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  • Miami Judge Rules Stand Your Ground Changes Unconstitutional

Miami Judge Rules Stand Your Ground Changes Unconstitutional

On July 3, the Miami Herald reported that Miami-Dade Circuit Judge Milton Hirsch ruled that Florida's updated "Stand Your Ground" law was unconstitutional. The ruling was not binding, likely meaning that the appeals process would lead to the revised law being reviewed by the Florida Supreme Court. 

Senate Bill 128 (SB 128), which shifted the burden of proof from the defendant to the prosecutor during the pretrial phase of Stand Your Ground cases, was one of 16 measures Governor Rick Scott signed into law on June 9. Under the new law, prosecutors must prove by “clear and convincing” evidence that an alleged offender was not acting in self-defense. 

Hirsch issued his ruling in the case of a woman charged with aggravated assault with a firearm and grand theft. The Herald reported that the woman will have an immunity hearing held in the near future to prove her self-defense claim, and she would be able to appeal to the Third District Court of Appeal, and ultimately, the Florida Supreme Court if unsuccessful. 

The Florida Legislature amended Florida Statute § 776.032 after the Supreme Court of Florida concluded in Bretherick v. State, 170 So.3d 766 (Fla. 2015) that the Fifth District Court of Appeal correctly determined that a defendant bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at the pretrial evidentiary hearing. “As a matter of constitutional separation of powers, that procedure cannot be legislatively modified,” Hirsch wrote, referring to the adjudication of Stand Your Ground claims.

Stand Your Ground Attorney in Miami

The passage of Stand Your Ground in 2005 was controversial because it established that a person does not have a duty to retreat and has the right to stand his or her ground if he or she is not engaged in a criminal activity and is in a place where he or she has a right to be when he or she reasonably believes that using or threatening to use deadly force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. Under Florida Statute § 776.032(1) a person who uses or threatens to use force "is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened," unless the person against whom force was used or threatened is a law enforcement officer. 

"It is the role of the legislature to write the laws that govern how Floridians may exercise their statutory and constitutional rights," Speaker of the Florida House of Representatives Richard Corcoran said in a statement. "The Florida House will continue to stand with ordinary citizens who exercise their right to self-defense." 

While Judge Hirsch's ruling is a temporary victory for prosecutors in Florida, people who are accused of violent crimes should not assume that Stand Your Ground is no longer a valid self-defense claim. Any person who is facing criminal charges as the result of using justified force should be sure to contact The Hoffman Firm as soon as possible. 

Evan A. Hoffman is an experienced criminal defense lawyer in Miami who can review all of the circumstances surrounding your case and fight to achieve the most favorable outcome that results in the fewest possible penalties.

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Evan A. Hoffman

Evan A. Hoffman

Mr. Hoffman’s philosophy is "our knowledge and experience is your best defense." He has been a featured author on criminal law issues such as driving under the influence, domestic violence and illegal searches.

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