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Judge Rejects New Florida ‘Stand Your Ground’ Law
July 5, 2017
A Miami judge has ruled that a change to the state’s “stand your ground” self-defense law signed nearly a month ago by Gov. Rick Scott, intended to better protect the rights of defendants, is unconstitutional.
Supporters of the controversial law, approved by the GOP-dominated Legislature earlier this year, called the ruling “a notable setback” and predicted an appeal.
“I’d be surprised if this decision wasn’t overturned by the appellate court,” Fleming Island Republican Sen. Rob Bradley, a former prosecutor who sponsored the legislation, said after the ruling by Miami-Dade Circuit Judge Milton Hirsch.
In a 14-page order, Hirsch wrote that the Legislature overstepped its authority with the change, which involves pre-trial burden-of-proof.
The statutory change violates Florida’s separation of powers doctrine because it amounts to a “procedural” revision, something that must be handled by the Florida Supreme Court, Hirsch wrote.
While the Legislature makes “substantive” law, the judiciary is in charge of procedural matters, the judge wrote.
The constitutional separation of powers bars the legislative, judicial and executive branches from exercising powers consigned to another branch, Hirsch explained.
“It applies whether the purposes of the overreaching branch of government are benign or otherwise. It applies even when its application prevents a seemingly salutary change in law from becoming law. It applies in such cases because experience with government has shown that any momentary benefit expected from a change in law is usually outweighed by the lasting detriment resulting from a change in our constitutional system of checks and balances,” he wrote.
The new law, the only major gun-related measure to advance this year, shifted the burden of proof from defendants to prosecutors in the pre-trial hearings.
In “stand your ground” cases, pre-trial evidentiary hearings are held to determine whether defendants should be immune from prosecution.
Critics argued, in part, that the change would lead to cases ending before all the facts are revealed.
Proponents of the bill, supported by groups such as the National Rifle Association, said shifting the burden of proof would better protect the rights of defendants.
NRA lobbyist Marion Hammer, a former president of the national organization, said it was difficult to comment on the ruling.
“It is so bad I’m at a loss for words,” she said.
Bradley, who backed the change the past two sessions, said the law simply cleared up an ambiguity found in the original 2005 “stand your ground” law, the first of its kind in the nation.
Bradley said the legislation (SB 128) was drafted as a response to “clarify” what he called a misinterpretation of “stand your ground” by the state Supreme Court, in a case known as Bretherick v. State.
The Florida Supreme Court ruled in July 2015 that people who use the defense have the burden of showing they should be shielded from prosecution. In “stand your ground” cases, pre-trial evidentiary hearings are held to determine whether defendants are immune from prosecution.
Under the new law, which applies retroactively, the burden of proof is on prosecutors.
“Once the Legislature filled in the blanks, which is what we did, that certainly was an action that was within the appropriate purview of the Legislature,” Bradley said.
House Speaker Richard Corcoran, a lawyer, also predicted that the circuit judge’s ruling would be overturned.
“It is the role of the Legislature to write the laws that govern how Floridians may exercise their statutory and constitutional rights,” Corcoran, R-Land O’ Lakes, said in a statement. “The Florida House will continue to stand with ordinary citizens who exercise their right to self-defense. We look forward to this decision being reversed on appeal.”
Scott spokeswoman Kerri Wyland said that the governor’s office was reviewing the decision.
During debate on the measure earlier this year, Democrats labeled the self-defense proposal “a shoot to kill” and “how to get away with murder” bill.
The proposal was approved along party lines on the final day of the regular legislative session that ended early in May.
“Yet another ill-conceived law rammed thru the legislature by GOP is ruled unconstitutional,” Rep. Carlos Guillermo Smith, an Orlando Democrat, tweeted shortly after Hirsch’s ruling.
The “stand your ground” law has long been controversial. It says people can use deadly force and do not have a duty to retreat if they think it is necessary to prevent death or great bodily harm.
Lucy McBath, faith and outreach leader for Moms Demand Action for Gun Sense in America, called the ruling “a notable setback in the dangerous expansion of `stand your ground’ laws.”
“Florida is one of the few states to expand or enact a Stand Your Ground law since the senseless killings of my son, Jordan Davis, and Trayvon Martin,” said McBath, who attended a number of committee hearings on the bill this year. “We must continue to fight for the safety of our communities, and we must continue to fight for justice.”
by Jim Turner, The News Service of Florida
Comments
20 Responses to “Judge Rejects New Florida ‘Stand Your Ground’ Law”
This so called judge was duly elected by the citizens of Miami/Dade County, and can be voted out at the next election. As a Circuit Judge, his ruling only applies in cases in his circuit, and does not apply in the rest of the State of Fl. Hopefully his ruling will be overturned when it gets to the Fl. Appeals Court.
