JUDGE STRIKES DOWN `STAND YOUR GROUND' CHANGES

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JUDGE STRIKES DOWN `STAND YOUR GROUND' CHANGES

July 04, 2017 - 09:36

By JIM TURNER -- THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, July 3, 2017 .......... A Miami judge on Monday ruled that a change to the state's “stand your ground” self-defense law signed nearly a month ago by Gov. Rick Scott, intended to better protect the rights of defendants, is unconstitutional.

Supporters of the controversial law, approved by the GOP-dominated Legislature earlier this year, called the ruling “a notable setback” and predicted an appeal.

“I'd be surprised if this decision wasn't overturned by the appellate court,” Fleming Island Republican Sen. Rob Bradley, a former prosecutor who sponsored the legislation, said after Monday's ruling by Miami-Dade Circuit Judge Milton Hirsch.

In a 14-page order, Hirsch wrote that the Legislature overstepped its authority with the change, which involves pre-trial burden-of-proof.

The statutory change violates Florida's separation of powers doctrine because it amounts to a “procedural” revision, something that must be handled by the Florida Supreme Court, Hirsch wrote.

While the Legislature makes “substantive” law, the judiciary is in charge of procedural matters, the judge wrote.

The constitutional separation of powers bars the legislative, judicial and executive branches from exercising powers consigned to another branch, Hirsch explained.

“It applies whether the purposes of the overreaching branch of government are benign or otherwise. It applies even when its application prevents a seemingly salutary change in law from becoming law. It applies in such cases because experience with government has shown that any momentary benefit expected from a change in law is usually outweighed by the lasting detriment resulting from a change in our constitutional system of checks and balances,” he wrote.

The new law, the only major gun-related measure to advance this year, shifted the burden of proof from defendants to prosecutors in the pre-trial hearings.

In “stand your ground” cases, pre-trial evidentiary hearings are held to determine whether defendants should be immune from prosecution.

Critics argued, in part, that the change would lead to cases ending before all the facts are revealed.

Proponents of the bill, supported by groups such as the National Rifle Association, said shifting the burden of proof would better protect the rights of defendants.

NRA lobbyist Marion Hammer, a former president of the national organization, said it was difficult to comment on the ruling.

“It is so bad I'm at a loss for words," she said.

Bradley, who backed the change the past two sessions, said the law simply cleared up an ambiguity found in the original 2005 “stand your ground” law, the first of its kind in the nation.

Bradley said the legislation (SB 128) was drafted as a response to “clarify” what he called a misinterpretation of “stand your ground” by the state Supreme Court, in a case known as Bretherick v. State.

The Florida Supreme Court ruled in July 2015 that people who use the defense have the burden of showing they should be shielded from prosecution. In "stand your ground" cases, pre-trial evidentiary hearings are held to determine whether defendants are immune from prosecution.

Under the new law, which applies retroactively, the burden of proof is on prosecutors.

“Once the Legislature filled in the blanks, which is what we did, that certainly was an action that was within the appropriate purview of the Legislature,” Bradley said.

House Speaker Richard Corcoran, a lawyer, also predicted that the circuit judge's ruling would be overturned.

"It is the role of the Legislature to write the laws that govern how Floridians may exercise their statutory and constitutional rights,” Corcoran, R-Land O' Lakes, said in a statement. “The Florida House will continue to stand with ordinary citizens who exercise their right to self-defense. We look forward to this decision being reversed on appeal."

Scott spokeswoman Kerri Wyland said Monday that the governor's office was reviewing the decision.

During debate on the measure earlier this year, Democrats labeled the self-defense proposal "a shoot to kill" and "how to get away with murder" bill.

The proposal was approved along party lines on the final day of the regular legislative session that ended early in May.

“Yet another ill-conceived law rammed thru the legislature by GOP is ruled unconstitutional,” Rep. Carlos Guillermo Smith, an Orlando Democrat, tweeted shortly after Hirsch's Monday ruling.

The "stand your ground" law has long been controversial. It says people can use deadly force and do not have a duty to retreat if they think it is necessary to prevent death or great bodily harm.

Lucy McBath, faith and outreach leader for Moms Demand Action for Gun Sense in America, on Monday called the ruling “a notable setback in the dangerous expansion of `stand your ground' laws.”

“Florida is one of the few states to expand or enact a Stand Your Ground law since the senseless killings of my son, Jordan Davis, and Trayvon Martin,” said McBath, who attended a number of committee hearings on the bill this year. “We must continue to fight for the safety of our communities, and we must continue to fight for justice."

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