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Miami Judge: Florida's 'Stand Your Ground' Burden of Proof Law Unconstitutional

July 3, 2017 - 6:00pm

A new law shifting the burden of proof in “Stand Your Ground” cases violates the Florida Constitution, a Miami judge ruled Monday.

Miami-Dade Circuit Judge Milton Hirsch said the responsibility to shift the burden of proof in Stand Your Ground cases rested with the Florida Supreme Court rather than state legislators. 
“As a matter of constitutional separation of powers, that procedure cannot be legislatively modified,” Hirsch wrote in a 14-page order.

Just weeks ago, Florida lawmakers voted to pass the bill after years of attempts to muscle the legislation through the halls of the Florida Capitol. Gov. Rick Scott hopped on board with the bill, swiftly signing it into law last month.

The new defendant-friendly law would give defendants more protection from prosecution in “Stand Your Ground” cases by requiring prosecutors to prove whether a defendant is entitled to immunity at a pretrial hearing in order to disprove a claim of self-defense immunity. 
The legislation would flip the responsibility onto the prosecutor to prove why a defendant shouldn’t be allowed to use the Stand Your Ground defense in court.
Republicans pushed the burden of proof bill for years but didn’t have much success until this year’s regular legislative session, when lawmakers finally passed the bill along party lines. 
The proposal came on the heels of a 2015 Florida Supreme Court decision which ruled defendants would be responsible for the burden of proof showing they shouldn’t be prosecuted in “Stand Your Ground” cases.
The bill’s Senate sponsor, Sen. Rob Bradley, R-Fleming Island, filed identical legislation during last year’s legislative session and initially, the bill’s future seemed promising.
The measure had a relatively easy time making its way through the Senate, but it did not fare as well in the House, where it stalled out in the House Justice Committee, flopping due to a 6-6 vote.
This year state reps pushed the bill through the Legislature once and for all. Rep. Bobby Payne, R-Palatka, spearheaded the bill in the House while Bradley once again sponsored the Senate version of the bill. The National Rifle Association was quick to endorse the measure, putting significant weight behind the legislation to get it passed. 
Florida’s “Stand Your Ground” law has been on the books since 2005, but it garnered national attention in 2014 during the Trayvon Martin case when defendant George Zimmerman claimed he was using self-defense when he shot the black teenager to death in Florida. 
Zimmerman was acquitted for the crime.
Republicans chimed in on Monday, unhappy with the Miami judge’s decision.
“It is the role of the Legislature to write the laws that govern how Floridians may exercise their statutory and constitutional rights,” wrote House Speaker Richard Corcoran, R-Land O’Lakes, on Twitter. “The Florida House will continue to stand with ordinary citizens who exercise their right to self-defense.”
A spokesperson for Attorney General Pam Bondi said Bondi’s office would appeal Hirsch’s decision.

Rep. Payne said he didn't see how legislators had crossed the line when making the law.

"We acted lawfully and did not overstep our authority," Payne told Sunshine State News Monday. "[It's] doubtful as it goes through the appellate court that his ruling will be upheld.  We were well within our Constitutional Authority and remain committed to the outcome that was passed into law this year."



Reach reporter Allison Nielsen by email at or follow her on Twitter: @AllisonNielsen.


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This "Judge" is very much like many tens of thousands of "New York LIBERAL Jewish Lawyers" who have no belief in NATURAL RIGHTS of all humans born on Earth. What are "Natural Rights"? Very simply, rights to search out sustenance (food and water), to find a place to safely rest, and the right to protect themselves from danger --- even MORE to the point, the WILL TO LIVE! This sad old man is defying the Laws of Nature given to us by our Creator.

this is surely not the end of this argument...

TO; Judge Milton Hirsch ;..........You are evidence that our Constitution is under Attack............Judges do NOT write Law. The Legislators do so, and did so in this case. Your interpretation, though Flawed, is the extent of what you are granted , by the Power of People, to do. We all hope that higher court Judges will correct the extreme Error of your ways.

With all the judicial activism afoot, undermining the will of the People, is it no wonder that the legislature had to go back and spell it out for the gun control zealots? Reaffirms why I never vote to retain a judge.

