Controversial Miami-Dade Circuit Judge Milton Hirsch (above) intensely dislikes the “stand your ground” concept. So much so that on Monday, he ruled the Florida legislature doesn’t have the power to regulate the state’s “stand your ground” law.
The Florida legislature passed a reinforced SYG law earlier in 2017.  The new law stems from prosecutorial abuses where people who were clearly justified in using force for self defense were put through the criminal justice system, even though there was a slim chance of a conviction in the courts.
Armed self-defenders charged with a firearms-related crime faced years of legal jeopardy, costs and uncertainty. It was punishment by process. As a result the legislature removed the power from prosecutors and gave it to judges, to prevent this kind of abuse.

The problem for opponents is that “stand your ground” laws have been very popular. Two thirds of the states have some version of the law. The elimination of a requirement to retreat in the face of deadly force has long precedence in the United States, starting with a Supreme Court ruling in 1895.

Judge Hirsh’s decision cites English precedence and some American cases to the effect that there is a requirement to retreat. But he completely ignored the 120 years of precedence in the Supreme Court that supports the SYG laws.

From miamiherald.com:

Hirsch found that the changes to the law were “procedural,” meaning only the Florida Supreme Court has the right to make them.

Click here to read more.

The ruling cites this part of the Florida Constitution, and makes the claim that the Legislature is changing a rule of the court, rather than making a law. From Ballotpedia.com:

    Text of Section 2:

Administration; Practice and Procedure

(a) The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. The supreme court shall adopt rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

Senator Rob Bradley, a former prosecutor and current member of the legislature, disagrees. He’s the author of Florida’s SYG law.“I would be surprised if it were upheld on appeal,” he told usf.edu.

If the courts rule that the Florida legislature overstepped its authority in this case, the Florida legislature could reform the law, making it similar to law in Washington state.

In Washington, if a defendant is found not guilty after a self defense claim is made, the state pays the court costs and legal fees of the defendant. This would be another check on the power of prosecutors to punish defendants with process costs.

 

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included. Gun Watch

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49 COMMENTS

    • Judges are maroons and rubes? Isn’t that redundant (judge and maroons/rubes)?!?!?!? Oh, you said maroon robes.

  3. “Florida Judge Rules Legislature Lacks Power to Make ‘Stand Your Ground’ Law”.

    Then the court lacks the power to interdict it.

    Just another bunch of your POS (D) ahole neighbors who needed a job trying to do tyranny on you.

  4. Too bad he has no right touching this without a case being presented to him…who does this clown think he is? THREAT DELETED. Anti-Constitutional asshole.

    • I think it’s high time that the upper class citizens be held accountable or breaking state and federal law. Along with all these politicians as well. If any of us tried to do some crazy stupid crap like this we’d be in prison but as long as you if you have enough money or enough connections just goes on by. Hopefully this will be thrown out on a pill. The problem is we’re stuck with this moron sitting on a bench thinking that he’s King Henry II. LOL so you know we have an anti Gunner I feel sorry for any people that have to go before him that use stand your ground they’re going to have an uphill fight both ways in the snow LOL.

      • I live in Florida and I think if you use stand your ground the prosecutor has to come up with a certain amount of evidence before he can even put you in front of a grand jury. Unless the situation is very gray where situation is unclear to the prosecutor and possibly could go either way that’s where you get into a little bit of trouble. Usually if it’s really cut and dry the police do their investigation give the information over to the state’s attorney and if the state’s attorney thinks he has enough evidence to prove murder or attempted murder or assault with a deadly weapon or manslaughter or anything like that they’ll go ahead with the trial or two open a grand jury with an indictment. Now the grand jury may find no evidence of wrongful doing and throw the case out right there. But like in the George Zimmerman case the news media kept bringing up stand your ground even when their own hired attorney that was interviewing one of the newscasters told the news personnel that it was not stand your ground stand your ground was not used in this case whatsoever you are incorrect by keep continuing to ask me this question and just shut down the reporter. And then later on she repeated stand your ground when it was a clear-cut case of self-defense.

        • Under FL law, NO grand jury is required except in cases where first degree murder is charged. The Zimmerman case that you mentioned did not proceed from a grand jury indictment.

    • How is it a threat to say what I think the citizens of florida should do to a tyrant? Last I knew, tyranny was punishable by death…is it not? Buncha pussies.

      • Please keep in mind that anything you put on the Internet can be used against you in a court of law. Also keep in mind that TTAG must be mindful of both its anti-flaming editorial stance and legal status.

        • I for one appreciate that. I read TheFedefalist daily (like many TTaG readers, I’m sure), and while there are some awesome discussions in the comments, I hate how often I have to scroll and scroll and SCROLL just to get past a couple of idiots trading insults. It’s annoying, reflects badly on us, and lowers the standard of discourse (yes, I know the left has slaightered that standard with a machete. They’re also losing, BIG TIME). So thanks, Robert

        • It is a shame that censorship and fear of government has become the norm for those that have “conservative” leanings. Not such fear exists for the “left” that spout hate against gun owners (I remember well enough the hate speech against NRA members and death wished on them on facebook and twitter after Connecticut’s massacre). The left has eroded the first ammendment so badly that it is a crisis to speak your mind. Clinton in the 90s started really ruining things and 8 years of obama did damage. Remember the rodeo clown that has to get sensitivity traing for wearing an obama mask?

