Florida Judge Rules Recent Changes to Self-Defense Immunity Law Are Unconstitutional

Just posted up at Legal Insurrection:

“Stand-Your-Ground” was back in the headlines against over the just-concluded Independence Day weekend, thanks to a 14-page decision by Miami-Dade Circuit judge Milton Hirsch that recent legislative changes to Florida’s self-defense immunity law were unconstitutional, reports the Bradenton Herald newspaper and other sources. (That decision is embedded below.)

Specifically, the recently signed law switched the burden of persuasion on pre-trial self-defense immunity from the defendant to the state, and changed the standard of evidence required from a preponderance of the evidence to one of clear and convincing evidence.

(We wrote about these changes more extensively here: “Florida Changes Burden of Proof of Self-Defense Immunity.”)

In other words, under the revised law once a defendant claims self-defense immunity the state is required to disprove the defendant’s claim of justified use of force by clear and convincing evidence. If the state fails to do so, the judge is to grant the defendant immunity from criminal prosecution and civil suit.

Judge Hirsch’s decision that these changes are unconstitutional is based on the argument that although under the Florida constitution it is the legislature that creates substantive law, only the Florida courts can create procedural law. The judge considered the recent legislative changes to self-defense immunity to be procedural in nature and thus beyond the legislature’s authority.

I claim no expertise whatever in Florida constitutional law, so I will need to leave the merits of Judge Hirsch’ constitutional argument to others. I do, however, claim some modest expertise in use-of-force law, which is the subject of nearly the first half of Judge Hirsch’s opinion.

Having read that half of the decision closely, I can only say that if his knowledge and understanding of Florida constitutional law is as weak and disordered as his knowledge and understanding of Florida “Stand-Your-Ground” law. It seems most unlikely that this decision will withstand appellate review.

Click here to read the whole thing.

About the Author

Andrew Branca
Andrew F. Branca is a Massachusetts lawyer and the author of the seminal book “The Law of Self Defense, 3rd Edition,” available at the Law of Self Defense website (autographed copies available) and Amazon.com (paperback and Kindle), and many other re-sellers. Andrew just launched his latest product, the LOSD Instructor Program, designed for gun safety, marksmanship and tactical strategy instructors. Be an elite member of the self defense community, understanding your state's self defense laws to a depth even lawyers rarely achieve. Check it out here.   Andrew also gives live, in-person, ~5 hour-long state-specific Law of Self Defense Seminars all over the country. Click here to find a live seminar covering your state's self-defense laws.   Andrew also produces many 4-5 hour online, on-demand state-specific Law of Self Defense training courses. These online classes are enriched versions of the live, in-person state-specific Law of Self Defense Class Andrew gives all around the country. Click here to find an online course for your state. These online classes are priced at $249/HOUSEHOLD. You can learn more details and view the first section of the training class for free (about 30 minutes worth of self-defense law training) by clicking here.

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