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

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

    Judge rules legislature exceeded its authority, in decision that confuses “Stand Your Ground” and Self-Defense Immunity concepts

    “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.

    Before we get to the merits, or lack thereof, of Judge Hirsch’s coverage of Florida “Stand-Your-Ground” law, however, it is necessary that we, at least, first understand what we are talking about.

    Stand-Your-Ground ≠ Self-Defense Immunity

    Most important in this regard is that we understand that Stand-Your-Ground and self-defense immunity are two entirely distinct legal concepts, and indeed are covered by completely separate Florida statutes.

    Stand-Your-Ground refers to the removal of an otherwise existing duty to retreat before one may use force in self-defense. A minority of 13 states impose such a legal duty to retreat, making it a fifth element of any self-defense claim, in addition to the other elements of innocence, imminence, proportionality, and reasonableness. The large majority of 37 states, however, do not impose a legal duty to retreat. Roughly half of these have either never had such a duty, or have had the duty rejected by case law (court decisions). Roughly half, like Florida, rejected the legal duty to retreat through legislative action. When Florida did this in 2005, it effectively redefined self-defense, broadening the range of conduct that qualified as a justified use-of force (cases that would have failed as lawful self-defense because the defender failed to retreat would now qualify as self-defense because retreat was no longer required).

    Self-defense immunity is a legal doctrine entirely distinct from Stand-Your-Ground. Indeed, self-defense immunity it has nothing whatever to do with the definition of self-defense. It merely says that if a person’s use-of-force falls qualifies as lawful self-defense—however self-defense may be legally defined elsewhere—then that person is entitled to immunity from prosecution and civil suit.

    The fact that these are two entirely distinct legal concepts is clear to anyone who has bothered to look at the actual statutes.

    Stand-Your-Ground (no duty to retreat) language is found in several Florida self-defense statutes, including: §776.012 Use or threatened use of force in defense of person, §776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm, and §776.031 Use or threatened use of force in defense of property. Note that none of those statutes says so much as a single word about self-defense immunity.

    Self-defense immunity is found only in a completely separate statute: §776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force. Note that this statute says not a single word about Stand-Your-Ground (no duty to retreat).

    So, Stand-your-Ground and self-defense immunity are two entirely distinct legal concepts.

    Judge Confuses These Two Concepts

    It has, sadly, become common for the phrase “Stand-Your-Ground” to be used to refer to both of these distinct legal concepts, largely because both doctrines were adopted by Florida at the same time, and because of the apparently extremely limited mental capabilities of most of the journalists who cover either of these topics. This has the unavoidable consequences of blurring together in the mind these two distinct legal concepts, and leads to sloppy and inaccurate legal understanding and analysis.

    While such sloppiness of thought may be forgivable in journalists and traumatic brain injury victims, however, it is inexcusable in a member of the bench, and particularly a member of the bench who is attempting to make profound changes to one (and only one) of these legal doctrines.

    Yet this stupefying blending of legal concepts is exactly what Judge Hirsch engages in with this opinion.

    Note that I’m not suggesting that Judge Hirsch merely sloppily uses the phrase “Stand-Your-Ground.” While this is also inexcusably sloppy in a judge, it has become so common among even lawyers and judges in Florida that it is perhaps understandable.

    Judge Hirsch, however, goes far beyond mere misuse of the phrase “Stand-Your-Ground” and in fact appears unable to distinguish between the legal concepts themselves.

    We know this because the subject of this decision is self-defense immunity, and only self-defense immunity, and yet Judge Hirsch devotes fully a third of his purported discussion of self-defense immunity by instead writing substantively about Stand-Your-Ground (the legal duty to retreat), when the legal duty to retreat is simply not a subject of this case. (Indeed, Judge Hirsch spends a good portion of this part of the decision quoting himself, apparently a habit of his.)

    Why Judge Hirsch would lead his decision on a self-defense immunity matter with a substantive discussion of “Stand-Your-Ground” (legal duty to retreat) when in fact his decision has nothing to do with Stand-Your-Ground and involves solely self-defense immunity? Two possible reasons come immediately to mind:

    (1) He simply lacks the cognitive function to recognize the distinction between these two distinct legal concepts.  This would be unfortunate for many reasons, not the least of which is that Judge Hirsch is also an adjunct faculty member at the University of Miami School of Law.