      • I hate this Tyrant as much as anybody but you gotta be careful what you say online these days man. Some liberal will report you and this site to the police the first chance they get. Trash this tyrant judge as much as you want but even suggesting threats these days can get you into trouble.

      • Ed, it is easy to trade insults online, but I would wager you are what is known in the wild as a keyboard commando, and would never do it to someones face.

    • Why do you think there is no case before him? No jurisdiction in the country allows this.
      This particular ruling stems from the curious case of Liletha Rutherford. The state charged with aggravated assault with a firearm and grand theft after she pulled a gun on a couple with whom she initiated an argument.

  6. “In Washington, if a defendant is found not guilty after a self defense claim is made, the state pays the court costs and legal fees of the defendant.”

    Let me fix it for them ….. if a defendant is found not guilty after a self defense claim is made, the PROSECUTOR PERSONALLY pays the court costs and legal fees of the defendant, and any monetary damages resulting from his/her loss of employment or reputation. No taxpayer funds will be expended.

    Why should tax payers have to foot the bill for the stupid actions of criminal politicians?

    • I am NOT a lawyer, but two reasons come quickly to mind:

      1. If the prosecutor does not personally have the resources to cover the defendant’s expenses then the defendant is doubly screwed and must again seek and pay for lawyers and suits and legal remedies to receive payment. In the course of which the Prosecutor will undoubtedly declare bankruptcy and the defendant can go piss up a rope – no funds = no payment to debtors.

      2. The taxpayers are the ones who hired (voted for) the prosecutor and put him in that position to in theory do their business in the courts. There are a lot of political reasons why prosecutors may lose their jobs in the next election. Lots of publicity about losing these sorts of cases and the amount of taxpayer money it has cost the state/county/city would be a marvelous way to get these hacks sent back to chasing ambulances.

    • Thus, we are now at the point where even judges might as well be Economists. (Put 12 Economists in a room and get 12 different answers …)

      None of this would be relevant if our police, prosecutors, attorneys, judges, and bailiffs simply returned to operating under Common Law. Of course if we actually practiced Common Law, then 100s of thousands of politicians, police, prosecutors, attorneys, judges, and bailiffs would be out of a job.

      For the uninitiated, Common Law is super simple: there is no crime unless there is a victim who suffered a demonstrable loss or injury. So, let a legislature pass any law they want, such as making it illegal to wear yellow shirts. And no police officer anywhere should enforce said law because there is no victim who suffered any loss or injury when your neighbor wears a yellow shirt. Likewise, no prosecutor or judge should allow such a case to proceed because there is no victim and no loss or injury.

      • You do realize that the difference between Statutory Law and Common Law is that Statutes are enacted by legislators, and Common Law is dreamed up by judges as they go along?

        And you realize the problem here is that some judges can’t stand to have the Common Law powers granted to the judiciary by the judiciary taken away from them?

        • And just *imagine* what an activist judge with an agenda, like, oh, I don’t know, “Guns are EVIL” could do to your ass as a defendant, especially when the prosecutor and him are buddies?

          I’m no fan of an un-checked judiciary. Even more so in areas where the judges are elected…

          *shudder*

        • So, what you are saying is that our Legislatures screw us under statutory law and our judges screw us under Common Law?

  8. Trump should issue an executive order seizing his property and forcing him to live in Minidoka for the rest of his life.

  9. Something is unconstitutional when it violates one’s rights. There is no right that the victim of a person attacking them void of the reason of self defense must retreat and there are no amendments that says anything as such.

    For a member of the judicial branch to say that the legislative branch does not have the authority to make laws that do not infringe on one’s rights when it is the right of a legislature to make or do away with such laws is tyranny.

    We have a Judicial tyranny brewing in this country and it seems the Federal and State executive and legislative branches don’t know what to do about it or don’t want to do anything about it and the people don’t either.

    I can give them a simple explanation of what to do about it: tell these dictators in black robes to F*CK off.

    • Almost every constitution that I am aware of (I have not read them all), including The Constitution of the United States of America, includes a provision for the legislature to impeach officials, including judges.

      Only when the legislatures grow enough balls to start actually using this constitutional power to reign in activist judges will this judicial tyranny cease to be a factor.

      It should be noted that Liberals have traditionally worked through the courts to get results they have been unable to achieve through winning elections or passing legislation and at least on the federal level, now that they have for the time being absolutely zero ability to affect federal law, they are using this judicial interference as their essential tool to obstruct anything the conservatives accomplish.

