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Justices ponder self-defense law in traffic confrontation

TALLAHASSEE, Fla. – The case started during the holidays in 2011 as an Indiana family drove on a highway in Osceola County.

But nearly three years later, that drive --- the kind taken by countless visitors to the Orlando area --- led Tuesday to the Florida Supreme Court grappling with questions about the state's controversial "stand your ground" self-defense law.

Jared Bretherick, a passenger in the vehicle, was charged with aggravated assault with a firearm after brandishing a gun while in a confrontation with a motorist who had cut the family off in traffic. Bretherick unsuccessfully argued in lower courts that the charge should have been dismissed because of the "stand your ground" law, which in part provides immunity to people who use justifiable force in self-defense.

Bretherick's attorney, Eric Friday, asked the Supreme Court on Tuesday to revamp a key part of the way courts have carried out the law. Currently, defendants have the burden of proof of showing they should be covered by the "stand your ground" legal protections. Friday contended that, instead, prosecutors should bear the burden of proof on such questions.

The argument, however, appeared to draw skepticism from some justices, who said the Legislature did not detail in the law who should have the burden of proof. They also said lawmakers during the past few years could have addressed the issue but remained silent.

"We'd be looking at it and trying to guess what the Legislature actually wanted,'' Justice Barbara Pariente said.

Bretherick has drawn support in the case from the National Rifle Association and another gun-rights group, Florida Carry, Inc. In a brief filed in June, the NRA asked the Supreme Court to "properly carry out the Legislature's intent to provide the strongest possible protection for crime victims, by finding that the state should bear the burden of disproving a defendant's entitlement to self-defense immunity at a pretrial hearing."

But Assistant Attorney General Kristen Davenport told justices that the burden of proof has not been a problem in other "stand your ground" cases. She said Bretherick can also argue during trial that he acted in self-defense. The refusal by a circuit judge to dismiss the case based on "stand your ground" came during a pretrial hearing.

"Mr. Bretherick is free to raise his arguments in front of a jury,'' Davenport said.

The Supreme Court typically takes months before it rules on such issues.

Bretherick's case started Dec. 29, 2011, as he was a backseat passenger in a vehicle driven by his father on the three-lane Irlo Bronson Memorial Highway in Osceola County. In a brief filed with the Supreme Court, Bretherick's attorney wrote that the vehicle was almost run off the road by a truck, causing Bretherick's father to honk at the truck.

The driver of the truck, identified in court documents as Derek Dunning, then abruptly stopped in front of the Bretherick vehicle in the middle lane. Dunning, who was unarmed, got out of his truck and approached the vehicle. Bretherick's father held up a holstered gun, which led Dunning to return to his truck.

The Brethericks argued that Dunning put his truck in reverse, causing Jared Bretherick to get out and take his father's gun for protection. Bretherick pointed the gun at Dunning, and police later arrived to defuse the situation, according to court documents. The Indiana man then was charged with aggravated assault with a firearm.

In the brief, Bretherick's attorney contended that his client acted justifiably in self defense.

"Even though Jared feared for his life and that of his family, he maintained his composure,'' the brief said. "Jared's response to Dunning's continuous and escalating threats was measured and appropriate while he waited for law enforcement to help him and his family."

But Tuesday, Supreme Court Justice Charles Canady questioned why the Bretherick vehicle could not have moved to a different lane and driven away from the confrontation.

"I'm having real trouble understanding how somebody is trapped and is unlawfully detained or subject to an unlawful confinement in circumstances like that,'' Canady said.