Stand Your Ground

Florida Judge Strikes Down Part of Stand Your Ground Law

A Miami judge says defendants bear the burden of proving self-defense, but criminal justice reformers and the NRA say it's the government's job.


Scott Houston/Polaris/Newscom

Miami circuit court judge Milton Hirsch has declared a provision in Florida's "stand your ground" laws violated the constitution's separation of powers, once again stirring up debate over the state's controversial self-defense law.

Hirsch ruled Monday that the state legislature erred when it passed a law this May shifting the burden of proof onto state prosecutors to disprove self-defense claims during pretrial immunity hearings.

The decision is not binding on other courts, and it will almost certainly be appealed. Gun control advocates and state prosecutors who argue the laws make it too easy for defendants to avoid being tried for violent crime will once again face off against a coalition of Second Amendment groups, defense attorneys, and criminal justice reform organizations, who say the intent of the law clearly puts the burden on the government to disprove self-defense claims.

The bill had the support not only of the National Rifle Association (NRA), but also of public defenders, criminal defense attorneys, and Families Against Mandatory Minimums (FAMM), a nonprofit advocacy group that opposes mandatory minimum sentences.

Marion Hammer, a former president of the NRA and now a prominent Florida gun lobbyist, calls Hirsch's ruling judicial activism.

"Judge Hirsch made a unilateral decision to attack the constitutional authority of the Legislature to pass laws even though neither of the attorneys in the case asked him to rule on such an issue," Hammer says. "Activist judges can't just arbitrarily make procedural rules to usurp laws they don't like."

State prosecutors vocally opposed passage of the original Stand Your Ground laws in 2005, as well as the legislature's subsequent amendments.

"Outside of 'stand your ground,' I don't know of any other defense that gives defendants immunity from prosecution," Glenn Hess, president of the Florida Prosecuting Attorneys Association, told The Trace earlier this year. "It's a free bite of the apple for them."

The Florida Prosecuting Attorneys Association did not immediately respond to a request for comment.

The first-in-the-nation Stand Your Ground laws did not address which party would bear the burden of proof. The Florida Supreme Court ruled in 2008 and again in 2015 that defendants must prove self-defense during pretrial hearings to be granted immunity from the burden of a full trial.

The 2015 case, Bretherick v. Florida, involved a road rage incident. Jared Bretherick faced a mandatory three years in prison if found guilty. That mandatory minimum law has since been rolled back, but aggravated assault and battery still carry stiff sentences in Florida, and prosecutors have total discretion as to whether and with what to charge someone.

Marissa Alexander, who served nearly six years in prison and on house arrest before being released from custody earlier this year is the marquee case for those who say Florida's aggravated assault laws are too punitive. Alexander was convicted in 2012 of aggravated assault after firing what she said was a warning shot at her allegedly abusive husband. A judge found Alexander did not meet her burden of proof for a self-defense claim.

"We've always thought Stand Your Ground and the mandatory minimum laws are in tension with each other," says Greg Newburn, the state policy director of FAMM, "because we rightly want our citizens to defend themselves when they're under attack, but if they do, they open themselves up to insane prison sentences."

Gun control advocates and prosecutors counter with cases like Omar Rodriguez, whose claim of self-defense after shooting his neighbor over a dispute over dog poop Hirsch ruled upon.

"Abusive prosecutors who are more concerned about convictions than justice will always make up a parade of horribles to try to rationalize their opposition to justice," Hammer says.

However, the Florida Supreme Court ruled in 2015 that requiring defendants to prove their self-defense claims would not diminish their right to a fair trial. On the other hand, putting the burden of proof on the state would force state attorneys to try their case twice, expending "tremendous" time and resources defeating potentially frivolous claims, as well as giving defendants a preview of the state's entire case, the court majority said.

Not all of the justices agreed. In a dissenting opinion, Florida Supreme Court justice Charles Canady wrote, "By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the legislature under the stand your ground law."

The legislature decided to clarify its intent in May, shifting that burden back onto the government. "The new law merely puts the law back to where it was before the 2008 activism by the lower court," Hammer, who supported the amendment, says. "The recent action by the liberal faction on the Florida Supreme Court was nothing more than judicial activism at a higher lever."

Families Against Mandatory Minimums and public defenders argue that Florida's stiff mandatory minimum sentences for aggravated assault and battery can make the prospect of going to trial and arguing self-defense an extremely risky proposition.

"We have a system right now where the deck is already stacked severely against defendants who claim self-defense," Newburn says. "When you're facing a 20-year mandatory minimum it's bad enough. When you add, on top of that, having to prove your innocence at an immunity hearing and giving the prosecution access to all the evidence you'd be presenting at trial, that makes this already severe burden intolerable."

Stacy Scott, a public defender for Florida's Eighth Judicial Circuit, says defendants who cannot afford private attorneys are much less likely to be able to marshal the resources to fight a lengthy and complicated self-defense trial.

"Prosecutors have way too much leverage in every area of the process," Scott says. "It becomes almost insurmountable for someone with a legitimate self-defense claim to rationally choose to turn down a favorable plea offer and go to trial."

Scott provided Reason with a plea offer a client received in January from a state attorney. "THIS PLEA OFFER IS BASED UPON NO DEPOSITION BEING TAKEN, UPON SETTING A DEPOSITION I WILL REVOKE THIS OFFER," the memo reads. For public defenders, this choice amounts to either not doing their jobs or letting their clients risk years in prison.

When all these factors are taken into accounty, Scott says, "it makes total sense that, for the hearing to have any meaning and satisfy the legislative intent for true immunity, the government should bear the burden of proof."

A state appeals court will likely take up that question. A spokeswoman for Florida Attorney General Pam Bondi told the Associated Press Bondi's office would appeal the order.