  10. The author truly has no f***ing clue what he is talking about.

    The Constitution of the State of Florida explicitly states “The supreme court shall adopt rules for the practice and procedure in all courts….” However, there is another provision: “Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.” The state’s original “stand your ground” law passed each house with ~80% approval in 2003. It eliminated the duty to retreat and set up valuable protections (right not to be arrested, detained, charged, or prosecuted). In 2010, the supreme court issued a rule stating that the method to ensure someone accurately receives those protections was by having a pretrial hearing where the “survivor” has the burden of proving that the force he used was justified based on a preponderance of the evidence. Earlier this year, the legislature passed a law changing the hearing so that the prosecution had to show that the “survivor” is not entitled to the “stand your ground” benefits. The judged ruled that this addition to the original law is unconstitutional because it only passed with ~55% of both houses instead of the constitutionally mandated 66.6%.

    I don’t like the outcome, but I agree with it entirely.

    • Yes. The constitution seems clear (in Florida), Why do we only like the constitution when it favors us? Someone here already noted the legislative fix is to rescind the offending law, and replace it with a law putting the state on notice that if the accused is acquitted, the state will pay ALL of the costs to the defendant. Or, like so many other states, they can make a law for justifiable homicide, wherein the state must prove the defendant was not entitled to “stand your ground defense”. Or place “stand your ground” cases outside the purview of the courts (which would get really dicey). Or change the constitution to include that legislative law may, in fact, make changes to the court procedures and policies.

  12. The article is highly misleading.

    The judge ruled that the legislature can’t impose a procedural rule on the courts unless the law was enacted with at least a two-thirds majority as the state constitution (quoted above) specifies. It doesn’t end “stand your ground.” For an article by a respected legal scholar, see this: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/05/florida-judge-strikes-down-one-procedural-aspect-of-florida-stand-your-ground-law-but-the-basic-principle-remains/?utm_term=.7bfe823d58d7

    • You’re right—the judge’s ruling assumes that the burden of proof in SYG cases is a procedural matter and therefore is for the courts to decide, unless the legislature changes that procedural rule by a supermajority (2/3) vote. Prof. Volokh has done a nice job of separating the issues in this case and explaining why the decision about which party has the burden of proof related to SYG is a procedural rule to be set by Florida courts and not the Florida legislature by a simple majority vote UNDER FLORIDA LAW. I wish the author and everyone else had read Prof. Volokh’s post before thinking that this ruling struck down Florida’s SYG law.

      Having said that, I do think that an argument can be made on appeal that the Florida legislature’s new law changing the burden of proof in favor of the defendant asserting a SYG defense is “outcome determinative” and therefore a substantive rather than procedural rule.

      BTW, the author also does not know how to spell “precedents.” Perhaps he should stick to non-legal writing.

  14. So since a judge said having blacks walk around with guns, would make them citizens, he simply said they have no right to guns and they are all slaves now. That was in 1857.
    Three year’s later the civil war started, and 700,000 Americans were killed.

    Will we have a civil war in three years?

  16. ‘…meaning only the Florida Supreme Court has the right to make them.’
    WTF? Since when do courts make the law? 😐

    • Since all liberal judges declared any conservative legislature illegitimate due to not being liberal. This started in January.

  17. This is a PRIME example of tyranny of the court. This really is some legitimate tyranny here. Florida just keeps getting straight sodomized this year. Open carry shot down by a RINO harpy. Tryant judge destroys stand your ground. I think I’m forgetting another one. I’m starting to regret moving here. I came from Georgia and gun rights there are far more respected. I’ve started donating and supporting local gun rights groups. I sure would like to see us get some wins here.

  18. Best of luck to Judge Hirsch during the appeal process. Methinks his honor is about to get the lesson on checks and balances that the rest of us learned in our 8th grade Civics class.

  19. This is a truly bizarre ruling. It just shows that this judge wanted to strike down the law and could find no even semi-reasonable justification on which to base his decision.

    So instead he’s arguing for some strange monarchy of the court where the representatives of the people can’t actually pass laws to override a bad judge.

  20. Another instance of the judiciary branch usurping the powers of the legislative branch. Are there no consequences for this type of nonsense?

  21. I find it amusing how many comments above are about judiciary branch “overreaching” and “usurping”, when all the guy did was literally apply the most straightforward reading of the Constitution of Florida.

    This tells you all you need to know about how much credence you should give to all the usual “OMG partisan judges!” BS.

  22. “Florida Judge Rules Legislature Lacks Power to Make ‘Stand Your Ground’ Law”

    Big whup … just another self-induced intellectually retarded left wing liberal ‘judge’ begging to be beatch-slapped by an Appeals Court.

  23. I am so sick of this junk. If you study the Constitution and the federalist papers than you would know the courts are supposed to be the weakest branch of the government. Congress has authority over them, and they are not supposed to make ruling or even interpreting the Constitution. Their only job was to apply law to cases, not be the final arbiter on legislation.

    • So long as people keep electing representatives to the central government who refuse to have the courage to discipline the courts, there will be more of the same.

      However, in the case of the instant, the Florida court seems to have the state constitution clearly on their side as regards the legislature making law that sets out judicial internal procedure.

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