, as in other states, there is much concern about this. Perception is reality.

The “presumption of innocence” to me is one of the most basic legal foundations and scared principles in our American criminal justice system.  I generally understand as a non-attorney that this important principle means that the prosecution or the State must prove, beyond a reasonable doubt, each essential element of the crime charged or the justifiable use of a weapon by someone in their own self defense.

Briefly, it means that this presumption shifts the burden of proof onto the prosecution to affirmatively prove that you committed a criminal act when you used your gun in self defense because of a threat to your life or great bodily injury. The prosecution should present compelling evidence of guilt beyond a reasonable doubt, but if reasonable doubt remains, you the accused and user of your gun for self defense should be acquitted.

But it is NOT that way right now in Florida. Florida law presently has the requirement that defendants bear the burden of proof at self-defense immunity hearings. Yes, that you as a defendant are GUILTY until you prove that you used your gun justifiably in a self defense situation. Even if you strongly and sincerely believed that your life was being threatened or that you would incur serious, great bodily injury if you did not respond using your licensed gun. While Florida over many years has had a low crime rate and has been strongly committed to Second Amendment rights and self defense, at this time it exists in Florida that you must take the initiative and PROVE that your use of deadly force with your licensed carry gun was necessary at that instantaneous moment you responded to the “bad guy’s” threat with your legal weapon. You as the defendant must bear the burden of proof for your self-defense actions that you believed were purely legal and reasonably justified at the time against a real threat.

This means that certain defendants who would be (and in my opinion should be) entitled to acquittal at trial will be deprived of immunity from trial and CONVICTED. Some folks who believed very sincerely that they were acting in proper self defense will go to trial and be convicted. I understand that Judges are not allowed to consider self-defense claims at sentencing. With the State bearing the burden of proof, there could be more pe-trial acquittals and the Stand Your Ground (SYG) law (Fl Statute 776.032) would better support immunity in self-defense situations. To this legal layman, pre-trial hearings are held in SYG cases to determine whether defendants are immune from prosecution and can go free.

The 2015 Florida Supreme Court ruling in the case Jared Bretherick v. State of Florida is a case in point. For details see Bretherick v. State of Florida.

“The issue in this case arises from Florida’s “Stand Your Ground” law, section 776.032, Florida Statutes, which provides for immunity from prosecution when a defendant has used force in accordance with certain specified statutory circumstances. Specifically, we address the burden of proof in a pretrial evidentiary hearing where the defendant has filed a motion to dismiss, claiming this statutory immunity from prosecution.”

Here is a brief summary of the case background:

An Indiana family, the Brethericks, were driving in Florida on their way to DisneyWorld and were involved in a road rage incident. Jared, age 22, and his sister, age 13, were in the back seat of a Chevy truck as their parents, both disabled veterans, were driving to a Christmas vacation in DisneyWorld.

A Florida man Derrick Dunning, driving a Cadillac Escalade, was reportedly driving recklessly through traffic at a high rate of speed. After Dunning almost collided with the Brethericks while swerving toward their truck, the driver, Ron Bretherick, responded with his horn and Dunning did not like it.

Dunning stopped his Cadillac in the middle of the highway in front of the Bretherick’s truck, got out of his vehicle, and walked toward the truck. The Bretherick’s said they felt threatened. Jared got his Dad’s gun from the glovebox and the wife called 911. As Dunning approached, the Dad held up his gun and Dunning returned to his vehicle saying ,”I got a gun too.”

Jared grabbed the family gun and got out of the truck and there was a standoff between the son Jared and Dunning. The Dad was immobile due to the nature of his disability. Then the police arrived 10 minutes after the 911 call by the wife. Despite witness statements, Jared Bretherick was arrested for aggravated assault for allegedly pointing a firearm, a deadly weapon. Police found no weapon in Dunning’s Cadillac.

Bretherick claims he felt threatened by the other driver, while the State alleges that the threat was insufficient to justify the threat of force. Bretherick was denied immunity, and appealed, alleging that Florida’s requirement that defendants bear the burden at self-defense immunity hearings was improper. Instead, Bretherick argued that the state should bear the burden of proof. In July 2015, the Florida Supreme Court ruled 5-2 in favor of the State, upholding the defendant’s burden of proof responsibility in self-defense immunity hearings. The majority ruling reaffirms that the use of force was not legally justified by the defendant.

Justice Canady in his dissenting opinion said:

“By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law.”

After this decision, to me law-abiding gun owners and concealed carriers in Florida are now more vulnerable to prosecution and conviction for acting in self-defense. Remember, I am not an attorney and am not giving legal opinions or legal advice. I understand that some defendants who would have been granted immunity if the State bore the burden of proof will be denied immunity and forced to go to trial where some will be convicted. Some of them would have been acquitted by a different jury. But very many people who sincerely believed that they were acting in proper self defense to a threat WILL be convicted because of the process and the defendant’s burden to prove their righteous personal protection behavior. Of  course, the complexity of what is “reasonable” for one and not for another complicates the process and allows room for error, subjectivity, and interpretation.