    (2) He was fully aware that his decision would get vastly more news coverage over the Independence Day weekend if he made the phrase “Stand-Your-Ground” a prominent component of that decision.

    Note that these two possible explanations are not mutually exclusive.

    Again, I will leave to others the question of the merits of Judge Hirsch’s constitutional argument. The sloppy mental processes and/or self-aggrandizement evident in his discussion of Florida use-of-force law, however, does not suggestthat the constitutional argument is likely to be particularly robust.

    As promised, Judge Hirsch’s decision is embedded below:


    Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.

    [Featured photo is from the Bradenton Herald news report on this story.]


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    eamonkelly | July 5, 2017 at 6:43 pm

    And what will he do when his life is threatened, I wonder?

      Blame it on the Tea Party, of course.

      DaveGinOly in reply to eamonkelly. | July 6, 2017 at 12:25 am

      “Technically, a person can not make claim to those protections unless testifying would likely incriminate him.”

      I must take issue with this. An innocent defendant cannot know in every instance how an honest answer to a question may incriminate him, or know that it will not do so. The so-called Miranda warning says “Anything you say can and will be used against you,” meaning even if you say something you think is exculpatory. Therefore a defendant may always elect to “remain silent.” The Fifth Amendment says nothing about “self-incrimination,” it says no person “shall be compelled in any criminal case to be a witness against himself.” Because you can’t know that your honest answer won’t incriminate you, and any answer you give could be used to do so, you can’t be compelled to “bear witness”, i.e., give testimony, in your own defense.

    Mac45 | July 5, 2017 at 7:59 pm

    This is an extremely complicated subject, so bear with me, please.

    Historically, I have had significant problems with several of Judge Hirsch’s decision on controversial points of law. However, in this decision, he makes a strong case for his view being correct. A pretrial hearing is a procedural matter. And, the change in the existing statute now makes a motion to dismiss based upon statutory immunity for lawful self defense different from every other pretrial motion in the state. Historically, the petitioner has the duty to prove, by a preponderance of the evidence, that he is entitled to the action requested in the motion. The SCOF, in Bretherick v State, stated that a motion for dismissal for immunity is no different than any other pretrial motion and the petitioner bears the responsibility to first make a case that the action requested is valid and then prove that he or she is entitled to the action requested.

    Second, Hirsch makes a pretty good case that the Florida Constitution grants the establishment of judicial procedures to the SCOF and that separation of powers, as written in the Florida Constitution, reserves the establishment administration of judicial procedures to the SCOF, not the Legislature. The Legislature may establish a pretrial motion to deal with the granting of immunity, but it may not tell the courts what procedure to use to administer the hearing on that motion. And, this is the crux of the argument, here.And, it a reasonable point that will eventually be decided by the SCOF.

    Now, let me clarify the situation in Florida, prior to the change in the law. Up until the change took place this summer, LE was prohibited from arresting anyone for unlawful use of force, once a reasonable claim of self defense had been raised, until the investigators produced probable cause that lawful self defense did not exist. This is important. Next, all charges are examined by a magistrate to make sure that sufficient probable cause exists for the charge. This is protection number two. Then the Legislature granted a person charged, who raised a claim of lawful self defense, the opportunity to raise the issue of statutory immunity for lawful self defense in a pretrial hearing. If the petitioner [defendant] proved, through a preponderance of the evidence, that lawful self defense did, in fact exist, the immunity from prosecution was granted, the accused was released and all charges dropped. This is protection number three. But, if the immunity was not granted, the accused was still entitled to a complete trial and suffered no injury from failing to prevail at hearing. This is protection number four. So, in order for a conviction to occur, the LE investigator has to provide probable cause that lawful self defense does not exist, a magistrate has to agree with that, the defendant has to fail to prove that such lawful self defense exists [through a preponderance of the evidence] and, at trial, the state has to prove that lawful self defense does not exist, beyond a reasonable doubt, once the defense makes a valid case for its existence. It just doesn’t get any fairer than that.