The point is that the legislature was attempting to make prosecutors into defense attorneys. In this sense, judge was correct about the constitutionality of the ruling. If prosecutors have to "prove" a person's innocence who committed what would otherwise be a crime, the system is now upside down. That is the job of defense attorneys. Thinking with reactions based on an emotional response to any issue is never a good idea. This is why we have a legal system in this country.

"Stand Your Ground" was long ago 'Legislatively created' !... For liberal Judge Milton Hirsch to NOW thrust his "2 cents" into this issue is abominable, and a sorry quest for personal media attention for a "South" Florida panderer on the outside chance he will be able to make the "short list" for a Supreme Court seat (somewhere) should some Democrat politician remember his name... (which is "Mud" folks...REMEMBER it next time you "elect" to "continue" judge [ANY judge] on his "court perch" when you vote AND know ABSOLUTELY NOTHING about him or his "decision record"). "Stand Your Ground" was originally 'Legislatively created' and then 'Legislatively aborted' (after the thug "Travon Martin" case) by liberal pettifoggers; and now "Here come the judge !" to 'act' like the "savior of the ALLEGED downtrodden", and hopeful of having his name "inscribed in the books" (and THAT'S what it's ALL ABOUT Folks)... Well Judge, congratulations, your name has made the "big time", it's inscribed in the "Peoples Book"...and THAT makes it an inescapable "collective memory" !

Its about time that this reporter be removed from SSN as she is incapable of reporting accurately Her biases and prejudices get in the way of reporting facts what ever they may be That so many of the PUBLIC point out her errors shows how useless Alison is How can it be unconstitutional when, like every other case in the land, the prosecution has to prove guilt and previously only SYG cases did the defendant have to prove innocence

Hey Allison, sloppy reporting. Zimmerman never claimed SYG. But you guys in the media are too lazy to figure it out and think every case is SYG.

Juggs is not a reporter, she's a junior college sociology graduate.

ha....typical Left Wing democrat judge....doesn't know the law or constitution ...just his Left wing idiot mind...just like state attorneys that DONT try cases with the Death Sentence...after killing FEMALE Deputy.....hoorah NRA...Gov.Scott & AG pam the Left wing Snowflakes out of Florida.....

Do judges have to actually attend law school classes? Judge Milton Hirsch must have been absent when they went over the old "separation of powers" stuff. The part about which branch actually makes law seems to have escaped his attention.

A few impeachment judicial scalps every year would do wonders.

Usual Judicial crap, We're the more powerful of the "co-equal" branches!

What a maroon judge. The legislature can change a law at any time they choose except when a constitutional right is being circumvented. Only a 2nd Amendment right is being enforced here with the new SYG. No infringement here, just giving a more precise understanding of the 2nd Amendment right.

Maroon is a color, moron is what you were grasping for. SYG has nothing to do with the 2A. You can stand your ground with an ax or a golf club. You are a maroon.

Another judicial activist from the bench! Liberal freak.

this judge got it wrong. Legislature passed a Constitutional Bill that Governor Scott correctly signed into law. this miami-dade county judge is wrong. Perfect example showing how wrong this miami-dade county judge is? See history of Fla. Stat. 768.0755 (slip and fall statute). Courts across the state ruled it was procedural in nature rather than substantive (burden-shifting). Florida Supreme Court did not need to rule on 768.0755. Same logic should apply to this fact pattern.

There is a paragraph in this article that perpetuates a falsehood: "Florida’s 'Stand Your Ground' law has been on the books since 2005, but it garnered national attention in 2014 during the Trayvon Martin case when defendant George Zimmerman claimed he was using self-defense when he shot the black teenager to death in Florida." Zimmerman's trial DID bring national attention to Florida's Stand Your Ground law. But It shouldn't have because Zimmerman DID NOT invoke the Stand Your Ground Law at trial.

Correct me if I'm wrong, but the judge disallowed the SYG held initially by Zimmerman, where it shouldn't have been the judge's choice. Florida's SYG statute was too flimsy for Z's defense. They opted to just use self-defense instead?

Yes, that's correct. The paragraph isn't factually incorrect because he actually did use a self-defense claim.

A "self-defense claim" and a "Stand Your Ground claim" are vastly different under the law. The Stand Your Ground law was never invoked at trial as most people erroneously believe.

Comments are now closed.


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