Florida ‘Stand Your Ground’ Provision Deemed Unconstitutional

Miami-Dade Circuit Judge Milton Hirsch (Photo: Fox 35)

A Florida judge has ruled that a new provision in the state’s “Stand Your Ground” law is unconstitutional because the legislature overstepped its rightful authority when it increased protections for defendants in self-defense cases.

Earlier this year the Florida legislature passed an amendment to its 2005 SYG law. The amendment stated that the prosecution carries the burden of proof in pre-trial hearings of self-defense incidents. According to the updated law, prosecutors have to provide “clear and convincing” evidence that a defendant was not using force as an act of self-defense.

Miami-Dade Circuit Judge Milton Hirsch ruled on Monday that the amendment is unconstitutional, stating, “As a matter of constitutional separation of powers, that procedure cannot be legislatively modified.”

The Florida legislature passed the amendment in response to a 2015 decision by the Florida Supreme Court. In that decision, the court held that defendants are not innocent until proven guilty in pre-trial hearings. Defendants must prove their innocence with evidence that suggests the shooting was legal self-defense.

Judge Hirsch found that the changes to the law were “procedural,” meaning only the Florida Supreme Court has the right to make them, as they did in 2015.

Hirsch’s decision doesn’t overturn the law, but it does begin the process that could end with another decision by the Florida Supreme Court.

Sen. Rob Bradley, R-Fleming Island, told the Miami Herald he believes the legislature acted lawfully and the appeals process won’t reach the highest court in the state.

“I would be surprised if this decision were upheld at the appellate level,” said Bradley, a former prosecutor who championed the amendment in question.

SEE ALSO: Hillary Clinton Talks ‘Stand Your Ground’ Laws Before Black Voters

Prosecutors were vehemently opposed to the “Stand Your Ground” modification, arguing that the law would require them to try the case twice and make it easier for criminals to skate on violent charges. Since the defendant is asking for immunity from prosecution, they argue, the defendant should be required to prove they acted in self-defense.

“The state would be proving the case twice,” Republican Senator Anitere Flores said at the time of the amendment’s passage. “There’s a strong concern that many more defendants will invoke the Stand Your Ground defense because they know it will shift more work onto the state attorneys on the front end.”

But the amendment’s proponents argue that the state should not draw a distinction between seeking immunity at pre-trial hearings and pleading innocent at the trial itself.

“What this bill does, senators, is put the burden of proof where I would, respectively, suggest it should rightfully be,” said Sen. Bradley in May. “From the beginning of a criminal case to the end, [it] is with the state, and that the standard of proof [should] be beyond a reasonable doubt.”

About the author: Jordan Michaels has been reviewing firearm-related products for over six years and enjoying them for much longer. With family in Canada, he’s seen first hand how quickly the right to self-defense can be stripped from law-abiding citizens. He escaped that statist paradise at a young age, married a sixth-generation Texan, and currently lives in Tyler. Got a hot tip? Send him an email at jordan@gunsamerica.com.

{ 20 comments… add one }
  • Mark July 8, 2017, 4:25 am

    Another liberal judge who must go. Appeal to U.S. Supreme Court. A defendant is ALWAYS innocent until proven guilty. The burden of proof is on the prosecution. This judge is not qualified to sit if he doesn’t know or intentionally follow the Constitution.

  • Andrew N. July 8, 2017, 1:12 am

    Funny, I always thought the “burden of proof” was ALWAYS on the prosecution. When did “Innocent until PROVEN guilty” become guilty until proven innocent? WTF is happening to this country?

  • DonM July 7, 2017, 5:24 pm

    This case is another example of the intentional manipulation of established laws by really bad people. Let me explain, The constitution states that any law that is established or has any amendments that contain vague or confusing language so that the layman, or ordinary citizen cannot interpret the same, shall be deemed null and void.

    It is time that all laws that require the continuous debate before the courts to be abolished. A citizen has the right to self defense. The established laws of man also do not expect any person to run away from a harmful person to escape an attacker.

    If someone attacks you with intent to cause you severe and or permanent bodily harm a defender has the right to use what ever force is necessary to neutralize the attacker. If the attacker dies as a result of attack on the innocent person, then that is to bad for the attacker.

    People must realize that in countries where self defense is not legal, there are no gun rights either. If there are any gun rights, they are so restrictive that the laws are de facto disarmament Do your own research, as just in England alone there have been people that have been repeatedly burglarized, and being fed up with the burglaries have shot and killed burglars inside of their homes. These same people have had their lives turned upside down and even put in prison for defending their property or their lives.

    I feel that we really need to return to the laws of the early frontier days in the USA, starting with car thieves being hung.

    Currently we citizens are victims of a self serving government, court, and penal system that only seeks to continue to expand their power and influence over our lives. As a result our rights are under attack every single day. With very few exceptions most of the working class citizens of this country are nothing more than indentured servants.

  • Michael A. Gilliam July 7, 2017, 3:26 pm

    At some point it will be safer just to dispose of the body if you are forced to defend yourself in your own home. It’s not like anyone should be looking for them in YOUR home anyway.