    The reality of the situation is that the vast majority of people do not get arrested on unlawful use of force charges, if lawful self defense can reasonably be assumed to exist. But, once arrested, it becomes extremely difficult to prove that lawful self defense did exist. Remember, before being arrested, LE has to establish PC that lawful self defense did not exist. And, as the pretrial hearing is heard by a jurist, not a jury, the case is decided upon technical merit, not emotion. Finally, even in jury trials almost no defendant prevails with a self defense defense if they have lost a pretrial motion for immunity for lawful self defense.

    What people do not understand about the original adoption of the statutory immunity language several years ago, was that it was never intended to allow anyone who claimed lawful self defense to take advantage of the immunity granted. Only those who were legitimately entitled to such immunity could be granted it. But, the Legislature, responding to claims that LE simply arrested anyone who used force against another and referred them to the courts to sort out, stipulated that no one could be arrested unless LE produced probable cause that lawful self defense did not exist. Immunity, in this case, is similar to the protections against self incrimination in the 5th Amendment to the US Constitution. Technically, a person can not make claim to those protections unless testifying would likely incriminate him. Similarly, a person is not entitled to immunity from prosecution, unless he can show that he is entitled to such immunity.

      Bruce Hayden in reply to Mac45. | July 6, 2017 at 9:14 am

      The problem there is that you (and the judge) address the theory, and not the reality of prosecution for self-defense use of deadly force by zeleous, often very politically motivated, prosecutors, who use the process of arrest and prosecution to punish those unlucky enough to have to use deadly force in self defense. Classic example there was George Zimmerman, prosecuted for purely political reasons. There was never probable cause to believe that the killing of Trayvon Martin was not completely legally justified. And, of course, suspecting that she couldn’t get an indictment through a grand jury, bypassed such by indicting personally using (highly biased) information.

      Yes, the magistrate and judge are supposed to protect defendants against arrest and trial when there is insufficient evidence to disprove self-defense. But that is theory, and the reality is that prosecutors can, and apparently often did, bypass this by merely minimizing the amount of exculpatory evidence that they provide those magistrates and judges who are supposed to be acting as gatekeepers. And that is maybe the difference between lack of self-defense and other required elements of crimes – disproving self-defense would mean proving a negative, while the other elements of a crime can be positively recited and shown. Normally, if the prosecution doesn’t provide enough evidence for a required element of an alleged crime, the case is dismissed. With the defense of self-defense however, insufficient evidence means that the case is not dismissed, but rather the defendant is bound over for trial. And that was, arguably, exactly what happened with Zimmerman – evidence supporting self-defense, and well known to the police and prosecutors at the time, was (arguably) strategically missing from the indictment papers filed with the court (notably Zimmerman’s video recorded reenactment with the police the day after the killing, and weeks before the indictment).

        Mac45 in reply to Bruce Hayden. | July 6, 2017 at 12:29 pm

        Let us dispose of the George Zimmerman case immediately. The Zimmerman prosecution was blatant judicial and prosecutorial misconduct. Nothing more. The evidence clearly supported the fact that Zimmerman legally used deadly force. CLEARLY. The original SA had refused to charge or indict Zimmerman. And, the magistrate and judge were both actively involved in this misconduct. No amount of procedural changes would have affected the outcome of this case, because ALL judicial procedures rely upon the jurist involved to act impartially.In Zimmerman’s case, the system was working exactly as it was supposed to, until political forces got involved. Jurists do not live in a vacuum. It is unreasonable to think that a magistrate in the Sanford area would not be familiar with the facts of the case long before the PC affidavit was tendered. It is part of the magistrate’s job to make sure that the evidence put forth in the affidavit is accurate and complete. In the Zimmerman case, the PC put forth was woefully insufficient to substantiate charges being filed and commonly known exculpatory evidence was clearly lacking. In other words, the judicial fix was in.

