As both sides of the Stand Your Ground issue weigh in, what impact could a Florida judge calling legislative changes to the state’s Stand Your Ground law unconstitutional have statewide?
When Miami Dade Judge Milton Hirsch ruled the Florida legislature overstepped its authority in making revisions to the 2005 Stand Your Ground law, Lucia McBath couldn’t be happier.
She’s the mother of Jordan Davis, who was fatally shot during a dispute over loud music at a Jacksonville gas station in 2012. While he was later convicted, Michael Dunn, who killed Davis, initially claimed self-defense.
“It’s a win for guns on prevention, and it’s specifically a win for advocates like myself, victims like myself, and their families that have continually suffered by the angst of the possible expansion of Stand Your Ground,” said McBath.
During this year’s legislative session, Florida lawmakers passed a measure to change the role of prosecutors during pre-trial immunity hearings in Stand Your Ground cases. Before the Governor signed it into law last month, the accused had to prove to a judge their self-defense claim was justified to avoid a trial.
But, with the legislative change, it now shifts that burden to prosecutors.
That same question came before the Florida Supreme Court. In 2015, all the justices agreed the legislature’s intent was not clear. But, most on the high court agreed the burden should stay with the defendant during the immunity hearing. That’s because they said it could turn into two full blown trials—one before a judge and another before a jury—where a prosecutor would have to essentially prove their case twice.
Thus, allowing the defendant to get a preview of the state’s entire case, if it goes to trial.
While recently presiding over two cases, Miami Dade Judge Milton Hirsch stated the high court had already decided on the Stand Your Ground immunity hearing—ruling the 2017 law unconstitutional.
But, Sen. Rob Bradley (R-Fleming Island)—the new law’s author—says Florida lawmakers were within their rights to clarify the legislature’s intent.
“The Florida Supreme Court created an immunity hearing system and did so largely because the legislature had not been very specific in its original setup of the immunity system,” said Bradley. “So, now, the legislature has been clear on how immunity is to be handled, and I think the appellate courts will respect what the legislature has done in this area.”
Attorney General Pam Bondi is expected to soon appeal Hirsch’s decision. As the new law was a priority for the National Rifle Association, the gun rights group is expected to do the same.
The NRA’s Marion Hammer has called Hirsch’s ruling “bad,” and Florida Carry’s Eric Friday agrees. He was also the attorney for the defendant in the case that led to the 2015 Florida Supreme Court decision.
“Judge Hirsch’s ruling shows that we still have activist judges who are more interested in expressing their personal opinions, rather than following the law as passed by the legislature in the state of Florida,” said Friday.
Friday says no one asked for the ruling—not the defense attorney, nor the prosecutor. Yet, he adds the judge still proceeded.
“Well, I mean it’s within his power, but it’s also within the power of the appellate courts to overturn him, which I believe is going to happen,” he added. “The prosecutor didn’t even ask for this ruling. This is the judge doing this on his own, without even the support of the prosecutor making this argument for this decision.”
But, Panama City State Attorney Glenn Hess says the judge made the right call in doing it this way—by deciding on how the two cases he’s presiding over should proceed.
“The judge had to decide which law applies in the cases he was about to hear,” said Hess. “Either he was going to apply the law as it existed before the new bill or he was going to apply the new bill—as I’ll call it—and he made a ruling that, ‘we’re not going to use the new bill.’ He gave the reasons for it, and so a suit wasn’t required. Actually, this was the best way for it to come forth.”
Hess is the President of the Florida Prosecuting Attorneys Association, which staunchly opposed the bill during the legislative session.
Still, while it only applies to cases before the Miami Dade judge, Hess believes the ruling could have far-reaching statewide impacts down the road as questions will be raised in more courtrooms all across Florida.
“Throughout the state, we’re going to be having Stand Your Ground hearings,” he added. “Throughout the state, there will be defense attorneys who will argue the new bill should apply. And, the prosecutor will be arguing that the judge was correct in Miami, that this is procedural, that the legislature should not have interfered with the Florida Supreme Court’s procedure for presenting this defense. And, each judge that has this before them will have to decide.”
And, Hess says that’s when the high court will ultimately have to decide.
“We will have rulings in five appellate courts throughout the state,” he continued. “And, I’m pretty confident that we’ll see some conflict between at least two of them, which gives the Supreme Court the platform to step in and finally resolve it.”
For more news updates, follow Sascha Cordner on Twitter: @SaschaCordner.