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A Miami judge has ruled that a new provision in the states Stand Your Ground law is unconstitutional because the legislature overstepped its rightful authority when it increased protections for defendants in self-defense cases. Earlier this year the Florida legislature passedan amendmentto its 2005 Stand Your Ground law. The amendment SB 128 (re-instated) that the prosecution carries the burden of proof in pre-trial hearings, of self-defense incidents. Innocent until proven guilty has always been a foundational tenet of the United States justice system. Well, that is until last week [again]. Floridians involved in self-defense shootings are now presumed guilty in pre-trial hearings [again]. According to the updated law, prosecutors were to provide clear and convincing evidence that a defendant was not using force as an act of self-defense. (This was in the original 2005 law and by-passed by over zealous prosecuting attorneys and judges.) Miami-Dade Circuit Judge Milton Hirsch. a Democrat by the way, ruled on Monday that the amendment is unconstitutional,stating: As a matter of constitutional separation of powers, that procedure cannot be legislatively modified. Wow, all this time I thought the reason we spend millions of dollars sending our legislators to Tallahassee every year was to make laws, guess I was wrong? The Florida legislature passed the amendment in response to a 2015 decision by the Florida Supreme Court. In that decision, the court held that defendants are not innocent until proven guilty in pre-trial hearings. Defendants must prove their innocence with evidence that suggests the shooting was legal self-defense. The perp broke into my house, pulled a knife on me, I shot him he didnt make it. I must now prove, I didnt shoot him with intended malice? Or imagine you see a young, girl being attacked in broad daylight by criminals. Now, theres little time to spare. Though you have called 911 it will be fifteen minutes, to a half hour before Law Enforcement arrives. Nervous, but determined to do the right thing, you pull out your weapon. Un-holstering, you call out a direct warning to let the girl go. They somewhat acknowledge you, but refuse to comply, leaving you no other option and little time. You aim and fire. The girl is no longer in immediate danger, but thanks tothe perpetrators shell be long in recovery. The criminals, on the other hand, will make a full recovery. They walk free while charges against you are pressed on their behalf. You are arrested and denied bail. Youll be away from your family for over a year awaiting trial, and if convicted, youll never vote or be allowed to touch a firearm again.You try to remain calm, after all, the law is on your side, right? All that will be told via news is that you shot people. For that reason, you may serve up to 25 years in prison. As a convicted felon, your victims deserve hundreds of thousands of dollars in financial restitution. It may sound too awful to be true, but this is the direction this Miami Judge and our courts are moving. Over the past half century there have been amended and reinterpreted laws all too often reducing the role of the American jury from a moral user of fact, to a mere rubber stamp for activist judges and politically-minded prosecutors, who can now come to an agreement amongst themselves to block the accused from even arguing they acted to save lives in the face of mortal danger. Anti Second Amendment prosecutors, and the legal traditions of self-defense and defense of others, the very heart of the Second Amendment, becomes meaningless. The gun-control lobby could achieve many of its goals without actually repealing the right to bear arms or passing further gun control laws. Judge Hirsch found that the changes to the law were procedural, meaning only the Florida Supreme Court has the right to make them, as they did in 2015. Where one had to prove he/she fought in self defense. Hirschs decision doesnt overturn the law, but it does begin the process that could end with another decision by the liberal Florida Supreme Court. Sen. Rob Bradley, R-Fleming Island, told theMiami Heraldhe believes the legislature acted lawfully and the appeals process wont reach the highest court in the state. I would be surprised if this decision were upheld at the appellate level, said Bradley, a former prosecutor who championed the amendment in question. Prosecutors for whatever reason vehemently opposed to the Stand Your Ground modification, arguing that the law would require them to try the case twice and make it easier for criminals to skate on violent charges. Since the defendant is asking for immunity from prosecution, they argue, the defendant should be required to prove they acted in self-defense. Theres a strong concern that many more defendants will invoke the Stand Your Ground defense because they know it will shift more work onto the state attorneys on the front end. But the amendments proponents argue that the state should not draw a distinction between seeking immunity at pre-trial hearings and pleading innocent at the trial itself. What this bill does, my friends, is put the burden of proof where I would, respectively, suggest it should rightfully be, From the beginning of a criminal case to the end, of a criminal case, it belongs with the state. The standard of proof should be beyond a reasonable doubt.

George Pouliotte

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Florida 'Stand Your Ground' Is Now Unconstitutional, [Again]. - ECB Publishing

MARION, Iowa (KCRG-TV9) - The Marion Police Department charged Matthew Boleyn, 37, with Disorderly Conduct and Criminal Mischief 4th degree on July 12.

Boleyn came to the Marion police department and was cited and released on a promise to appear in court for an incident that happened on June 22.

Around 11:40 p.m. Boleyn caused damage to Samuel Gires car by shattering his window, resulting in the Criminal Mischief charge.

Boleyn was also charged with Disorderly Conduct. He was charged due to exiting his car, challenging Gire and one other person to a physical fight, and then breaking out Gires car window.

This led to Boleyn being shot by Gire, while Gire was still in his vehicle.

The Marion Police Department has determined that Gire was acting in self-defense and reviewed the new Stand Your Ground law.

To read previous KCRG-TV9 coverage go to:

http://www.kcrg.com/content/news/UPDATE-Road-rage-causes-shooting-near-Marion-Library--431770263.html

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New Stand Your Ground Law used in Marion shooting - KCRG.com - KCRG

TAMPA (FOX 13) - Recently, a Miami judge stirred the pot on an already controversial stand-your-ground law.

Two months ago, lawmakers tweaked the states law and shifted the burden from the shooter to the prosecutor. Now the state attorney has to prove the shooter was not acting in self-defense.

A Miami judge ruled the new law was unconstitutional because he said lawmakers overstepped their authority. The judge said, under Florida's Constitution, only the Supreme Court can make those changes

Hillsborough's new state attorney, Andrew Warren, thinks the new law is anti-law-and-order.

"There is chaos and confusion in the system and that was a foreseeable consequence of this legislation, he said. This law makes it harder to prosecute crimes.

Warren believes shifting the burden to prosecutors makes it easier for criminals to get away with it -- and in Tampa, defendants are not wasting any time.

"We've probably had more stand-your-ground motions in the last few weeks than in the six months prior, Warren continued. We have violent offenders that are trying to exploit this loophole to avoid prosecution.

Just this week, the new stand your ground law was already being tested in a Tampa courtroom. Randolph Graham, accused of killing a former USF football player, wanted the new law applied in his case.

Prosecutors fought it claiming it wasn't retroactive, but a Tampa judge disagreed. A day later, different judge from South Florida ruled the law is not retroactive.

Two conflicting rulings in two days.

Warren doesn't think the chaos and confusion will go away anytime soon. It could take months or years before we have some clarity on what the legislature was trying to do.

Warren believes the issue will make it all the way to our state Supreme Court.

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Conflicting rulings cloud stand-your-ground law - FOX 13 News, Tampa Bay

Plant City Observer

Good Appeal: Florida's 'Stand Your Ground' Law Plant City Observer Florida Governor Rick Scott signed into law this month an amended Stand Your Ground law. This new amendment makes it easier for defendants to successfully claim they were protecting themselves in a violent situation. Before this amendment, the law ...

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Good Appeal: Florida's 'Stand Your Ground' Law - Plant City Observer

Scott Houston/Polaris/NewscomMiami 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.

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Florida Judge Strikes Down Part of Stand Your Ground Law - Hit ... - Reason (blog)