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Florida Judge Rules Stand Your Ground Amendments Unconstitutional


Well - that didn't take long. At the close of our last blog post, which covered the recent procedural amendments to Florida's "Stand Your Ground Law", I stated that challenges to their implementation were sure to come. The next day, a South Florida judge ruled that the new procedural framework was unconstitutional, because the manner in which it was enacted violated the separation of powers provision of the Florida Constitution.

Prior to the new changes taking effect in June, the burden of proof in a stand your ground immunity hearing was on the defendant, and the standard to be applied was a "preponderance of the evidence". Put differently, where an accused purports to have acted in self-defense, he or she had the burden of proving that was in fact the case, and that it was "more likely than not" his or her use of force was legally justified under the circumstances. The issue was raised in the form of a pre-trial motion to dismiss and, therefore, the judge (and not a jury) would make those determinations. After its enactment in 2005, there was much confusion throughout the state, at both the trial and appellate court levels, as to the procedural aspects of Florida's Stand Your Ground law (e.g. whether it was the defendant or the state who bore the burden of proof, and whether the court was required to resovle factual disputes or to delineate that role to the jury). The Florida Supreme Court established the procedural framework in State v. Dennis, 51 So.3d 456 (Fla. 2010) and Bretherick v. State, 170 So.3d 766 (Fla. 2015) holding that (1) the accused bore the burden of proof; (2) the standard was a preponderance of the evidence; and (3) the court could not deny an accused person's motion to dismiss based on statutory immunity because issues of fact (which are typically resolved by juries) existed. For further reading, see our blog post from June, 2016 entitled "What is a Stand Your Ground Immunity Motion?"

Last month, Governor Rick Scott signed into law some sweeping procedural changes to that framework. The proposed changes were promulgated by the legislature in SB 128 which was approved in the House (74-39) in April and in the Senate (22-14) in May. Under the new law (Fla. Stat. sec. 776.032(4)), the defendant is only required to put on prima facie evidence of justification (this is done by filing a written motion asserting entitlement to immunity and providing a brief factual statement in support thereof). The state of Florida then bears the burden of proving that the accused was not justified in his or her use of force. The standard was elevated from a "preponderance of the evidence" to "clear and convincing evidence". In short: the state now bore the burden of proof, and it was much higher. For further reading, see our blog post from last month entitled "Florida Places Burden of Proof on the State in Stand Your Ground Immunity Hearings".

Dade County Circuit Judge Milton Hirsch was one of the first Florida Judges to preside over a motion to dismiss based statutory immunity following the new law taking effect (if not the first). The defendant in that case was charged with Aggravated Assault with a Firearm and Grand Theft and sought to have her charges dismissed. In her motion, apparently, she asserted that the State of Florida bore the burden of proof and was required to establish, by clear and convincing evidence, that she was not justified in the use of force and, therefore, not entitled to statutory immunity.

The judge entered an order declaring the new law unconstitutional, not based on its substance but, rather, because of the manner in which it was enacted. Article V, section 2(a) of the Florida Constitution states, in pertinent part, that "The Supreme Court shall adopt rules for the practice and procedure in all courts . . . ". The judge asserted that the province of the legislature and the Florida Supreme Court are thus well defined: the legislature is free to enact changes to the substantive laws of the state but, when it comes to implementing procedural changes, that authority rests with the judiciary. Because the changes to Florida's Stand Your Ground Law were in large part procedural (shifting the burden from the accused to the state), the legislature (and the executive branch) overstepped their bounds in enacting the new law. In a footnote, Judge Hirsch acknowledges that the Supreme Court's enactment of procedural law can be overruled by a super majority vote of two thirds of each house of the legislature (under Article V, sec. 2(a) of the Florida Constitution), but was quick to point out that the changes to Stand Your Ground laws were not the product of a super majority vote.

Based on his findings, the Judge allowed the hearing to proceed, but followed the pre-June 2017 procedure: he required that the defendant bear the burden of proof and that she establish her entitlement to immunity by a preponderance of the evidence. If the motion is denied, the defense will assuredly appeal the order based on the Court's refusal to follow the current version of the law.

Apparently, not all judges throughout the state are mirroring Judge Hirsch's refusal to implement the recently enacted procedural aspects to Stand Your Ground in hearings on motions to dismiss. Just this past week, two close associates of mine successfully litigated a stand your ground motion here in Pinellas County. The Court followed the new law and required the state to prove that their client was not entitled to immunity by clear and convincing evidence. A couple of weeks back, I read about another case in Central Florida where the Court followed the newly enacted procedures in an immunity hearing (which came after Judge Hirsch's ruling in Dade). I would not be surprised, however, if other judges take the same position as Judge Hirsch in the upcoming months.

So what does all this mean? For the time being anyway, cases in Pinellas County will in all likelihood be conducted in a manner consistent with the new law. Sooner or later, one of Judge Hirsch's orders denying relief based on statutory immunity will be appealed (if not this one). Depending on how the Court of Appeals rules, the issue could make its way to the Florida Supreme for their consideration. As always, I'll keep you posted.