  • Willard July 7, 2017, 2:07 pm

    Judge “Hirsch”.

    This is my shocked face.

  • Citizen Main July 7, 2017, 11:55 am

    First, when you use the descriptive word Liberal, you should be using its proper identifier….COMMUNIST. That’s much better..The rest is well understood by real leftists who are Americans and not told how to think and act as directed by self serving anti Americans. You Democrats start being Americans and we won’t be having these types of scenarios so frequently. Therefore, politicians and judges are directed how to respond by their keepers. In this case, whats good for the chosen few. John Belucce (sic) said …..”Wise Up” Nut Said…. …….Peace. CM

  • Dexter Winslett July 7, 2017, 11:52 am

    Hang the judge.

  • Grant Stevens July 7, 2017, 11:09 am

    The sole purpose of government is to protect and defend the Constitution of the United States, not rewrite it. “Shall not be infringed” means just what it says, legalistic double-speak notwithstanding. Any law, court ruling, executive order, bureaucratic regulation or foreign treaty that infringes upon the unalienable right of American citizens to “keep and bear arms” is null and void. This case was closed in 1776.

  • Ringo Lapua July 7, 2017, 10:55 am

    A federal law needs to be enacted which would PROHIBIT ALL district judges (federal and state) from ruling on state and federal laws in place as voted by their legislatures and signed by the governor or president.

    • DaveGinOly July 7, 2017, 1:38 pm

      In at least three places in Madison’s Notes of Debates in the Federal Convention as many different delegates mentioned that the courts would review the laws and strike down those not consistent with the constitution they were creating. When this point was raised, not once was any sentiment expressed in opposition. Judicial review in which a court prevents the state from doing that which it is not authorized to do is essential to our system. Judicial activism, in which a court orders the state to do that which legislature has deigned not to do, or that which is not authorized by a constitution, was not contemplated by the founders.
      Without judicial review, what would you think of a popular vote to ban firearms?

  • Maha July 7, 2017, 10:54 am

    Guilty until proven innocent is the standard by which liberals judge gun owners, conservatives, heterosexuals, successful businesses, practicing Christians or Jews, and anyone who voted for Trump or said a disparaging word about the Hildabeast.

    • Dargo July 7, 2017, 9:38 pm

      Guilty , yes, in two accounts: Ignorance and Pure Stupidity under the aggravating factor of Mental Retardness disguised under the motto of ” Making America Greater Again”

  • Randy July 7, 2017, 10:45 am

    Please for the love of God, lay off the sensationalized headlines! Yours reads that the entire Stand Your Ground Law has been revoked. There’s just no need to make me barf before breakfast. Within the letter of the law you are correct. A “Provision”. But the way it reads it’s the whole provision of Stand Your Ground.

  • Ed I July 7, 2017, 9:44 am

    That a liberal Miami Judge made this ruling should be of no surprise, Most liberals believe the only Constitutional rights needing protection are those they make up, Prosecutors hate this clarification amendment because that means they must do their job from the start. The left will continue to trying a chip away at our Second Amendment rights until they can convince someone to confiscate all our guns.

  • Nick July 7, 2017, 9:21 am

    So the legislature, which exists in separation of powers, to make the laws, over stepped its bounds in making the laws? You can’t make this stuff up. This is why you never vote Democrat. You get judges like this. And this rebuke is not an endorsement of the GOP. See John Roberts for reference.

  • Infidel762x51 July 7, 2017, 8:02 am

    I don’t understand how a local “judge” can overrule the state legislature? It seems they are all a bunch of crooks. First, once elected it is almost impossible to get rid of them, then they deem it a mistrial if someone has the unmitigated gall to inform the jury of their powers to decide the law, and now they want the law shifted from innocent until proven guilty to guilty until proven innocent.

  • Jay July 7, 2017, 7:45 am

    We don’t need some self righteous judge (who carries a gun) or new laws to tell us I can defend myself and my property! We already have that in the second amendment, Period!

    • Eldyn Boyd July 7, 2017, 4:54 pm

      I’m not sure who, or if anyone at all will read this, but it needs to be said. Everyone is created equal. No one is better than their fellow man. But a lot of politicians, including this pin headed judge, think that they ARE better than everyone else by keeping their guns and taking ours! What makes this judge believe that his sorry carcass is more worthy of protection than the next man’s??!! This is a self righteous man with an agenda; and that is CONTROL! If brains were dynamite, this judge wouldn’t have enough to blow his nose!!!

    • Dargo July 7, 2017, 10:01 pm

      Well, let’s be clear on this matter. If a dumb drunk person would try to open my front door, there are various methods to get rid of it but there would be no justification on shooting or killing that person. But if a person or even worse a group of people will try to break in my house without my permission during the day or even better during the night, then I found legitimate an ” in force” action by shooting at them and eventually killing them if they continue on their invasion.

  • Bob Redman July 7, 2017, 6:59 am

    Good job, Sen. Bradley, and Sen. Flores can go to hell.

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