Posted on 07/03/2017 10:44:16 AM PDT by rarestia
MIAMI --
A judge has ruled that Florida's lawmakers overstepped their authority in updating the state's "Stand Your Ground" ruling.
Ruling issued Monday by Miami-Dade circuit judge Was signed into law in June by Gov. Rick Scott
In ruling the law unconstitutional, Miami-Dade Circuit Judge Milton Hirsch said Monday that the changes should have been crafted by the Florida Supreme Court instead of by the Legislature.
The Miami Herald reports that the 14-page order is a victory for prosecutors who have firmly opposed the law.
Critics have said the law makes it easier for defendants to get away with murder and other violent crimes.
The Legislature modified the 2005 statute and Gov. Rick Scott signed it into law in June. The bill was backed by the National Rifle Association.
Under the law, prosecutors must prove by "clear and convincing" evidence that someone wasn't acting in self-defense.
Under Florida’s state constitution, it is the state Supreme Court which creates courtroom procedure; the judge interpreted the legislative directive that prosecutors must prove clear and convincing evidence that someone did not use force in self defense before moving out of the immunity phase and to a jury trial.
As the legislature did not change the laws in regards to the charge of murder or manslaughter and instead inserted directives into what must take place in a courtroom, I think the judge’s decision here will be upheld on appeal. The legislature should have modified the laws instead.
I’d also suggest modifying the laws to include stripping both officers and prosecutors of any civil immunity and permit them to be personally sued in the case of egregious and malicious prosecution over actions of self defense.
I’d imagine that would be far more effective than merely changing the law to make it harder to prosecute someone for defending themselves.
Based on the statements of the judge their ruling should be disregarded until a higher court can hear the case. Tell the judge they can enforce their ruling with their army. When they get one.
I would suggest that the judge is errantly defining the law as a a procedural rule; IOW he created a straw man and then knocked it down...
Unless the legislature forbade the judiciary from crafting procedural rules to comply with the law, there should be no problem....
Close. It was JUDD Hirsch. :-)
As a retired lawyer, I am about to commit the cardinal sin of commenting about a court decision without having read it.
If the state constitution indeed says what kingu says, the judge may be on reasonable ground here. The power to make (state) laws derives from the constitution, not from the legislature. The constitution gave the right to make court procedural rules procedural laws to the State Supreme Court, not to the legislature.
But there are still several questions to be answered before the judge is correct in his ruling (he may have addressed them in his opinion which I have not read). First, is the “burden of proof” rule enacted by this statute “court procedure” (to be made by the State Supreme court), or is part of the definition of what constitutes a crime and what things are considered to be legitimate defenses to the crime (made by the legislature).
Second, if it is considered to be “court procedure”, is the power exclusive to the State Supreme Court or does the legislature have any ability to modify rules they don’t like.
There are a number of other questions. But it may not be something that can be resolved by simple high school civics.
If the stand your ground law law has ample support in the legislature, it should be easy to fix the technical problem by enacting a statute a that , for example says that a prosecutor cannot file a charge in criminal court at all before securing a ruling that the use of force was not justified, which must be proven by him under the standard required by the statute.
It is pretty likely that the legislature controls what cases can be filed in the first place by a prosecutor. If it is not yet in court, the prosecutor must satisfy the requirements established by the legislature for the case to be filed in court.
There are a number of other ways to skin this cat that should work.
People don’t usually pay attention to Judicial elections. This one deserves attention.
“...I don’t even know what to say....”
I do.
Have the Legislature AND the Governor override it.
Let the asshole Judge try to enforce it, like President Andrew Jackson said.
Citizens’ rights take precedence over the asshole judge’s political whim.
Good points. Thank you for posting.
Thanks for the clarity.
And no, I didn’t read the decision either. (I’m an engineer, therefore don’t “do” legal reading willingly but have spent enough time around lawyers to enjoy the way their minds work and will cheerfully wait for ‘em to read that stuff for me.)
Anyway, the short, crude and simple explanation for what’s just happened seems to be not that this judge has totally overstepped the bounds but that the folks in the legislature composing this law (who I’m going to assume are either lawyers themselves or have lawyers on their staff, all of whom should know better) either got lazy and wrote up a mess that was an open invitation to get jammed back down their throats or just that this bill was just a giant head fake from the start.
Considering the number of lawyers running around the state legislatures anywhere in the country, I’m afraid I’ll have to pick Door Number 2.
The clincher for that argument should be the number of the authors of the bill in mourning about that dastardly judge who show up on television next week, then rush off to raise contributions for their Continued Defense of Your Second Amendment and then
don’t
do
jack
squat.
(I’ll base this theory on Murphy’s First Law: “Anything that can go wrong, will” and The Evil Engineer’s Corollary which simply claims that Murphy was an optimist. QED)
exactly.
If this were the way it should be, then why bother with a legislature?
I am actually quite cynical about the courts. It may be that this judge, who apparently totally opposes this law based on his private philosophy, decide some of the technical points the way they needed to be decided to reach the result he predetermined. In other words, he may have decided the result he wanted, and worked backwards to come up with the reasoning needed to “justify” the result.
That obviously is not supposed to be how it works, but people are people and cannot always be counted on to always put there personal biases aside. That seems to be happening even less often these days than years ago as a law student when I recall reading cases where the judge went out of his way to say he did not like the result, but only the legislature and not a judge can change the law.
Conservatives who believe in the rule of law is more than the private opinion of some judge, should devote effort to change the system to make it easier to overturn judicial decisions (even Supreme Court decisions) that ignore the will of the people.
This will be very hard to do when public opinion is fairly evenly split and one side feels that they control the courts and can use them to achieve goals that never could in the legislature.
It may take some terrible outrage like a court decision that favors terrorists over ordinary people, and people get killed as a direct result.
The Florida Supreme Court should be crafting the law and not the legislature?! Quick somebody send this bonehead “judge” a copy of the Constitution. This bonehead is the one who is “unconstitutional”. Clueless as hell about how the government works.
Did I just read this correctly. The court thought the court should have written the law and not the legislature?
S-S-S
Hopefully he will have a visit one day soon by those he loves so much and he will change his mind quickly and he will of course call those dreaded police officers to protect his sorry commie butt.
I do my best to keep a bright face on the situation, but:
1) I’m past cynicism not only in reference to the courts as exemplified in this decision but the entire structure (aka Establishment) at all levels. Hence my stab at the Florida legislators.
2) “Change the system” is my very last and most fervent hope for myself, my family and this country. If it can’t be done very soon, peacefully and within the law, I don’t really want to contemplate what I will have to do.
.............
Okay, that’s the deepest, darkest musings I have on that subject.
Trump’s election and performance over the past months along with the outcomes of various special elections (including our new Montana US Representative) have had the effect (for me) of re-defining that ominous “very soon” to “maybe right after the elections in November”.
I’ll just keep working, watching and praying.
Have a Happy 4th.
“In ruling the law unconstitutional, Miami-Dade Circuit Judge Milton Hirsch said Monday that the changes should have been crafted by the Florida Supreme Court instead of by the Legislature.”
This is the stuff of sarcasm sites, like The Onion. Seriously?
Looks like he’s cleverly hidden his man bun/ponytail
Have blacks been taking advantage of “Stand Your Ground” law? I have read that a lot more people are now being killed in states that have passed such laws. Don’t know exactly who is dying.
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