Jack Fleischman
Jack Fleischman (Melanie Bell)

A convicted felon shoots a man outside a strip club where they were fighting. The shooter’s lawyer wants to use Florida’s stand your ground law to shield his client from an attempted murder rap.

No way, you say.

But take another look. According to the lawyer, Brian Bragdon, 23, feared he was the target when he grabbed a gun from a vehicle and fired; neither the gun nor the vehicle was his.

BRIAN BRAGDON, PETITIONER, V. THE STATE OF FLORIDA, RESPONDENT

Case no.: 13-2083

Date certiorari accepted: July 2, 2014

Case type: Stand your ground

Court: Florida Supreme Court

Author of opinion below: Per curiam

Lawyer for petitioner: Jack Fleischman, Fleischman & Fleischman, West Palm Beach

Lawyers for respondent: Attorney General Pamela Jo Bondi, Tallahassee, and Assistant Attorney General Melanie Dale Surber, West Palm Beach

Panel: Chief Judge Dorian K. Damoorgian and Judges Robert M. Gross and Jonathan D. Gerber

Originating court: Fourth District Court of Appeal

“He did what he felt was necessary to save his life and the lives of others. Why shouldn’t he be allowed to take advantage of the stand your ground law?” asked Jack Fleischman of Fleischman & Fleischman in West Palm Beach.

“This is why I do not own a firearm or carry a gun, because the Legislature comes out with these laws that are supposedly to protect you and then when you use it they charge you with a crime,” Fleischman said.

He says a convict may arm himself in an emergency and a long line of cases recognizes the defense of necessity or duress.

However, Fleischman’s argument failed to persuade Palm Beach Circuit Judge Charles Burton or the Fourth District Court of Appeal.

The appellate court didn’t even bother to issue a full opinion. It published an unsigned, two-paragraph ruling that cites a previous Fourth District PCA (per curiam affirmed). The Bragdon PCA certifies conflict with Little v. State, a 2013 decision for the defense by the Second District Court of Appeal.

A compelling case

The Fourth District said the disputed issue is “whether a defendant engaged in ‘unlawful activity’ is precluded from claiming self-defense immunity from prosecution,” quoting the stand your ground law, Florida Statutes Section 776.032(1).

Enter the Florida Supreme Court, which accepted jurisdiction of the Bragdon appeal July 2. The justices have a politically fraught matter to resolve: Should a problematic law’s protection extend to the unpopular category of felons?

In the Little case, the defendant’s compelling story influenced the outcome.

Aaron Little was walking to his girlfriend’s house with a friend with they came upon a third man standing in his mother’s driveway, talking to someone in a car.

Suddenly Demond Brooks jumped out of the back seat, pulled two handguns from his waistband and told Little he was “going to make it rain.” Brooks had threatened Little before.

Little asked for help with Brooks. When no one responded, Little ran into the house. Brooks stood on the porch steps and yelled for Little to come outside.

Little pulled a handgun from his pocket. When the older woman of the house saw that Little was armed, she demanded he leave. Despite Little’s pleas, her son also ordered him out of the house.

Seeing no other exit, Little reluctantly left through the front door. He backed away from Brooks, who kept his guns at his sides until Little approached a car.

Brooks pointed his guns at Little. Little raised his gun, closed his eyes and fired several times, striking Brooks. Brooks died from his wounds.

“Had Mr. Little not done what he did, he would be dead today,” said Philadelphia Beard, his Fort Myers public defender. “He did everything right.”

Little was charged with second-degree murder with a firearm. Since he had a record—for minor crimes, Beard says—possessing a gun constituted “unlawful activity.”

Lee Circuit Judge Alane Laboda denied Little’s motion for stand your ground immunity.

By entering the house Little neutralized the threat, yet he “chose to arm himself and re-engage” Brooks, the judge reasoned.

Reversing Laboda, the Second District found “there is no evidence whatsoever that Little re-engaged Brooks” or that “Little made any threatening moves toward Brooks or said any threatening words to him.”

Statutory deconstruction

Clearly the judges were on Little’s side, but they had a problem: One section of the stand your ground law, 776.013(3), says it applies when a person who uses defensive force against an imminent threat “is not engaged in an unlawful activity.” Another section doesn’t mention this limitation.

Writing for the panel majority, then-Chief Judge Morris Silberman ticked off the elements of statutory construction and concluded the section that’s silent about unlawful activity helped Little.

“Section 776.012(1) provides another means of obtaining immunity for individuals who would not qualify for immunity under section 776.013(3),” he wrote.

In a concurrence, Judge Stevan Northcutt said it wasn’t necessary to parse the statute to discover one harmonious whole. He focused on the law’s use of the disjunctive “or” to conclude the Legislature intended two “independent justifications for the use of deadly force.” One covered Little.

After enduring jail for three years, the last 18 months awaiting the Second District ruling, “Mr. Little is a free man,” Beard said happily. The Attorney General’s Office did not seek an appeal.

No matter how the fine print is interpreted, stand your ground remains controversial. The furor over George Zimmerman’s fatal shooting of unarmed teen Trayvon Martin in 2012 and Zimmerman’s subsequent acquittal has not died down.

“It seems like there’s a constant commotion over the law every few months,” said Fleischman, Bragdon’s lawyer. “I’m sure the Legislature will at one point tweak it one way or the other.”

Beard hopes any tweaking won’t come at the expense of young men like Aaron Little.

“If the Legislature wants to change the rules and say that convicted felons should be able to be shot down in the streets…

“I know that race is an issue,” she continued, “but Mr. Little is a black man and that law worked for him.”