Prosecutors cite Stand Your Ground Law in not charging shooter of Palm Harbor driver

An urn containing Brandon Baker’s ashes sits near a photo of Baker and his brother at the home of their father, Kevin Lindsay.
An urn containing Brandon Baker’s ashes sits near a photo of Baker and his brother at the home of their father, Kevin Lindsay.
Published Sept. 25, 2012

PALM HARBOR — Kevin Lindsay knew that for prosecutors to make a case against the man who shot and killed his son, they needed enough evidence.

It didn't matter that hundreds of people already had condemned the shooter on Facebook or signed an online petition. Or that people drew connection between his son's death and the Trayvon Martin case.

Lindsay, a 53-year-old massage therapist in Largo, thought authorities took the case seriously. But his gut told him a trial might never happen.

"I was right," Lindsay said Monday.

Prosecutors, in a report released Monday to the Tampa Bay Times, said they have decided not to charge an off-duty security officer with any crime for shooting and killing 30-year-old Brandon Baker in March near East Lake Road.

Assistant State Attorney William Loughery concluded that Seth Browning, 23, was "justifiable" in his use of "deadly force" when he shot Baker after a brief roadside encounter.

Loughery's memo cites Florida's "stand your ground'' law, which says people are not required to retreat before using deadly force. But the report also adds that even without that law, Browning still might not have been charged.

Loughery also concludes that despite witness statements to the contrary, the victim "attacked Seth Browning as he sat in his vehicle."

Prosecutors noted that before the shooting, Browning tried to defuse the situation by using nonlethal force — pepper spray. But that "did not deter Brandon Baker's violence," according to the memo.

The memo notes that Browning probably had no ability to retreat.

Seth Browning could not be reached for comment Monday.

The March 6 shooting appears to have some similarities to the case of Trayvon Martin, the highly publicized incident last February in which neighborhood watch volunteer George Zimmerman pursued and fatally shot Martin, 17, in Sanford. Zimmerman has claimed self-defense, but has been charged with second-degree murder.

In both cases, the victims were pursued by shooters who said they were acting as concerned citizens.

Browning's case begins at a New Port Richey bar called Cocktails. Brandon Baker went there to see his girlfriend, Amy Marcellus. His twin brother, Christopher, tagged along. They stopped at another bar, where Brandon Baker had about three drinks, according to his brother and girlfriend.

Around 2 a.m. the three drove south into Palm Harbor in two vehicles. Brandon Baker was first in a white Chevrolet Silverado, with his brother following in a black BMW with Marcellus.

Browning, who had just gotten off work, spotted Brandon Baker and thought he was driving erratically. Browning told investigators he pulled up beside Baker to check on him and gave a "thumbs-up" sign." Browning decided to follow Baker to get his license number.

"It is unfortunate," that Browning followed, the memo said, but "there is nothing improper or illegal in his doing so."

Brandon Baker turned off East Lake Road and stopped. Browning and Christopher Baker followed.

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Brandon Baker got out of the truck, and here the stories conflict. Christopher Baker said his brother walked toward Browning's car, but did not fight or even get near the driver's window. The brother told investigators that Browning pepper sprayed Baker and then shot him.

Browning told investigators that Baker came right up to the car and started punching him — even after he used pepper spray. Browning said he "felt he 'had to end it.' " He grabbed his gun from the glove box and fired one shot, the memo said.

The investigation backed up Browning's version.

Inside the open window of the car, investigators found the marks of someone whose fingers were covered with pepper spray — an indication that Baker did try to get inside the car. Also, the medical examiner concluded Baker was shot from one or two inches away, meaning he had to be close to the car.

Tests also showed Brandon Baker's blood alcohol level at 0.166, about twice the level at which Florida law presumes someone is impaired. Tests also showed Baker had used "a significant" amount of cocaine.

Loughery also wrote that Baker's intoxication made it "plausible" that Baker drove erratically.

Lindsay, Baker's father, said prosecutors told the family of their decision four days ago.

Their words were hard to hear.

Afterward, Lindsay said he and his ex-wife talked about their desire to keep pursuing justice for their son.

"In the parking lot, we both kind of broke down and I hugged her," Lindsay said. "I haven't hugged my ex-wife in years."

They haven't ruled out a lawsuit, Lindsay said.

The family struggles with the notion that Brandon Baker was violent and threatening.

"Brandon, he was always the big goofy guy. I just can't see him being scary," Lindsay said.

"The story Browning told seems to work for a 'stand your ground' case," Lindsay said. "I still doubt it."

Baker's mother, Bonnie Baker, 50, of Palm Harbor, said she is in utter disbelief.

"I'm devastated. I'm broken hearted. It gives me fear in my heart that there will be more Brandons out there, that there will be more Trayvon Martins out there," she said. "My Brandon should have been pulled over by a policeman and arrested for DUI.

"That's what should have happened to my boy that night — not Seth Browning running him down and taking the law into his own hands."

Times researcher Caryn Baird contributed to this report.