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.