Revisions to Florida’s Controversial “Stand Your Ground” Law May be Unconstitutional

Florida’s “Stand Your Ground” self-defense law, which eliminated a citizen’s duty to retreat before using deadly force to counter an apparent threat, has garnered controversy since it was enacted in 2005. Critics believe it fosters a “shoot-first mentality” and allows killers and other violent criminals to skirt justice. The law gained national notoriety in 2012 when neighborhood watch member George Zimmerman shot and killed Trayvon Martin, an unarmed teenager. At trial, Zimmerman was acquitted of second-degree murder after jurors received instructions on the “Stand Your Ground” law.

Florida’s lawmakers recently revised the law, backed by the National Rifle Association. Prior to the revision, criminal defendants bore the burden of proving their entitlement to Stand Your Ground immunity by the preponderance of the evidence at a pretrial evidentiary hearing. The new revision shifts the burden of proof to the State of Florida, requiring prosecutors to prove (in a mandatory pre-trial hearing) that a criminal defendant was not acting in self-defense before any trial can take place. Additionally, the revision required the State to prove this by “clear and convincing evidence,” a more elevated burden of proof than “preponderance of the evidence.” State prosecutors have firmly opposed the change, arguing that it makes it easier for defendants to get away with murder and other violent crimes, unfairly requires the State try a case twice, and makes it easier for judges to dismiss criminal charges without a jury hearing the case.

In July, Miami-Dade Circuit Judge Milton Hirsch ruled that the update to the law was unconstitutional. Judge Hirsch held that the changes should have been crafted by the Florida Supreme Court instead of the Legislature. Under the Florida Constitution, wrote Judge Hirsch, the legislature may create substantive law, but only the judiciary may make procedural law. Judge Hirsch found that altering the burden of proof was a procedural change, and that “[a]s a matter of constitutional separation of powers, that procedure cannot be legislatively modified.” Two weeks ago, a second Miami-Dade Circuit Judge issued a ruling siding with Judge Hirsch. Judge Alan Fine held that “[i]t is unavoidably true that the Florida Constitution gives the Legislature no authority to enact legislation governing the practice of procedure in a court of law” and that “[t]he only such grant is to the Supreme Court.”

The State is challenging the ruling to an appellate court, placing the Florida Attorney General’s Office in the unique position of siding with a criminal defendant. As no appellate court has ruled on the issue, both Judge Hirsch and Judge Fine’s holdings are not binding, and other trial judges across the state may follow the law until an appeals court, and most likely the Florida Supreme Court, decide on the issue.


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