        Your second paragraph is simply not accurate. In the vast majority of cases since 2005, the system has worked fine. In fact, in several cases the system has worked to exonerate persons involved in uses of deadly force which were rather iffy. The claim that prosecutors and LE are running roughshod over the rights of honest people to use deadly force legally, in Florida, is one which is simply not supported by any evidence. It is a product of the imagination of pro-gun activist concerns. Let’s look a Brietherick. The published media reports, originating froim Brietherick’s legal team were completely at odds with the fact of the case as determined by the Sheriff’s Office. The defense reports portrayed Brietherick Jr as stepping out of his family’s vehicle and threatening the other drive from a distance while that person was outside his vehicle and stalking toward Brietherick. However, the investigation, which was already complete found that When the other driver had exited his vehicle and was walking toward the Brietherick vehicle, Brietheric Sr displayed a handgun, in a threatening manner, from the front seat of the vehicle. The other driver then turned back and reentered his vehicle, where he placed a call to LE. Brietherick Jr then exited the passenger side of the family vehicle, gun in hand, walked several tards to the driver side of the other vehicle where he directly threatened the driver with his handgun and ordered him to move out of the roadway. This does not even sound like the same incident, does it?Now, as the other driver had never been visibly armed with a deadly weapon and had made no threats of the use of deadly force, by either word or deed, to threaten the use of deadly force against him was patently illegal. Now, the authorities did not charge Brietherick Sr with any unlawful use of deadly force, as the other driver was approaching him in a threatening manner, even though no deadly weapon was visible. However, this did not apply at the time of the Brietherick Jr’s actions. So, he did not act in lawful self defense. The courts so found and he was convicted of aggravated assault.

        Now about your proving a negative claim. What are you talking about? In the first place, a claim of self defense always has to be proven. Simply claiming that lawful self defense existed is legally insufficient. So, it is up to the defendant to prove that his claim to lawful self defense is, at least, viable. Using deadly force against another is illegal, unless such force was used in lawful self defense. So, self defense is always an affirmative defense which has to be proven to exist, to some extent. Now, Florida statutes go beyond that, making it a requirement that LE provide probable cause that lawful self defense does not exist, before a person can be arrested. This is not hard to do, in most cases. PC that an action was not made in lawful self defense can usually be established if witness testimony and/or forensic evidence do not support the claim. Now, if the LE PC affidavit fails to provide such PC that lawful self defense did not exist, after being notified that the defendant is claiming self defense, then the arrest can be challenged in two ways. The first is on the grounds of insufficient PC, as the claim of self defense was not addressed. The second is by filing for an immunity hearing. In the second, the defense would have to prove that lawful self defense did, in fact, exist, by a preponderance of the evidence. In the first, all the defense would have to prove is that the claim of self defense was brought forth during the investigation and that the PC that lawful self defense did not exist was lacking.

        What you are assuming is that the judicial system in totally corrupt. But, if such is the case, then no safeguards can ever be effective. This was exactly what happened in Zimmerman’s case. The judiciary totally ignored the required safeguards and engaged in blatant prosecutorial and judicial misconduct. And, if that happens, there is simply nothing that can be done, if the system is totally corrupt.

    Another Ed | July 5, 2017 at 8:33 pm

    Orlando, Florida attorney, blogger and author of “Florida Firearms: Law, Use & Ownership” Jon H. Gutmacher has an interesting opinion on this:

    A procedural argument was also made in a case reported today in The Tampa Bay Times:

      From the Gutmacher post you link:

      “I’m not going to bother writing an article with all the tons of case law that supports that. You’ll have to take my word for it. ”

      Thoroughly unimpressed by that response. “You’ll have to take my word for it” is even less work than Judge Hirsch put into his ruling. Gutmacher may well be correct on the merits, but there’s no way to know that from his post on the matter. Pathetic.

      Not that impressed by much of Gutmacher’s other posts, either. The histrionic panic of many of his posts is not exactly confidence inspiring.

      Want proof? Forget it. “You’ll have to take my word for it.”

      Oofah. What kind of lawyer says that?


    rorschach256 | July 5, 2017 at 9:51 pm

    I think that there is a more fundamental question that needs to be addressed. Are judges elected or appointed in Florida? The answer to that question will most likely explain much.

    rorschach256 | July 5, 2017 at 11:57 pm

    Elected judges need visibility to get reelected, obviously this one decided that this was the hill he wanted to die on, so to speak.

      Just like Nancy Pelosi will be elected in San Francisco forever, even if she’s the last Progressive standing, this judge can only better himself by going hard-Progressive in Miami-Dade, even if he ends up being the last Progressive judge in Florida.

      Hopefully it’s a Progressive fascist death spiral, with the political survivors isolated to a handful of hellholes.


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