The legislature needs to correct this and reaffirm the rights of Florida’s gun owners and concealed carriers by fixing the law to shift the burden of proof in immunity hearings to the state and allows judges to consider self-defense claims at sentencing. A judge should be able to take into consideration genuine self-defense claims and personal factors by the defendant and depart from a demanding, concrete, and applicable mandatory sentencing.

What do you think?

This very week in the end of March, a Florida House is poised to make a decision about the Burden of Proof in Florida. The Florida Senate has passed their bill to change the Burden of Proof from the defendant TO the State, so the House must decide this critical issue and their bill. It is time that we reaffirm and support the idea that an individual using his gun for lawful self-defense purposes in a threatening situation does NOT bear the burden of proof and is INNOCENT until proven guilty by the prosecution. What will the Florida House of Representatives decide for our future, for Stand Your Ground, and for our right to bear arms when threatened? Let the legislators know your opinion. What is your opinion about this?

Be Safe and “Carry” on!

Photo by rmd.com

* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense and concealed carry. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.

© 2017 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written ermission. or copyright information, contact Col Ben Findley at [email protected].

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  • Ohio’s defense laws are the same way – you are guilty until you prove your innocence.

    • Col Ben

      Hey Darryl,
      Yes, several states have this same miscarriage of justice… in my opinion. Time to communicate our thoughts to help reverse this. Continued success!

    • Col Ben

      UPDATE: Just wanted to let you know that the Florida Legislature passed a bill May 5, 2017 that would change the Stand Your Ground law to place the burden of proof in “stand your ground” pretrial hearings on the prosecution rather than the defendant.

      The overall issue stems from a Florida Supreme Court ruling in 2015 that said defendants have the burden of proof to show they should be shielded from prosecution under the “Stand Your Ground” law. In FL “Stand Your Ground” cases, pre-trial evidentiary hearings are held to determine whether defendants should be immune from prosecution.

      Shifting the burden of proof would better protect the rights of defendants, according to proponents of the bill, like the NRA.

      Governor Scott is expected to sign this into law.

  • Bdpenn

    Thanks for discussing this very important issue. I am a firearms instructor and ccw carrier and have been following this closely. I am amazed here in Florida, that most of the folks I’ve talked with don’t have a clue about the burden of proof issue or the proposed legislation to correct the problem.
    You did a great job in presenting all the facts and background for the legislation. Wish FOX news would pick it up as a USC issue as well.

    • Col Ben

      Hi BD! Sadly, a lot of folks are not informed about this critical issue. It is an issue in several states. Here in FL it is creeping along so very slowly & is scheduled for a second reading in the House Judiciary Committee. In our small way, we should contact our legislators and express our ideas. I thought more here would be interested in this & would express their opinions. But actions speak louder than written or verbal words. Hope more recognize the necessity for involvement & make communications to help protect our right to unequivocally keep & bear arms.

  • Fred Miller

    Florida is one screwed up, insane state. In any case, anybody who uses deadly force of ANY kind is going to be on the defensive once the smoke clears. This is not the wild west-“that guy had a card up his sleeve!” If they pass this legislature, we’re going to see a lot more Florida shootings.

    • Col Ben

      Thanks for your opinion. Yesterday the FL House passed an amended bill for the burden of proof shifting to the party that seeks to overcome the immunity claim (State Prosecutor) by those who used their handgun in a clearly-defined self-defense situation (threat of death or great bodily harm), in only a criminal PRETRIAL immunity HEARING. I believe this reinforces our Second Amendment right and is on the right track for a win-win result. Blessings and Be Safe.

    • Col Ben

      Thought you and all those interested should know that yesterday June 9, 2017, FL Gov. Scott signed SB-128, Burden of Proof, and SB-1052, Justification for Use of Force, into law. Both are effective immediately.

    • Col Ben

      Want to give you a July 5, 2017 UPDATE: Florida’s June 2017 updated “Stand Your Ground” self-defense law is unconstitutional, ruled Miami judge Milton Hirsch on Monday, July 3. As you know, this “self-defense immunity” was designed to keep gun owners who discharged their weapons in self-defense from bearing the burden of proof, with the presumption of innocence on their side. Judge Hirsch ruled that lawmakers overstepped their authority in modifying the law this year to force prosecutors to disprove a defendant’s self-defense claim.

      Hirsch’s ruling isn’t binding, so other trial courts across Florida can follow the law if they choose. There will be appeals and the law will probably be reviewed by the Florida Supreme Court. Sen. Rob Bradley said he believes the Legislature acted lawfully and will be surprised if this decision were upheld at the appellate level.

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