REGARDING:
“Thomas Jefferson said “JUDICIAL TYRANNY” would make the constitution a thing of wax.
“This is a prime example of judicial tyranny…judges making law.”
There is a big difference.
Tyrants have armies to enforce their tyranny. Judges have pens and ink (well, maybe printers and email accounts) with which to issue opinions. They only have the power of persuasion to convince others to listen.
The ability to enact laws is limited by the Constitution and the Constitution states: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
“…the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Mind you, the case is not settled until the US Supreme Court settles it either by ruling on the matter or refusing to rule on it, letting lower judgments stand.
Not every right and freedom should lie in the hand of legislators, especially since they have a history of corruption and disregard for the rights of citizens in favor of whomever last made them a large “donation” (sometimes called “bribe”).
David for valid arguments, honest courts, freedom from fear
A Dade county DELETED, attempting to tell us Panhandle Christians how to live.
You need to worry about your people Judge Hirsch and leave us be; as these are the types of disagreements that make people, start looking , at those people who oppose them and their philosophies that compel them to do so.
Thomas Jefferson said “JUDICIAL TYRANNY” would make the constitution a thing of wax.
This is a prime example of judicial tyranny…judges making law.
It appears this judge has no regard for the Florida legislature.
I reject the leftist judge’s decision. I’ll still stand my ground…even against government, if need be.
Bad guys are bad guys, and all will be treated just the same.
REGARDING:
“to antagonize a situation till it meets the SYG threshold — as I believe happened in the Martin-Travon case..”
George Zimmerman saw a stranger wandering around after dark in the rain. It seemed to him the stranger was looking in windows. He reported the suspicious activity. They had no interaction other than each watching the other until Trayvon Martin knocked Zimmerman down and was pounding his head into the concrete while Zimmerman cried out desperately for help which never came. In desperation, he shot the attacker. Forensics showed Trayvon was leaning over George when he was shot.
Zimmerman did not cite Stand Your Ground during his trial. Multiple blows to the head may have impaired his thinking at the time, may have caused permanent brain injuries since then. Regardless, George had just as much right to walk around as Trayvon did. Most concentrate on the right Trayvon had to walk around; he DID as long as he wasn’t trying to beat someone to death — which he was.
David for truth
I am thankful the law changed just in time for a recent “stand your ground case”. This has given the opportunity for the D.A. to look at the case and hopefully proceed with appropriate charges on the shooter. The police investigation wrapped up with yhe case being set to close and this is absurd based on what I saw and heard. People are trigger happy.
I just wished there were no bad people for even needing a gun. They call humans civilized…
When you don’t like something, you blame LIBERAL. That the big go to just like TRUMP. Might it not be common sense, Logical or part of the standing law. When it comes to a gun, anything goes. Not enough people being killed, just this am there was report of a policeman shot in the marked car. Something is lost when you have to have a gun.
That’s right folks, the pols don’t run this country, judges do.
Florida has not become the bloodbath some might claim, after this law was enacted.
It is liberal when a judge becomes an activist and oversteps his constitutional authority.
No one with a reasonable, sane mental condition wants to go around killing folks.
Folks deserve the right to defend themselves. Legislatures have the authority to enact laws pursuant to the respective constitution; judges have the authority to rule on facts of law related to that constitution.
Not too hard.
They forget why the “stand your ground” law was enacted.
And I’m laughing at the comment one stated about it being “unconstitutional”.
“Yet another ill-conceived law rammed thru the legislature by GOP is ruled unconstitutional,” Rep. Carlos Guillermo Smith, an Orlando Democrat, tweeted shortly after Hirsch’s ruling.” — Really? What part?
That people have a duty to retreat if they are threatened by others? Because the person threatening has the right to violate other’s rights?!
The judge only stated that it was the pretrial “burden of proof” hearing that was a
“procedural” revision, was something that must be handled by the Florida Supreme Court. That’s all.
Scott Bustello demonstrates breathtaking ignorance of general knowledge and an overwhelming cuckology to the mammy state. IOW, Scott Bustello is a crybaby.
Another liberal Judge imposing his own view of what the law should be, rather than interpreting and ruling on the laws as they are written.
I agree with SYG laws but would like a common sense law stipulating that it is not leagal to antaganize a situation till it meets the SYG threshold — as I believe happened in the Martin-Travon case.
Judges, the same folks that turn criminals loose on society. You gotta have em, but they need common sense.
Why is it “liberal” to have laws that make sense?
Y’all just want to shoot someone and get away with it, right?
Duhhhhhh…………….
Countries with sensible gun laws have a fraction of gun violence. Are Americans too exceptional to look at their example? Winston Churchill said ” Americans always do the right thing. After they’ve tried everything else”.
State of FL turning into one big gun range…good luck!
Is this judge another one of our wonderful liberal judges that keeps their head where the sun refuses to shine.